12-012 OFFICIAL RECORD
CITY OF SOUTHLAKE
RESOLUTION NO. 12 -012
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SOUTHLAKE, TEXAS, APPROVING AN INTERLOCAL
AGREEMENT AND LICENSE AGREEMENT WITH THE TOWN OF
WESTLAKE FOR THE INSTALLATION AND OPERATION OF TW
KING 30" WATERLINE WITHIN TOWN OF WESTLAKE RIGHT OF
WAY ADJACENT TO FM 1938.
WHEREAS, the state requires water purveyors to provide a safe and adequate supply of
water to citizens and water customers within their geographic service area; and
WHEREAS, the provision of water service throughout the City of Southlake is of vital
importance to the health, safety, and welfare of the citizens of Westlake; and
WHEREAS, Southlake desires to secure and maintain an adequate potable water source for
the health, safety, and welfare of the citizens of Southlake; and
WHEREAS, Southlake desires to build an alignment of the proposed TW King 30"
waterline along the east FM 1938 right of way line belonging to the Town of Westlake; and
WHEREAS, the City Council finds that the inter local and license agreement with the Town
of Westlake is sound infrastructure planning consistent with goals and objectives within the
adopted master plan; and
WHEREAS, the City Council finds that the passage of this Resolution is in the best interest
of the public.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SOUTHLAKE, TEXAS:
SECTION 1: That, all matters stated in the Recitals hereinabove are found to be true and
correct and are incorporated herein by reference as if copied in their entirety.
SECTION 2: That the City of Southlake City Council does hereby approve the proposed
Interlocal Agreement, attached as Exhibit "A ", and a License as further reflected in Exhibit
"B" to install and operating the TW King 30" Waterline within the Town of Westlake Right -
of -Way adjacent to FM 1938.
SECTION 2. That the City of Southlake City Council hereby authorizes the Mayor to sign
exhibits "A" and "B" on behalf of the City of Southlake.
SECTION 3: If any portion of this Resolution shall, for any reason, be declared invalid by
any court of competent jurisdiction, such invalidity shall not affect the remaining provisions
hereof and the Council hereby determines that it would have adopted this Resolution without
the invalid provision.
SECTION 4: That this resolution shall become effective from and after its date of passage.
PASSED AND APPROVED ON THIS 7 DAY OF FEBRUARY 2012.
ATTEST: : L 4
John Terrell, Mayo
ir
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Alicia Richardson, City Secretary" -,, • ,,c
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APPROVED AS TO FORM:
City Attorney
INTERLOCAL AGREEMENT FOR FUNDING, USE, CONSTRUCTION AND MAINTENANCE
OF
T.W. KING 30 -INCH WATER TRANSMISSION LINE
IN THE TOWN OF WESTLAKE, TEXAS
BETWEEN
THE CITY OF SOUTHLAKE, TEXAS
AND
THE TOWN OF WESTLAKE, TEXAS
DATED AS OF , 2012
1
ui-0ANAL ouk.,umtri
cm/ OF SOUTHLAKE
Council Action: N Ord./Res. No.
Date Approved 7
INTERLOCAL AGREEMENT FOR FUNDING, USE, CONSTRUCTION AND MAINTENANCE
OF
T.W. KING 30-INCH WATER TRANSMISSION LINE
IN THE TOWN OF WESTLAKE, TEXAS
BETWEEN
THE CITY OF SOUTHLAKE, TEXAS
AND
THE TOWN OF WESTLAKE, TEXAS
DATED AS OF C-e,l)v" ti 11 , 2012
1
INTERLOCAL AGREEMENT FOR FUNDING, USE, CONSTRUCTION -
AND MAINTENANCE OF T.W. KING 30 -INCH WATER TRANSMISSION LINE
IN THE TOWN OF WESTLAKE, TEXAS
STATE OF TEXAS §
COUNTY OF TARRANT §
This Interlocal Agreement for the Funding, Use, Construction and Maintenance of T.W.
King 30 -Inch Water Transmission Line (this "Agreement ") is entered into as of the "
day o f t ' ' t "LI , 2012, between the City of Southlake, Texas ( "Southlake ") and the Town
of Westlake, Texas ( "Westlake ").
PURPOSE:
The purpose of this Agreement is to provide terms for the following: (1) construction by
Southlake of the T.W. King Water Transmission Line, a proposed thirty inch (30 ") water
transmission line to provide for the transmission of water from the intersection of Florence Road
and Pearson Lane in Southlake through portions of Westlake and Southlake to the Southlake T.
W. King Pump Station; (2) sole ownership of the T. W. King Water Transmission Line by
Southlake; (3) for the right of Westlake to use the T. W. King Transmission Line without cost to
purchase up to two million gallons per day (2 mgd) directly from the City of Fort Worth upon
execution of an interlocal agreement with the City of Fort Worth and construction of the
necessary access and metering facilities; (4) the granting to Southlake by Westlake of a license
agreement through right of way currently owned by Westlake; and (5) operation and
maintenance of the T. W. King Water Transmission Line and such water supply facilities and
metering stations by Southlake
RECITALS:
Whereas, Southlake and Westlake currently have contracts with the City of Fort Worth
( "Fort Worth ") to purchase wholesale treated water (the "Fort Worth Contract "); and
Whereas, prior to 2004, water purchased from Fort Worth by Southlake and Keller was
transmitted through a thirty inch (30 ") water line from the Fort Worth Wholesale Milling Meter to
the Keller and Southlake Pearson Pump Stations; and
Whereas, on January 20, 2004, Southlake and Keller entered into a contract for the
financing, construction, and maintenance of a forty -two inch (42 ") water transmission line from
the City of Fort Worth Caylor Pump Station to the Keller and Southlake Pearson Pump Stations
(the "Caylor Transmission Line "); and
Whereas, thereafter, Southlake and Keller constructed and are currently maintaining the
Caylor Transmission Line as described above; and
Whereas, Southlake intends to construct the T. W. King Water Transmission Line (the
"T. W. King Transmission Line ") in order to supply water from the Caylor Transmission Line
north from the intersection of Florence Road and Pearson Road through Westlake to the
Southlake T.W. King pump station north of SH 114; and
1
Whereas, the construction of the T. W. King Transmission Line will require a wholesale
water meter located at a mutually agreeable location approved by the Fort Worth Water
Department and meeting Fort Worth standards; and
Whereas, Southlake shall not enter into any agreement concerning the ownership,
management or operation of the T. W. King Transmission Line which would alter the rights
granted to Westlake under the terms of this Agreement without the prior written consent of
Westlake; and
Whereas, the most desirable route for the T. W. King Transmission Line is in a separate
Utility Easement/Right -of Way owned by Westlake adjacent to the proposed alignment for
Randol Mill Avenue (FM 1938) through Westlake; and
Whereas, Westlake shall be entitled to access up to two million gallons per day (2 mgd)
from Fort Worth out of the capacity of the T. W. King Transmission Line; and
Whereas, Southlake agrees to grant Westlake up to two million gallons per day (2 mgd)
from Fort Worth out of the T. W. King Transmission Line in consideration for the use of
Westlake's utility easements and rights -of -ways as shown in a License Agreement attached
hereto as Exhibit "A" (the "License Agreement "); and
Whereas, Southlake adopted a new contract with Fort Worth to provide for the
connection of the T. W. King Transmission Line to the Fort Worth water system, and
Whereas, Westlake adopted a new contract with Fort Worth Water to purchase an
additional 2 MGD directly from Fort Worth and Westlake shall pay for their water usage directly
to Fort Worth to be delivered by and through the T. W. King Transmission Line; and
Whereas, Southlake and Westlake have negotiated separate contracts with Fort Worth
to pay for their water usage directly to Fort Worth; and
Whereas, Southlake and Westlake have determined it to be in the best interest of their
citizens for Southlake to fund, construct, operate and maintain the T. W. King Transmission Line
beginning from the intersection of Pearson and Florence Roads, then proceeding east on
Florence Road to Randol Mill Avenue, then north along Randol Mill Avenue (the proposed FM
1938 alignment) to Precinct Line Road and continuing north to SH 114, then east along SH 114
to T.W. King Road, then northeast to its point of terminus at the T.W. King Pump Station; and
Whereas, the route of the T. W. King Transmission Line permits both Southlake and
Westlake to access water from the T. W. King Transmission Line; and
Whereas, the T. W. King Transmission Line shall initially be used for the transmission of
water solely to Southlake, and, once Westlake chooses to begin to access a portion of the water
from the T. W. King Transmission Line, to both Westlake and Southlake; and
Whereas, Southlake and Westlake agree that the costs for the construction, operation
and maintenance of the T. W. King Transmission Line shall be funded solely by Southlake, and
that Westlake's sole obligations shall be to provide the License Agreement to Southlake and to
pay directly all water charges assessed by Fort Worth for water purchased by Westlake
transported through from the T. W. King Transmission Line; and
Page 2
Whereas, Southlake will provide a "tee" at a location in Westlake on the T. W. King
Transmission Line yet to be determined and Westlake will construct a future metering station
meeting Fort Worth requirements; and
Whereas, Sections 402.001 and 402.075 of the Texas Local Government Code and
Chapter 791 of the Texas Government Code authorize Southlake and Westlake to enter into
this Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein, Southlake and Westlake agree as follows:
ARTICLE I. INCORPORATION OR RECITALS
All provisions, statements, agreements, terms and conditions stated in the preamble
above are found to be true and correct and are incorporated into the Agreement in their entirety.
ARTICLE II. DEFINITIONS:
Construction Costs means all design, legal, consulting and engineering fees, the costs of
permitting, surveying, land and easement acquisition, and construction and inspection costs, for
the T. W. King Transmission Line, including any Capital Improvements or Facility Expansion of
such line, but excluding the costs of the water meter to be installed at the Westlake tee and any
other facilities necessary for Westlake to connect to such line.
Capital Costs means all costs and expenses, debt service, principal, interest and other
common debt service costs, including fees, closing costs, bond costs, legal expenses, and
lender or bank fees associated with construction financing of the T. W. King Transmission Line.
Caylor transmission line means a forty -two inch (42 ") /thirty -inch (30 ") water transmission
line from the City of Fort Worth Caylor Pump Station to the intersection of Pearson Lane and
Florence Lane, which line has a total gravity capacity of twenty -nine million gallons per day (29
mgd) and a future planned capacity of thirty -seven million gallons per day (37 mgd).
Force Majeure means acts of God, strikes, lockouts or other industrial disturbances, acts
of public enemy, orders of any kind of the government of the United States or the State of
Texas, or any civil or military authority, insurrection, riots, epidemics, landslides, lightning,
earthquake, fires, hurricanes, storms, floods, washouts, arrests, restraints of government and
people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals,
partial or entire failure of water supply, and inability on the part of Southlake to deliver water
hereunder or Westlake to access water hereunder on account of any other cause not
reasonably in the control of the party claiming such inability.
mgd means million gallons per day.
Southlake System means the Southlake water utility system.
Southlake Manager means the City Manager of the City of Southlake, or his /her
designee.
System Water Losses means the loss of water between the Fort Worth water meters
(Caylor and Alta Vista (i.e., North Beach) and the total of the Keller, Southlake, and Westlake
Page 3
(when in service) water meters in place at any given point in time measuring water flow out of
the Caylor and T. W. King Transmission Lines.
T. W. King Transmission Line means a 30 -inch water transmission line to be designed
with a gravity capacity of twelve million gallons per day (12 mgd) and a future planned capacity
of sixteen million gallons per day (16 mgd), and to be constructed by Southlake along a route
beginning from the intersection of Pearson and Florence Roads, then proceeding east on
Florence Road to Randol Mill Avenue, then north along Randol Mill Avenue (the proposed FM
1938 alignment) to Precinct Line Road and continuing north to the intersection of SH 114 and
Precinct Line Road (future FM 1938), then east along SH 114.
Westlake System means the Westlake water utility system.
Westlake Town Manager means the Town Manager of the Town of Westlake, or his /her
designee.
ARTICLE III. FACILITIES TO BE CONSTRUCTED
The facilities which are to be constructed pursuant to this Agreement are the T. W. King
Transmission Line, together with all associated surface improvements, except for the water
meter to be installed by Westlake at the location chosen by Westlake for its tee with the T. W.
King Transmission Line and the water meter to be installed by Southlake at the T. W. King
pump station as shown on the construction plans, and attached hereto as Exhibit "B ", or as may
be approved in writing by the Westlake Town Manager from time -to -time.
ARTICLE IV. ALLOCATION OF OWNERSHIP, CONTROL OF FACILITIES
Southlake shall have full ownership of, and the authority and obligation to control,
maintain and operate, the T. W. King Transmission Line. The parties agree to cooperate
regarding maintenance and operation of the T. W. King Transmission Line and Southlake may
request assistance from Westlake from time to time with regard to such responsibilities, and
Westlake will take reasonable efforts to cooperate regarding any such request for assistance.
All costs related to maintenance and operation of the T. W. King Transmission Line shall be
borne by Southlake.
ARTICLE V. ALLOCATION OF COSTS FOR FACILITIES
A. T.W. King Water Transmission Line
I. All costs for the T. W. King Transmission Line are to be paid solely by Southlake
and paid as follows unless otherwise defined in this Agreement or otherwise mutually agreed
upon in writing by both parties to this Agreement at a later date:
2. All design, engineering and construction plans for the T. W. King Transmission
Line have been approved by the parties as reflected in Exhibit "B" (the "Plans ") to the License
Agreement executed concurrently with this Agreement. The parties recognize that during the
construction phase of this project, change orders may be necessary to accommodate
unexpected or unanticipated engineering and construction issues. All design, engineering and
construction plans or drawings for a change order item must be approved in writing by the
Westlake Town Manager or his designee prior to any site work or construction taking place in
Westlake. Change order design, engineering and construction plans shall be reviewed and
Page 4
acted upon by Westlake within fourteen (14) days of submittal unless Westlake has provided
written objections or comments to any change orders.
B. Capital and Construction Costs for the T.W. King Transmission Line:
Southlake shall pay, or has already paid, for all Capital and Construction Costs related to
the construction of the T.W. King Transmission Line. By this Agreement and future purchase
agreements with and approval by Fort Worth, Westlake shall have full access, ownership, rights,
and privileges to 2 mgd of water from the T.W. King Transmission Line.
C. Operation, Maintenance and System Costs for the T.W. King Transmission Line:
Southlake shall pay for all Operation, Maintenance and System Costs for the T.W. King
Transmission Line.
D. System Water Loss Charges:
System water losses shall be calculated by Fort Worth based on the metered usage at
each of the delivery points established in the revised metering and billing contracts adopted
between all the cities participating in the use of the T. W. King Transmission Line system, and
billed by Fort Worth to Southlake and Westlake separately.
E. City of Fort Worth Water Impact Fees:
Westlake acknowledges that it is responsible and Southlake is not responsible for
charging and paying all Fort Worth Water Impact Fees taxed or attributable to water purchases
accessed by Westlake through the T. W. King Transmission Line
ARTICLE VI. EFFECTIVE DATE
The effective date of this Agreement is the date this Agreement has been finally
approved by the governing body of both Southlake and Westlake. Provided, however, that if
both parties have not received approval by the governing bodies by March 31, 2012, this
Agreement shall be null and void.
ARTICLE VII. METERING AND BILLING SERVICES
Westlake and Southlake shall each construct, at each respective city's cost, meter
stations at their respective metering points that meet the operational specifications of Fort Worth
that will accomplish metering for wholesale water consumptions. These metering stations shall
be turned over to Fort Worth for operation. Fort Worth shall read the meters and submit a water
bill to Westlake and Southlake representing their respective water consumptions, and neither
city shall have any responsibility to the other for payment of the other city's bill from Fort Worth.
ARTICLE VIII. RIGHTS -OF -WAY
A. Westlake shall grant to Southlake, without charge, a license agreement, in right -
of -way presently owned by Westlake as shown in attached Exhibit "C" within which to construct
the T. W. King Transmission Line along the route described herein. Westlake agrees to assist
Southlake in acquiring any additional easements or rights -of -way necessary for the construction
or maintenance of such line but such assistance shall exclude the requirement to expend funds
Page 5
of the Town of Westlake or to exercise Westlake's power of eminent domain. Southlake shall
not attempt to obtain any easements, rights -of -way or property rights in Westlake unless it shall
first provide the Town of Westlake with sixty (60) days written notice of its intent to acquire such
interest. The notice shall identify the property to be acquired and the reason that the acquisition
is necessary. Westlake, at its sole election, may waive the sixty (60) day notice provision on a
case -by -case basis after reviewing any such request.
B. All work done by or on behalf of Southlake under this Section will be performed in
accordance with specifications equal to those applying to work of a similar nature performed
within Southlake subject to receiving advance written approval by Westlake. Restoration of
property within Westlake shall be performed to achieve a condition equal or greater than its
original condition and shall be completed expeditiously.
The Town of Westlake has full approval over the exact location of the T. W. King
Transmission Line within Westlake, as well as the ability to require boring to avoid tree loss. Any
trees lost as a result of the rights in this Agreement shall be promptly replaced by Southlake in
accordance with the then applicable tree mitigation and replacement ordinances of Westlake.
ARTICLE IX. TERMINATION
This Agreement may be terminated in whole or in part by the mutual consent of
Westlake and Southlake. Notwithstanding anything contained herein to the contrary, any
breach by either party hereto to perform any of the duties or the obligations assumed by such
party hereunder or to faithfully keep and perform any of the terms, conditions and provisions
hereof shall be cause for termination of this Agreement by either party in the manner set forth in
this Section. Either party desiring to terminate this Agreement shall deliver to the other party 90
days prior written notice of its intention to so terminate this Agreement. If such breach is not
timely cured the party desiring to terminate the Agreement shall have the right without any
further liability whatsoever to declare this Agreement terminated
ARTICLE X. RELEASE OF LIABILITY FOR DAMAGES
Contracts made and entered into by either Westlake or Southlake for the construction,
reconstruction or repair of any water utility facility related to the T. W. King Transmission Line
shall include the requirement that the independent contractor(s) must provide adequate
insurance protecting both Westlake and Southlake as co- insured's. Such contract must also
provide that the independent contractor(s) agree to indemnify, hold harmless and defend both
Westlake and Southlake against any and all suits or claims for damages of any nature arising
out of the performance of such contract.
ARTICLE XI. FORCE MAJEURE
If by any reason of force majeure, either party hereto shall be rendered unable, wholly or
in party, to carry out its obligations under this Agreement, then if such parties shall give notice
and full particulars of such force majeure in writing to the other party within a reasonable time
after the occurrence of the event or cause relied on, the obligation of the party giving such
notice, so far as it is affected by such force majeure, shall be suspended during the continuance
of the inability then claimed, but for no longer period, and such party shall endeavor to remove
or overcome such inability with all reasonable dispatch.
Page 6
ARTICLE XII. NOTICE
All notices, requests and communications under this Agreement shall be given in writing,
addressed to Southlake or Westlake at their respective addresses set forth below and either (i)
hand delivered, (ii) sent by telecopy or a nationally recognized overnight courier service, or (iii)
mailed by registered or certified mail, return receipt requested, postage prepaid.
To Westlake: To Southlake:
Town of Westlake City of Southlake
3 Village Circle, Ste 202 1400 Main Street, Ste 320
Westlake, Texas 76262 Southlake, Texas 76092
Attn: Town Manager Attn: City Manager
With copies to (which
Shall not constitute notice):
L. Stanton Lowry
Boyle & Lowry, L.L.P.
4201 Wingren Dr., Suite 108
Irving, Texas 75062
Any notice under or pursuant to this Agreement and given in accordance with this
Section shall be deemed received upon the earlier of: (i) actual receipt, (ii) if mailed, three (3)
days after deposit in an official depository of the United States Postal Service, and (iii) if sent by
a nationally recognized overnight courier service, the day following the mailing. Any party may
change its address for notice purposes by sending the other party a notice of the new address.
ARTICLE XIII. MEDIATION
Whenever any disputed matter is specifically authorized by this Agreement to be
determined by the use of a mediator, the following procedure is to be followed. The party
requesting that the dispute be settled by mediation shall serve on the other party a request in
writing that such matter be submitted to mediation. Westlake Town Manager and Southlake
City Manager shall mutually agree in writing on the selection of any mediator. Such Agreement
shall be made within ten (10) days from the date that the request for mediation is received. If an
Agreement is not reached on the selection of the impartial mediator on or before the 10 day
after the date that notice is received, the Southlake City Manager shall immediately request a
list of seven (7) qualified neutral mediators from the Federal Mediation and Conciliation Service,
or either's successor in function. Westlake Town Manager and the Southlake City Manager
may mutually agree on one of the seven (7) mediators on the list to mediate the dispute. If they
do not agree within five working days after the receipt of the list, the Westlake Town Manager
and the Southlake City Manager shall alternate striking a name from the list and the name
remaining shall be the mediator. Westlake Town Manager and the Southlake City Manager
shall mutually agree on a date for the mediation hearing. The decision of the mediator shall not
be final, but shall be a condition precedent to filing suit. All costs of mediation shall be
considered an Operation and Maintenance Cost. Mediation shall take place in Tarrant County,
Texas.
Page 7
ARTICLE XIV. INSPECTION AND AUDIT
Each party hereto shall keep complete records and accounts pertaining to this
Agreement in accordance with state law or for a minimum period of five years. 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; and further, if required by any law, rule or
regulation, make said records and accounts available to federal and /or state auditors.
ARTICLE XV. MISCELLANEOUS
This Agreement is subject to all applicable federal and state laws and any applicable
permits, amendments, orders, or regulations of any state or federal govemmental authority
having or asserting jurisdiction, but nothing contained herein shall be construed as a waiver of
any right to question or contest any such law, order, rule or regulation in any forum having
jurisdiction.
Southlake and Westlake agree to abide by any changes in this Agreement made
necessary by any new, amended, or revised state or federal regulation.
ARTICLE XVI. ACCESS
Upon prior notice by either party, any authorized employee or representative of such
party bearing identification shall notify the other party of need for access to any premises
located within the other party's service area or served by the other party as may be necessary
for the purpose of inspections and observation, measurements, sampling and testing and /or
auditing, in accordance with the provisions of this Agreement. The other party may elect to
accompany the requesting party's representative. To the extent permitted by law, the
requesting party agrees to indemnify the other party for any damage or injury to person or
property caused by the negligence of such duly authorized employee while such employee is in
the course and scope of his employment.
ARTICLE XVII. SPECIFIC PERFORMANCE
This Agreement shall be specifically enforceable by the parties hereto.
ARTICLE XVIII. VENUE
This Agreement is performable primarily in Tarrant County, Texas, and venue for any
action shall be in Tarrant County, Texas.
ARTICLE XIX. SAVINGS AND SEVERABILITY
It is agreed that, in the event any term or provision herein contained is held to be invalid
by any court of competent jurisdiction, the invalidity of such term or provision shall in no way
affect any other term or provision contained herein; further, this Agreement shall then continue
as if such invalid term or provision had not been contained herein.
Page 8
ARTICLE XX. ASSIGNMENT
Westlake may not assign this Agreement without the prior written consent of Southlake.
Southlake may not assign this Agreement without the prior written consent of Westlake.
ARTICLE XXI. INDEMNIFICATION
To the extent permitted by law, Southlake agrees to indemnify and save and hold
Westlake harmless from all claims, liabilities, demands, attorneys' fees and causes of
action asserted by any third party arising from any negligent act or omission of
Southlake. This covenant is not made for the benefit and shall not inure to the benefit of
any third party.
ARTICLE XXII. AMENDMENT
Any agreement hereafter made between Southlake and Westlake shall be ineffective to
modify, release, or otherwise affect this Agreement, in whole or in part, unless such agreement
is in writing and signed by both parties.
ARTICLE XXIII. WAIVER
The failure of either party to this Agreement to complain of any action, non - action, or
default of the other party shall not constitute a waiver of any of such party's rights under this
Agreement.
Waiver by either party to this Agreement of any right for any default of the other party
shall not constitute a waiver of any right for either party for a prior or subsequent default of the
same obligation or for any prior or subsequent default of any other obligation.
No right or remedy of either party under this Agreement or covenant, duty, or obligation
of either party under this Agreement shall be deemed waived by the other party to this
Agreement unless such waiver is in writing and signed by the waiving party.
ARTICLE XXIV. PARTIES AND SUCCESSORS
Subject to the limitations and conditions set forth elsewhere herein, this Agreement shall
bind and inure to the benefit of the respective heirs, legal representative, successors, and
assigns of the parties hereto.
ARTICLE XXV. CAPTIONS
The captions in this Agreement are inserted only as a matter of convenience and for
reference and they in no way define, limit, or describe the scope of this Agreement or the intent
of any provision hereof.
ARTICLE XXVI. NUMBER AND GENDER
All genders used in this Agreement shall include the other genders, the singular shall
include the plural, and the plural shall include the singular, whenever and as often as may be
appropriate.
Page 9
ARTICLE XXVII. ENTIRE AGREEMENT
This Agreement, including all exhibits which may be attached hereto (which exhibits are
hereby incorporated herein and shall constitute a portion hereof) contains the entire agreement
between Westlake and Southlake with respect to the subject matter hereof. Further, the terms
and provisions of this Agreement shall not be construed against or in favor of a party hereto
merely because such party or its counsel is the drafter of this Agreement.
ARTICLE XXVIII. ATTORNEY'S FEES
In the event Southlake or Westlake defaults in the performance of any of the terms,
agreements or conditions contained in this Agreement and the enforcement of this Agreement,
or any part thereof, is placed in the hands of any attorney who files suit upon the same, the non -
prevailing party shall pay the reasonable attorneys' fees, expenses and costs of the prevailing
party, as permitted by Texas Local Govemment Code Section 271.159.
ARTICLE XXIX. NO WAIVER OF GOVERNMENTAL IMMUNITY
Except to the extent expressly provided or necessarily implied otherwise herein, neither
party waives its governmental immunity from suit or liability.
ARTICLE XXX. NO THIRD PARTY BENEFICIARIES
There are no third -party beneficiaries to this Agreement.
EXECUTED as of the date hereinabove first set forth.
CITY OF SOUTHLAKE, TEXAS TOWN OF WESTLAKE, TEXAS
‘? Ailaillia
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vet ec te F , "�'ty- Mannager Tom Brymer, n Manager
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ATTEST: o`'•' '• ATTEST: ; 4 3.
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Alicia Richardson, City S ry :Kelly Edwards` own Secretary �� � \
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Approved estop Form �. Approva to Form "- --
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Southlake City Attorney ,r Town of Westlake Attorney
Page 10
UNDERGROUND WATER LINE LICENSE AGREEMENT
This Underground Water Line License Agreement (this "Agreement ") is entered into as
of rr u 4 9 '1 , 2012, between the TOWN OF WESTLAKE, TEXAS, a municipal
corporation of Tarrant and Denton Counties, Texas ( "Westlake ") and the CITY OF
SOUTHLAKE, TEXAS, a municipal corporation of Tarrant County, Texas ( "Southlake).
For and in consideration of $10.00 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and in consideration of the covenants
contained herein, Westlake and Southlake agree as follows:
1. Subject to the terms of this Agreement, Westlake hereby grants to Southlake a
license (the "License ") over, under and across the property described in attached Exhibit "A"
(the "License Tract "). This grant is made subject to all matters of record affecting the License
Tract.
2. The License shall only be used for the purpose of constructing, installing,
reconstructing, using, operating, maintaining and removing an underground water line known as
the 30 inch T. W. King Water Transmission Line (the "Line "), together with the right of ingress
and egress along and upon the License Tract. The Line must be constructed and installed
pursuant to the engineering and design plans as shown on attached Exhibit `B" (the "Plans "),
and in accordance with the terms and conditions of the Interlocal Agreement by and between
Westlake and Southlake dated F44V u 10 . 4 1, 1 2012, and attached hereto as Exhibit "C" (the
"ILA "). Further, this License shall automatically terminate should actual construction of the
Line not commence by May 31, 2012, as shown on attached Exhibit "D" (the
"Pipeline /Streetscape Schedule ").
3. The License, License Tract or Line is not assignable by Southlake without the
prior written consent of Westlake.
4. Westlake reserves and retains the paramount right to use the License Tract and
grant other rights and Licenses across, over or under the License Tract to such other persons as
Westlake deems proper, provided such other grants do not interfere with the use of the License
by Southlake for the purpose set forth herein. Westlake may grant such other Licenses, rights, or
uses within the License Tract in its sole discretion.
5. The rights granted to Southlake are subject and subordinate to the prior and
continuing right and obligation of Westlake to use the License Tract and surrounding property
without liability to Southlake or to any other party for compensation or damages.
6. Southlake's rights are also subject to all outstanding superior rights (including
those in favor of licensees, lessees of said right -of -way, and others) and the right of Westlake to
renew and extend the same, and are granted without covenant of title or quiet enjoyment.
7. Westlake, at its expense, shall have the right to relocate the Line or any facilities
installed pursuant to this Agreement provided that (a) the level of service provided by the Line at
the new location will not be impaired or disrupted in any respect (as reasonably determined by
Southlake) either in the process of such relocation or after the completion thereof and (b)
Southlake will not be obligated to incur any expense for offsite work directly caused by such
proposed relocation for which Westlake is not willing to reimburse Southlake. Any relocation of
the Line and the License Tract described in the previous sentence shall be coordinated by, and
the work shall be performed by, Southlake or third party contractors experienced in installing
and relocating the type of improvements installed by Southlake in the License Tract. Both
Westlake and Southlake shall use all commercially reasonable efforts to work together to
effectuate any such requested relocation. All costs of such relocation shall be paid by Westlake.
8. Southlake shall repair any damage to improvements such as landscaping, paving,
curbs, retaining walls and signage on the License Tract or surrounding property and restore the
surface of the License Tract and surrounding property from damage resulting from Southlake's
use of the License Tract.
9. Southlake shall not use the License Tract, operate the Line, or permit use of the
License Tract or Line by any other person, in a manner that violates applicable laws or
regulations or constitutes a hazard to the health, safety and /or welfare of the public. Except for
the normal use of fuels, lubricants, chemicals required to install the Line and their normal
byproducts of use, Southlake shall not, and shall not permit any of its employees, agents,
contractors, subcontractors, suppliers or invitees to generate, manufacture or dispose of on or
about the License Tract or surrounding property any hazardous substance. If Westlake in good
faith believes that a hazardous substance may have been generated, manufactured or disposed of
on or about the License Tract by Southlake or any of its employees, agents, contractors,
subcontractors, suppliers or invitees, Westlake may have environmental studies of the License
Tract or surrounding property conducted as it deems appropriate.
10. Except with regard to those arising from the gross negligence or willful act or
omission of Westlake, Westlake shall not be responsible for any claims, suits, losses, liability,
costs and expenses from any User's use of the License Tract. A "User" is defined to include any
person, including Southlake, providing materials or service in connection with the design and
construction of the facilities.
11. All notices required or permitted hereby shall be in writing and become effective
after being deposited in the U.S. mail, certified or registered with appropriate postage prepaid or,
if delivered by some other manner, when actually received. Notices to the parties shall be
addressed as follows:
To Southlake: /' /CC it 1, ho -/ ' ..6` c 'IC 0
5o cig if/C `7;6 7(.3G'4 2
/
Attention: , /i ), , JA-4-1,:44z..
And a copy to: , , b „c ' r s ,'
,� . fi
L t c ,- -SD , -ih L e., s
/ <-/0 J -i s,d s k. ,-' cj rZt
2
To Westlake: The Town of Westlake
3 Village Circle, Suite 202
Westlake, TX 76262
Attention: Town Manager
With a copy to: Boyle & Lowry, L.L.P.
(which shall not constitute notice) 4201 Wingren Drive, Suite 108
Irving, TX 75062
Attention: L. Stanton Lowry
From time to time a party may designate a new address for the purpose of receiving
notices hereunder by giving notice of its new address to the other party in the manner provided
above.
12. This grant of the License shall terminate and revert to Westlake or its successors
in interest upon the termination of the ILA, or upon abandonment by Southlake or when the
License Tract or the Line ceases to be used exclusively for the purposes permitted herein for a
continuous period of more than one (1) year, it being agreed that the construction and installation
of improvements shall constitute "use "; however, prior to the effectiveness of any such
reversion, Westlake shall provide written notice to Southlake of such impending reversion
( "Westlake's Notice "). Provided that the ILA has not been terminated, the reversion clause in
this Section shall not be effective if Southlake (a) notifies Westlake in writing within thirty (30)
days following Westlake's Notice that Southlake has not abandoned the License Tract and that
the License Tract has not ceased to be used exclusively for the purposes permitted herein for a
continuous period of more than one (1) year, (b) in each case provides to Westlake reasonable
documentation thereof, and (c) if Southlake has temporarily ceased its use of the License,
recommences the uninterrupted use thereof within 120 days following Westlake's Notice. For
the purposes hereof, "abandonment" shall not include any temporary periods when service is
discontinued for regular maintenance purposes or during any relocation construction work
permitted under this License.
EXECUTED to be effective as of the date first written above.
TOWN OF WESTLAKE, TEXAS
By: // (111(4/ j/ d r
Name: Thomas E. B r e ►
Title: Town Manager
3
THE STATE OF TEXAS §
§
COUNTY OF TARRANT §
This instrument was acknowledged before me on \�- yt.sA.1-L\ `2. , 2012, by
THOMAS E. BRYMER, Town Manager of the Town of Westlake, on be7ialf of the Town of
Westlake, Texas.
KELLY EDWARDS
MY COMMISSION EXPIRES 4_,I t '
„4 MMI ery 3, 2014
otary Public, St e of Texas
ACCEPTED ON THE TERMS AND
CONDITIONS CONTAINED HEREIN:
THE CITY OF SOUTHLAKE
.Git anager ,
THE STATE OF TEXAS §
§
COUNTY OF TARRANT §
This instrument was acknowledged before me on F v't-1 1, 2012, by 3' Lh
1 11 of the City of Southlake, Texas, a municipal corporation, on
behalf of the City of Southlake, Texas. ♦ ♦♦ ♦D�TH j111/ ° l qk t,,
zki L4.41. 1&. hl -e-- -? i i �
Notary Public, State of Texas :: r
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PACE 4 OF 8
EXHIBIT A
LEGAL DESCRIPTION
LICENSE TRACT
BEING a 6.78 acre tract of land situated in the W. Pea Survey, Abstract No. 2025, W.
Medlin Survey, Abstract No. 1958, L. Boggess Survey, Abstract No. 196, C.M. Throop
Survey, Abstract No. 1510, M. Hunt Survey, Abstract No. 756, J. Walker Survey,
Abstract No. 1604, W. Martin Survey, Abstract No. 1068 and the J. Childress Survey,
Abstract No. 253, Tarrant County, Texas, and being a portion of the same tracts of land
conveyed to the Town of Westlake in the following documents, Instrument No.
D208427746, Instrument No. D209281692, Instrument No. D207233416 and Volume
17035, Page 159, Deed Records, Tarrant County, Texas. Said 6.78 acre tract of land
being more particularly described by metes and bounds as follows:
COMMENCING at a found TXDOT brass cap for the intersection of the south right -of-
way line of West State Highway 114 (a variable width R.O.W.) and the east right -of -way
line of F.M. 1938 (a variable width R.O.W.);
THENCE South 59 °33'33" West, along said south right-of-way line of West State
Highway 114, for a distance of 44.59 feet to a point for corner, being the POINT OF
BEGINNING and being in the east line of said Town of Westlake tract recorded in said
Instrument No. D208427746;
THENCE along said east line of Town of Westlake tract as follows:
THENCE South 16 °30'03" West, for a distance of 322.64 feet to a point for comer;
THENCE South 18 °23'55" West, for a distance of 185.45 feet to a point for corner, being
the beginning of a tangent curve to the right having a radius of 1432.50 feet, a central
angle of 16 °09'57" and a long chord which bears South 26 °28'54" West, 402.84 feet;
THENCE southwesterly, along said curve to the right, an arc distance of 404.18 feet to a
point for comer;
THENCE South 31 °56'54" West, for a distance of 195.56 feet to a point for comer;
THENCE South 35 °31'32" West, for a distance of 329.50 feet to a point for corner, being
the beginning of a tangent curve to the right having a radius of 255.50 feet, a central
angle of 6 °53'00" and a long chord which bears South 38 °58'02" West, 30.68 feet;
THENCE southwesterly, along said curve to the right, an arc distance of 30.70 feet to a
point for corner;
THENCE South 42 °24'32" West, for a distance of 59.53 feet to a point for comer, being
the beginning of a tangent curve to the left having a radius of 419.50 feet, a central angle
of 6 °53'00" and a long chord which bears South 38 °58'02" West, 50.37 feet;
PAGE 5 OF 8
THENCE southwesterly, along said curve to the left, an arc distance of 50.40 feet to a
point for corner;
THENCE South 35 °31'32" West, for a distance of 138.73 feet to a point for comer, being
the beginning of a tangent curve to the left having a radius of 1267.50 feet, a central
angle of 35°56'31" and a long chord which bears South 17 °33'16" West, 782.14 feet;
THENCE southwesterly, along said curve to the left, an arc distance of 795.11 feet to a
point for comer;
THENCE South 00 °24'59" East, for a distance of 1301.49 feet to a point for corner, being
the beginning of a tangent curve to the right having a radius of 1782.50 feet, a central
angle of 8 °26'23" and a long chord which bears South 03 °48'12" West, 262.33 feet;
THENCE southwesterly, along said curve to the right, an arc distance of 262.56 feet to a
point for corner;
THENCE South 10 °09'05" West, for a distance of 30.28 feet to a point for corner;
THENCE South 10 °55'30" West, for a distance of 76.03 feet to a point for comer;
THENCE South 05 °01'29" West, for a distance of 15.54 feet to a point for comer, being
the beginning of a non - tangent curve to the right having a radius of 1782.50 feet, a central
angle of 0 °27'26" and a long chord which bears South 12 °10'03" West, 14.23 feet;
THENCE southwesterly, along said non - tangent curve to the right, an arc distance of
14.23 feet to a point for comer;
THENCE South 12 °23'46" West, for a distance of 298.98 feet to a point for corner;
THENCE South 12 °22'54" West, for a distance of 192.99 feet to a point for comer, being
the beginning of a non - tangent curve to the left having a radius of 4905.00 feet, a central
angle of 20 °56'56" and a long chord which bears South 01 °55'55" West, 1783.42 feet;
THENCE southwesterly, along said non - tangent curve to the left, an arc distance of
1793.39 feet to a point for comer;
THENCE South 08 °3826" East, for a distance of 478.26 feet to a point for corner, being
the beginning of a tangent curve to the right having a radius of 3894.98 feet, a central
angle of 4 °38'48" and a long chord which bears South 06 °19'02" East, 315.80 feet;
THENCE southeasterly, along said curve to the right, an arc distance of 315.88 feet to a
point for corner;
THENCE South 00 °24'16" East, for a distance of 492.13 feet to a point for comer;
PAGE 6 OF 8
THENCE South 00 °20'52" East, for a distance of 499.40 feet to a point for corner;
THENCE South 00 °04'16" East, for a distance of 152.29 feet to a point for corner;
THENCE South 89 °53'27" East, for a distance of 0.29 feet to a point for corner;
THENCE South 00 °23'43" East, for a distance of 993.74 feet to a point for corner;
THENCE South 00 °26'54" East, for a distance of 429.21 feet to a point for corner;
THENCE South 00 °30'16" East, for a distance of 51.85 feet to a point for corner;
THENCE South 00 °16'52" East, for a distance of 206.16 feet to a point for corner;
THENCE South 00 °25'53" East, for a distance of 439.84 feet to a point for corner;
THENCE North 88 °20'42" East, for a distance of 1.44 feet to a point for corner;
THENCE South 00 °32'30" East, for a distance of 32.40 feet to a point for corner, being
the beginning of a non - tangent curve to the left having a radius of 139.60 feet, a central
angle of 31 °29'11" and a long chord which bears South 18 °32'18" West, 75.75 feet;
THENCE southwesterly, along said non - tangent curve to the left, an arc distance of 76.72
feet to a point for corner;
THENCE South 89 °43'39" West, for a distance of 0.87 feet to a point for corner, being in
the west line of said Town of Westlake tract and the east line of TxDot right -of -way;
THENCE along said west line of Town of Westlake and said east line of TxDot right -of-
way, being a common line, as follows:
THENCE North 00 °32'30" West, for a distance of 193.80 feet to a point for corner, being
the beginning of a non - tangent curve to the right having a radius of 6427.95 feet, a central
angle of 1 °03'18" and a long chord which bears North 00 °16'03" East, 118.37 feet;
THENCE northeasterly, along said non - tangent curve to the right, an arc distance of
118.37 feet to a point for corner, being the beginning of a reverse curve to the left having
a radius of 6430.95 feet, a central angle of 1°20'13" and a long chord which bears North
00 °07'36" East, 150.05 feet;
THENCE northeasterly, along said reverse curve to the left, an arc distance of 150.05 feet
to a point for comer;
THENCE North 00°3T30" West, for a distance of 1768.36 feet to a point for corner,
being the beginning of a tangent curve to the left having a radius of 22971.82 feet, a
central angle of 0 °17'20" and a long chord which bears North 00 °41'10" West, 115.87
PAGE 7 OF 8
feet;
THENCE northwesterly, along said curve to the left, an arc distance of 115.87 feet to a
point for corner;
THENCE North 00 °49'50" West, for a distance of 200.00 feet to a point for corner, being
the beginning of a tangent curve to the right having a radius of 22864.82 feet, a central
angle of 0 °27'00" and a long chord which bears North 00 °36'17" West, 179.63 feet;
THENCE northwesterly, along said curve to the right, an arc distance of 179.63 feet to a
point for corner;
THENCE North 00 °22'51" West, for a distance of 579.12 feet to a point for corner, being
the beginning of a tangent curve to the left having a radius of 2053.50 feet, a central
angle of 8 °10'12 ", and a long chord which bears North 04 °27'56" West, 292.57 feet;
THENCE northwesterly, along said curve to the left, an arc distance of 292.82 feet to a
point for comer;
THENCE North 08 °33'02" West, for a distance of 560.67 feet to a point for corner, being
the beginning of a tangent curve to the right having a radius of 4934.00 feet, a central
angle of 20 °56'48" and a long chord which bears North 01 °55'22" East, 1793.79 feet;
THENCE northeasterly, along said curve to the right, an arc distance of 1803.82 feet to a
point for corner;
THENCE North 12 °23'46" East, for a distance of 492.11 feet to a point for corner;
THENCE North 10°14'18" East, for a distance of 132.06 feet to a point for corner, being
the beginning of a non - tangent curve to the left having a radius of 1753.50 feet, a central
angle of 8 °29'48" and a long chord which bears North 03 °49'55" East, 259.79 feet;
THENCE northeasterly, along said non - tangent curve to the left, an are distance of
260.03 feet to a point for comer;
THENCE North 00 °24'59" West, for a distance of 1301.49 feet to a point for comer, for
the beginning of a tangent curve to the right having a radius of 1296.50 feet, a central
angle of 35°56'31", and a long chord which bears North 17 °33'16" East, 800.03 feet;
THENCE northeasterly, along said curve to the right, an arc distance of 813.30 feet to a
point for comer;
THENCE North 35 °31'32" East, for a distance of 138.73 feet to a point for corner, being
the beginning of a tangent curve to the right having a radius of 448.50 feet, a central
angle of 6 °53'00" and a long chord which bears North 38 °58'02" East, 53.85 feet;
PAGE 8 OF 8
THENCE northeasterly, along said curve to the right, an arc distance of 53.88 feet to a
point for corner;
THENCE North 42 °24'32" East, for a distance of 59.53 feet to a point for corner, being
the beginning of a tangent curve to the left having a radius of 226.50 feet, a central angle
of 6 °53'00" and a long chord which bears North 38 °58'02" East, 27.19 feet;
THENCE northeasterly, along said curve to the left, an arc distance of 27.21 feet to a
point for comer;
THENCE North 35 °31'32" East, for a distance of 295.00 feet to a point for corner;
THENCE North 32 °31'39" East, for a distance of 235.31 feet to a point for corner , being
the beginning of a non - tangent curve to the left having a radius of 1403.50 feet, a central
angle of 15 °55'45" and a long chord which bears North 26 °21'48" East, 388.94 feet;
THENCE northeasterly, along said non - tangent curve to the left, an arc distance of
390.20 feet to a point for comer;
THENCE North 18 °23'55" East, for a distance of 184.97 feet to a point for corner;
THENCE North 16 °30'03" East, for a distance of 279.67 feet to a point for corner;
THENCE South 71°3624" East, for a distance of 15.84 feet to a point for corner;
THENCE North 18 °23'35" East, for a distance of 30.00 feet to a point for corner;
THENCE North 59 °33'33" East, for a distance of 17.83 feet to the POINT OF
BEGINNING and CONTAINING 295,227 square feet or 6.78 acres of land, more or less.
Id.L PETERSON
:A 5999.4
PAGE 1 OF 6
N59'33'33'E r , w W.
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1 / ' N1003'E ' _________
FMR TEXAS LIMITED N %;/� \ --516'30• 03'6
PARTNERSHIP 1/ 322.64
VOL. 13457. P3. 409 /.,/
D.R.T.C. T. /
418'23'55'E 7 THE TOWN OF WESTLACE
INST. N0. 020842'746
C 394 4 .07' . / / D. R.T.C. T
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/ D.R. T. D. T.
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THE 1065 OF WESTLAKE \
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MATCH LIN$ STA. 180 +00 C`.,4 5999 1.. ..,/
9 O,- 1 gyp ` Q 54515 ( S RIN 0 I33 509733 AMERIC4N O*TUM
EXHIBIT A •S __ SY51 OF T c % NORT CENTRA c000nINsT6
BEING A .' ,. `(
LICENSE TRACT
CONTAINING 295,227 SQ.FT. /6.78 ACRES
SITUATED IN THE W. PEA SURVEY, ABSTRACT
NO. 2025, W. MEDLIN SURVEY, ABSTRACT NO. 1958, r
L. BOGGESS SURVEY, ABSTRACT NO. 196, C.M. THROOP SURVEY,
ABSTRACT NO. 1510, M. HUNT SURVEY, ABSTRACT NO. 756,
J. WALKER SURVEY, ABSTRACT NO. 1604, W. MARTIN SURVEY, Ini
ABSTRACT NO. 1068 AND THE J. CHILDRESS SURVEY,
ABSTRACT NO. 253, GR.PHIC WALE •200'
Graham Associates.,Inc. THE TOWN OF WESTLAKE,
CONSULTING ENGINEERS & P LANNERS TARRANT COUNTY TEXAS
600 SIX FLAGS DRIVE. SUITE 500 0 100 20C 300
ARLNGTON. TEXAS 78011 (617) 840 -8535
'RAPE FIRM: F- 1191/IBPLS FIRM: 101538 -00 DATE: JANUARY 24, 2012
PAGE 2 OF B
MATCH LINE STA. 180 +00 MATCH LINE STA. 152+00 '
li p iiI A= 35'56 31' I Lisl 1
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Lc- 800.03' CV:i 1 -1 L= 1793839'
r 1 - THE TOWN OF WESTLAKE :Oa 501'55'59 W
INST. N0. 0208427746 .TT _ Lc- 1783.42'
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THE TOWN OF ' 09281692 ��' L- 313
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MATCH LINE STA. 152 +00
MATCH LINE STA. 124+00
BASI5 OF BEARING IS WORTH AMERICAN DATUM
OF 1983 INAD -831 STATE PLANE COORDINATE
SYSTEM TEXAS NORTH CENTRAL
C GRAPHlL STALE 1'•200'
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C CONSULTING ENGINEERS & PLANNERS 0 100 200 300
800 SIX FLAGS DRIVE, SUITE 500
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TBPE FIRM: F- 1181/TSPLS F111Mi 101538 -00 DATE: JANUARY 24. 2012
PAGE 3 OF 8
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