Loading...
Item 4CCITY OF SOUTHLAKE MEMORANDUM (February 7, 2012) To: Shana Yelverton, City Manager From: Robert H. Price, P.E., Director of Public Works Subject: Resolution No. 12 -012, Approve an Inter local agreement and License agreement with the Town of Westlake for the installation and operation of the TW King 30 -inch water line adjacent to FM 1938 Action Requested: Resolution No. 12 -012, Approve an Inter local agreement and License Agreement with the Town of Westlake for the installation and operation of the TW King 30 -inch water line adjacent to FM 1938 Background Information: The purpose of this item is to present for Council's consideration an Inter local Agreement with the Town of Westlake for the maintenance and operation of the proposed TW King 30 -inch water supply line and a License Agreement which affords the City of Southlake to right to construct the proposed water line in Westlake Town right of way. Southlake staff has been negotiating with Westlake officials for several years in order to secure the property right to construct the proposed supply line along the east side of the FM 1938 roadway project that is currently being constructed by TxDOT. Prior to executing this Inter local agreement with Westlake, it was necessary for Southlake, Westlake, Keller and Fort Worth to enter into an amendment to the Wholesale Water Purchase Contract. This was completed in January of 2011 and was a major hurdle to getting Westlake comfortable with executing this Inter local agreement. The agreement outlines the terms of the items necessary for completion of the new water supply line from Fort Worth. The agreement calls for Southlake to receive authorization from Westlake to construct, operate and maintain this integral part of our water system at no cost. In turn, Westlake has the opportunity to capture and distribute up to 2 MGD of water from this supply line at a date that they feel appropriate. Westlake will have to construct a future metering station at their cost in order to purchase water directly from the City of Fort Worth via this pipeline. The timing of the approval of this item is of essence in that bids for the project were advertised on December 21, 2011 and bids were received on January 17, 2012. Item 4B on tonight's agenda recommends an award of the construction contract to Circle C Construction. Construction of the pipeline is expected to begin within the next several months (pipe fabrication time accounts for 4 months) and take approximately 12 -15 months to complete. An early completion bonus was included in the bid proposal to incentivize an early completion of the project, as early as February of 2013. Due to the importance of having the TW King transmission supply line operational for the Summer of 2013, staff felt that it was necessary to improve the chances of completion well in advance of the peak demand period beginning in May. The bid amount includes the greatest possible early completion bonus. Milestones including the substantial completion of the full pipeline were established in the contract documents and must be achieved in order to receive the maximum early completion bonus. Substantial completion is defined in the contract documents as when the improvements are in operation. The contract documents identified the latest possible date for substantial completion as April 15, 2013 with final completion as May 15, 2013. The early completion bonus provides the opportunity for the project to be completed as early as February, 2013. Financial Considerations: The proposed Inter local Agreement nor the License Agreement calls for any significant consideration to be exchanged between the two parties to the contract other than what is required to meet the financial requirements of a contract. The consideration proposed is Ten dollars ($10.00). As part of a previously adopted wholesale water purchase amendment, Westlake has the option to purchase up to 2 MGD of water directly from the City of Fort Worth through the Caylor and TW King supply lines. Strategic Link: The Interlocal Agreement and the License Agreement for the funding, construction and maintenance of the T.W. King water supply line links to the City's strategy map relative to the focus areas of Infrastructure and Performance Management and Service Delivery. The specific corporate objectives that are met by this agreement and construction project include: Collaborating with select partners to implement service solutions, and improving performance of delivery and operational processes. Citizen Input/ Board Review: N/A Legal Review: This agreement has been negotiated between the staffs of both the City of Southlake and the Town of Westlake including the City Attorney offices of both municipalities. Alternatives: The City Council may approve or deny the agreement. Supporting Documents: Resolution 12 -012 Inter local Agreement License Agreement Concurrent Project Schedules Location Map Staff Recommendation: Resolution No. 12 -012, Approve an Inter local agreement and License agreement with the Town of Westlake for the installation and operation of the TW King 30 -inch water line adjacent to FM 1938. Staff Contact: Robert H. Price, P.E., Public Works Director Gordon J. Mayer, Jr., P.E., City Engineer Cheryl Taylor, P.E., Civil Engineer 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 7th DAY OF FEBRUARY 2012. ATTEST: John Terrell, Mayor Alicia Richardson, City Secretary 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 m - 1 THE TOWN OF WESTLAKE, TEXAS DATED AS OF , 2012 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 of , 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 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: Town of Westlake 3 Village Circle, Ste 202 Westlake, Texas 76262 Attn: Town Manager To Southlake: City of Southlake 1400 Main Street, Ste 320 Southlake, Texas 76092 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 governmental 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 Government 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 Shana Yelverton, City Manager ATTEST: Alicia Richardson, City Secretary Approved as to Form Southlake City Attorney Tom Brymer, Town Manager ATTEST: Kelly Edwards, Town Secretary Approved as to Form Town of Westlake Attorney Page 10 UNDERGROUND WATER LINE LICENSE AGREEMENT This Underground Water Line License Agreement (this " Agreement ") is entered into as of , 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 , 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 /Streets cape 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 parry 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: Attention: And a copy to: 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: Name Title: Thomas E. Brymer Town Manager 3 THE STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on , 2010, by THOMAS E. BRYMER, Town Manager of the Town of Westlake, on behalf of the Town of Westlake, Texas. Notary Public, State of Texas ACCEPTED ON THE TERMS AND CONDITIONS CONTAINED HEREIN: THE CITY OF SOUTHLAKE IM City Manager THE STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on 2012, by , City Manager of the City of Southlake, Texas, a municipal corporation, on behalf of the City of Southlake, Texas. Notary Public, State of Texas rd §2 §g &\ ) � \» u - §\ ! : G « Url - §) &# E k �3 cu / \ \ § \ (, _ ƒ 2 @ `/ ` - -- k� - � . u :§ } \\ - &# � ( j) } &3 # i- o - 2 = cu w \ / \ _ - A " _ ) / 7 \ \ \ 2 Q - / )� E0 k }f} \ _ § ®® _! : z {,\ - - - - cu < 0 4 j 4 d > ` (D - - U ! ] _ _ _ _ - - - - - )$$ /u u } /j) { /j / / /j /} \ 2 u u,= F- UF— w . . ... . . . j} © \\ d m w 6 13 0 LM 0) lemm LL mr F: 0 4-0 ii 4-0 N o E E ch r Z Sr— < 5 T. 2 w u LU 2E PDO LU Lu fz LL LU -13 W 4-1 0 4-0 ii 4-0 N o E E ch 0 Z Sr— < LU -13 W Epp, 4-1 u LU LU Lu LL 2 Lu C A 'iL .0 u ;, Epp,