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HomeMy WebLinkAboutOrd 381-1 Amending an Interlocal Agreement with the City of Keller regarding the Elevated Water storage facilityTOWN OF WESTLAKE ORDINANCE NO. 381-1 AN ORDINANCE OF THE TOWN OF WESTLAKE, TEXAS, APPROVING AN AMENDED INTERLOCAL AGREEMENT BETWEEN THE TOWN OF WESTLAKE, TEXAS, AND THE CITY OF KELLER, TEXAS, PROVIDING FOR THE JOINT CONSTRUCTION, OPERATION, MAINTENANCE AND THE USE OF AN ELEVATED WATER STORAGE FACILITY AND APPURTENANCES THERETO; APPROVING A FACILITIES OPERATING AGREEMENT BETWEEN THE TOWN OF WESTLAKE, TEXAS, AND THE CITY OF KELLER, TEXAS; AND APPROVING A SETTLEMENT AND PURCHASE AGREEMENT BETWEEN THE TOWN OF WESTLAKE, TEXAS, AND THE CITY OF KELLER, TEXAS; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the Town of Westlake, Texas, and the City of Keller, Texas, desire to enter into an Interlocal Agreement for the joint construction, operation, maintenance and use of an elevated water storage facility, a Settlement and Purchase Agreement, and a Facilities Operating Agreement, which will allow for the Town of Westlake to provide water service to all of its citizens. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: Section 1: That the recitals set forth above in the Interlocal Agreement, the Facilities Operating Agreement, and the Settlement Agreement, attached hereto as Exhibit "A", `B" and "C", respectively, are hereby incorporated herein, are adopted by the Town and declared to be true and correct. Section 2: That the Board of Aldermen of the Town of Westlake, Texas, does hereby approve the amended Agreements attached hereto as Exhibits "A", `B" and "C", and further authorize the Town Manager to execute any and all documents to effectuate the final execution of all agreements contained within Exhibits "A", `B" and "C". Section 3: That this Ordinance shall be cumulative of all Ordinances of the Town of Westlake, Texas, and yet should any other Ordinances contained inconsistent language with this Ordinance, that the provisions of this Ordinance shall prevail. Section 4: It is hereby declared to be the intention of the Board of Aldermen of the Town of Westlake, Texas, that sections, paragraphs, clauses and phrases of this Ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Ordinance since the same would have been enacted by the Board of Aldermen of the Town of Westlake, Texas, without the incorporation in this Ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 5: This Ordinance shall become effective upon its passage. APPROVED AND EFFECTIVE THIS 22°" DAY OF JANUARY, 2001. Scott Bradley, Mayor j+ ATTEST: Cing4 Crosswy, Town Qcretary Trent O. Petty, Town Manager SETTLEMENT AND PURCHASE AGREEMENT BETWEEN THE TOWN OF WESTLAKE, TEXAS AND THE CITY OF KELLER. TEXAS For the purpose of resolving disputed claims and pursuant to the authority of the Interlocal Cooperation Act, this Settlement and Purchase Agreement (the "Agreement") is made and entered into by and between the Town of Westlake, Texas ("Westlake") and the City of Keller, Texas ("Keller"), both being municipal corporations of the State of Texas. WHEREAS, the Keller Rural Water Supply Corporation generally provided water utility services to areas in and around Keller and Westlake, and specifically within areas of Westlake's town limits as described and identified herein in Exhibit A and referred to herein as the "Service Area'; and WHEREAS, Keller subsequently acquired the interests of Keller Rural Water Supply Corporation and continued water utility services to the Service Area; and WHEREAS, in order to provide water utility services to the Service Area, Keller and/or its predecessor, Keller Rural Water Supply Corporation, constructed water system infrastructure necessary to serve said area; and WHEREAS, Keller maintains a Water Certificate of Convenience and Necessity ("CCN") No. 10975 in connection with its retail water service to areas within and around Keller's city limits, including the Service Area; and 1403\00\agt001127mcr20 1 WHEREAS, Keller's facilities are presently being used to provide water utility services to citizens of Westlake who reside in the Service Area; and WHEREAS, Westlake made application to the Texas Natural Resource Conservation Commission to secure a Water CCN for all of the territory within its corporate boundaries, including the Service Area; and WHEREAS, Keller protested such application in order to protect its investment in water system infrastructure associated with its water utility services to customers within the Service Area; and WHEREAS, based in part on Keller's protest to Westlake's Water CCN application, TNRCC referred Westlake's application to the State Office of Administrative Hearings ("SOAH") for a contested case hearing; and WHEREAS, such contested case hearing process has been initiated and the parties are proposing to engage in discovery prior to proceeding to hearing on Westlake's application; and WHEREAS, Westlake and Keller have jointly engaged the services of a consultant to evaluate the components of and the value of the infrastructure owned by Keller and used to provide water utility services to customers within the Service Area; and WHEREAS, said consultant has generated a report to Keller and Westlake apprising the parties of the nature of such infrastructure and of the consultant's evaluation of the components of and the value of such infrastructure; and WHEREAS, Westlake and Keller desire to avoid the uncertainty and expense associated with protracted administrative litigation and desire to amicably compromise, 1403\00\agt001127 mcr20 2 settle, and dispose of the disputes between them concerning Westlake's proposed retail water service to property within its corporate boundaries and Keller's existing water facilities serving the Service Area; and WHEREAS, in light of Westlake's desire to assume service and operation responsibilities within its town limits, the water system infrastructure serving such portion of the Service Area will represent excess property no longer needed by Keller after such assumption by Westlake; and WHEREAS, Keller desires to relinquish control and operation of the water system infrastructure serving the Service Area within Westlake's town limits by selling such facilities as excess property to Westlake and by withdrawing its protest to Westlake's application for Water CCN; and WHEREAS, Westlake and Keller desire to provide for an orderly transfer of the operation of the water facilities serving the Service Area within Westlake's town limits by providing for Keller's operation and maintenance of the facilities for Westlake for a period of time after the facilities are purchased by and transferred to Westlake. NOW, THEREFORE, in consideration of the mutual promises and releases set forth herein, the performance of each, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Westlake and Keller contract and agree as follows: 1403\00\agt001127mcr20 3 SECTION 1: DEFINITIONS For the purposes of this Agreement, the following words, terms, phrases, and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall' is always mandatory and not merely directory. 1.1 "Commission" means the Texas Natural Resource Conservation MOT, MY .. 1.2 "Date of Transfer" means the effective date of the sale and conveyance of facilities pursuant to Section 10.1 of this Agreement. 1.3 "Facilities Operating Agreement' means the document entitled "Facilities Operating Agreement Between the Town of Westlake, Texas and the City of Keller, Texas", executed by Westlake and Keller simultaneously with the execution of this Agreement. The Facilities Operating Agreement is the instrument by which Keller will provide operation, maintenance, billing, and collection services to the Service Area during the Transition Period. 1.4 "Service Area" means the area of land served by Keller under CCN No. 10975 and contained within the town limits of Westlake, as depicted in Exhibit A attached hereto and made a part of this Agreement. 1.5 "Service Area System" means the water facilities transferred from Keller to Westlake by this Agreement and include, but are not limited to, all water transmission mains, distribution lines, facilities, appurtenances, easements, special purpose rights of 1403\00\agt001127m cr20 4 way, improvements, fixtures and attached personal property (such as wells, pumps, pipes, valves, electrical connections, storage tanks, customer water meters, meter vaults and fire hydrants and any and all appurtenances thereto) located within the town limits of Westlake, used to provide water service within the Service Area, together with the Dove Road well site, all as more specifically addressed in Sections 4.1 and 4.3 of this Agreement. 1.6 "Transition Period" means the three-year period from the Date of Transfer during which Keller and Westlake intend to implement an orderly transition of the operations of the water supply facilities purchased by Westlake from Keller. SECTION 2: DISMISSAL OF PROCEEDINGS 2.1 In consideration of the premises and covenants stated herein, Keller agrees to dismiss, within ten (10) days of the execution of this Agreement, its protest to Westlake's application for Water CCN pending before SOAH, with prejudice to the refiling of same in any form, provided that Westlake is not in default hereon. 2.2 In consideration of the premises and covenants stated herein, Keller also agrees to the decertification of any and all of its certificated service area under Water CCN No. 10975 that is within Westlake's existing town limits boundary. To that end, Westlake agrees to file, with notice to Keller, an application with the Commission for decertification of the Service Area from Water CCN No. 10975 within sixty (60) days following Westlake's assumption of all service and operational responsibilities therein, and to thereafter pursue such decertification as expeditiously as possible. Westlake may use a copy of this Agreement in its application to the Commission. 1403\00\agt001127m cr20 6i SECTION 3: PURCHASE OF WATER FACILITIES 3.1 Upon Westlake's assumption of service obligations for water service in the Service Area, Keller's water facilities used to provide service within such area will be excess property no longer needed by Keller; therefore, Keller enters into this Agreement for the purpose of selling this surplus property. 3.2 Westlake agrees to pay Keller the sum of $121,016.00 ("Purchase Price") for the Service Area System owned or operated by Keller and used to provide water service within the Service Area, as more specifically defined in Section 1.5 and described in Section 4.1 of this Agreement, and Keller agrees to transfer to Westlake all of its rights, title, and interest to such property, both real and personal, as more specifically described in Section 4.1 and Section 4.3 upon the payment by Westlake of such sum, as follows: $40,400.00 ("Initial Payment") payable upon the delivery by Keller to Westlake of documents reflecting a transfer of ownership to Westlake of the Service Area System facilities and real property interests identified in Section 4 of this Agreement (i.e., the Date of Transfer); $40,308.00 payable twelve (12) months thereafter, together with simple interest at the rate of 5.5 percent (%) per annum from the Date of Transfer; and, $40,308.00 payable twenty-four (24) months after Westlake's initial payment, together with simple interest at the rate of 5.5% per annum from the Date of Transfer. Should Westlake choose to pay any remaining balance earlier than the dates provided for herein, Westlake's obligation to pay interest shall terminate with regard to such early payment amount as of such early payment. In such event, Westlake shall not be subject to any prepayment penalties. 1403\00\a g t001127 m cr20 6 3.3 Upon dissolution of the Circle T MUD Nos. 2 and 3 (formerly known as Lake Turner MUD Nos. 2 and 3 and referred to herein as "MUDs") within Westlake's municipal limits, Westlake agrees to assume, honor, and guarantee any then -outstanding obligations of N. B. Hunt and the Lake Turner Water Supply Corporation to Keller under contracts dated June 5, 1984 and September 6, 1988, which obligations were subsequently assigned to the MUDs, respecting the funding of certain Pearson Lane water line facilities and other facilities as described in said Agreements. SECTION 4: PROPERTY AND FACILITIES TO BE TRANSFERRED 4.1 In consideration of the Purchase Price, Keller agrees to sell, and Westlake agrees to purchase, the Service Area System comprising a part of Keller's water system, which is used to provide water service to customers in the Service Area, and certain of Keller's water mains and related appurtenances connected to its water system (the description of such facilities and appurtenances being contained in Exhibit B, attached hereto and made a part of this Agreement), together with all and singular the rights and appurtenances pertaining thereto, including such right, title and interest Keller has in and to any special purpose rights-of-way or easements across private or public property that contain any of the said mains or appurtenances, and together with any improvements, fixtures, and personal property situated thereon or attached to the water system, including but not limited to any and all wells, pumps, pipes, valves, electrical connections, storage 1403\00\agt001127mcr20 7 tanks, customer water meters, meter vaults, fire hydrants, and any and all other appurtenances thereto, and the Dove Road well site owned or held by Keller. 4.2 On or before the Date of Transfer, Keller agrees to provide Westlake with a set of up-to-date as -built plans and GIS Data for the Service Area System in hard copy and on computer media in a format that can be readily used by Westlake, to the extent that same exist and are available. If Westlake, after exercising due diligence, is unable to locate any of the facilities comprising the Service Area System, Keller shall, at Westlake's request, provide assistance to Westlake in locating them. Keller's obligation to provide such assistance to Westlake shall survive the Date of Transfer. Keller agrees to provide Westlake with all available maintenance records for the past ten-year period for all Service Area System facilities. These records shall include, but not be limited to, water main leak repairs, replacement, and rehabilitation records. 4.3 Within ninety (90) days of Westlake's written request, Keller agrees to complete the clearing, grading and seeding of its well site on Dove Road, and to transfer ownership of such property, together with any easements or rights-of-way associated with such property, to Westlake. Such transfer of ownership shall be effected by an instrument of conveyance from Keller in which Keller will quitclaim all of the right, title and interest in the real property of the Dove Road well site to Keller. Keller shall deliver the fully executed instrument of conveyance to Westlake within the timeframe specified herein. 1403\00\ag t001127m cr20 8 SECTION 5: TRANSITION PERIOD OPERATION 5.1 During the Transition Period, Keller agrees to operate and maintain the Service Area System according to the terms and conditions in the Facilities Operating Agreement and to provide continuous and adequate service to the Service Area in accordance with CCN No. 10975. 5.2 During the Transition Period, this Agreement shall constitute additional authorization for Keller to continue water service to the Service Area pursuant to the authority of Water Code § 13.248, which allows retail public utilities to contract with each other for the provision of utility services. SECTION 6: PAYMENTS AND COSTS 6.1 Westlake shall make full payment for the Service Area System by a payment of $121,016.00 to Keller, in accordance with the provisions of Section 3.2 herein. Westlake's payments shall occur by means of wire transfers to Keller, through Keller's designated financial institution. 6.2, The parties agree that each party shall bear its own costs incurred in disconnecting the Service Area System from Keller's water system with Keller being responsible for the cut-offs and valve installations at each disconnect location. SECTION 7: CERTIFICATES OF CONVENIENCE AND NECESSITY 7.1 Within ten (10) days of the execution of this Agreement, Keller shall file a letter with SOAH and the Commission withdrawing its protest to Westlake's Water CCN 1403\00\agt001127 mcr20 9 application, with prejudice to the refiling of same in any form, provided Westlake is not in default of the provisions of this Agreement. 7.2 Within sixty (60) days following Westlake's assumption of operational and service responsibilities in the Service Area, Westlake shall file an application with the Commission seeking decertification of that portion of Keller's CCN No. 10975 that includes the Service Area. Keller shall provide Westlake a release of such area, agreeing to such decertification, and Keller agrees to support Westlake's application for such decertification. In such request, Westlake shall also file a copy of this Agreement with the Commission. 7.3 Keller shall cooperate and assist with the filing and prosecution of Westlake's application to decertify said portion of CCN No. 10975. Keller shall provide Westlake copies of any existing documents required to be filed with SOAH or TNRCC under this Section pursuant to the provisions of Section 15 of this Agreement. SECTION 8: STUDIES AND INVESTIGATIONS 8.1 Westlake shall develop and submit to Keller for review a preliminary plan for separating the Service Area System from Keller's water utility system. 8.2 Keller shall approve such plan, or suggest modification of such plan, and the Parties agree to use their best effort to develop and approve such plan. 1403\00\a g t001127 m cr20 10 SECTION 9: EFFECTIVE DATE OF TRANSFER OF FACILITIES 9.1 Westlake and Keller agree that the Date of Transfer of ownership of the Service Area System shall occur between December 1, 2000 and March 1, 2001, and shall be the day on which Keller transfers ownership of the water system facilities and appurtenances associated with the Service Area System, as described in part in Exhibit B of this Agreement, and Westlake makes the Initial Payment of a portion of the purchase price, as provided in Section 3.2. The transfer of ownership will be effected by an instrument of conveyance from Keller in which Keller will quitclaim all of the right, title, and interest it has in the real and personal property associated with the Service Area System as described in part in Exhibit B of this Agreement. Keller shall deliver the fully executed instrument of conveyance to Westlake simultaneously with Westlake's Initial Payment of $40,400.00 pursuant to this Agreement. 9.2 The transfer of operation of the Service Area System shall occur as provided for in this Agreement and in the Facilities Operating Agreement. SECTION 10: KELLER'S REPRESENTATIONS, WARRANTIES, AND COVENANTS 10.1 Keller hereby represents and warrants as follows, which representations and warranties shall be true and correct as of the date of execution of this Agreement and as of the Date of Transfer and shall survive the Date of Transfer, and the truth of which representations and warranties shall be a condition precedent to Westlake's obligation to close and complete the transaction contemplated by this Agreement: 1403\00\agt001127mcr20 11 (A) Keller has, without the joinder of any other person or entity, the full right, power and authority to sell and convey the Service Area System to Westlake and to carry out the obligations of Keller hereunder, and no third party has any interest in or right to acquire the Service Area System. (B) To the best knowledge of Keller, there is no condition existing with respect to the Service Area System or any part thereof which violates any law, rule, regulation, ordinance, code, order, decree or ruling of any city, state or federal governmental agency or court; however, Keller makes no warranty respecting any such condition and Westlake will acquire such Service Area System AS IS. (C) Except as referenced in Section 2 of this Agreement, there is no existing or pending litigation of any kind, nor are there any known existing or pending claims, condemnations or sales in lieu thereof, contracts of sale, options to purchase, or rights of first refusal with respect to any portion of the Service Area System, nor have any such actions, suits, proceedings, claims or other such matters been threatened or asserted. (D) The party or parties executing this Agreement on behalf of Keller have been duly authorized and are empowered to bind Keller to this Agreement. (E) Keller will not, after the date of execution of this Agreement, without the express prior written consent of Westlake, create or allow to be placed upon the Service Area System or any part thereof any restrictions, 1403\00\agt001127m cr20 12 encumbrances, liens, easements or any other matters that would constitute an encumbrance upon the Service Area System. 10.2 Keller represents and warrants that all construction, maintenance, and operational activities conducted by Keller within the city limits of Westlake will be performed in accordance with such reasonable regulations or ordinances as Westlake may from time to time adopt to address such activities. 10.3 Each of the foregoing warranties and representations are true and correct as of the date hereof and shall be true and correct as of the Date of Transfer. If any of the representations or warranties contained herein are untrue or incorrect, Keller shall, at all times before the Date of Transfer, use its best efforts to make such representations or warranties true and correct and shall take all action as may be necessary or appropriate in connection therewith. SECTION 11: CASUALTY LOSS 11.1 All risk of loss or damage to the Service Area System shall remain upon Keller prior to the Date of Transfer, except that this obligation does not include such loss or damage caused by: (1) Westlake, its officers, agents or employees, or an independent contractor of Westlake, in the course of disconnecting the Service Area System from the Keller system; or (2) any negligent act or omission of Westlake, its officers, agents, employees or independent contractors in the course of business prior to the Date of Transfer. Except as otherwise provided in this section, in the event of loss, damage or destruction to the Service Area System prior to the Date of Transfer, Keller shall, at 1403\00\agt001127m c20 13 Keller's sole expense, repair the same prior to the expiration of six months of such loss, damage or destruction. SECTION 12: MANDATORY MEDIATION PROVISIONS. 12.1 Notwithstanding any other provisions of this Agreement, Westlake and Keller agree that prior to either Party bringing suit for specific performance, injunction, or damages for the alleged failure of the other Party to comply with any terms, conditions, or provisions of this Agreement, this Agreement shall be submitted for mediation in accordance with this Section. 12.2 In order to institute mediation, either Party may, on written notice to the other Party, initiate non-binding mediation before a single mediator affiliated with Judicial Arbitration and Mediation Service, Inc. ("JAMS") in Tarrant County, Texas, or another mediation service mutually agreeable to the Parties. The Mediator shall be selected by agreement of the Parties within thirty (30) days after either Party first requests mediation of the other. If a single mediator cannot be agreed upon, then each Party shall select its own Mediator from those on the approved list of the mediation service used; those two mediators will then select a third independent Mediator who will conduct the mediation session(s). 12.3 Neither Party shall be excused from complying with any of the terms and conditions of this Agreement because of any failure of the other Party upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. 1403\00\agt001127 mcr20 14 SECTION 13: OTHER AGREEMENTS 13.1 The Parties agree to use their best efforts to execute an Interlocal Cooperation Act agreement or other agreement for the joint funding use, operation and construction of an elevated water storage facility to be located in Keller near the northern city limits of Keller at Knox Road, the capital and operational costs thereof to be proportionately allocated to each Party in accordance with their respective capacities reserved and used therein. SECTION 14: GENERAL PROVISIONS 14.1 NOTICES Any notices required to be given herein shall be deemed to have been sufficiently given to either party for all purposes hereof if mailed by certified mail, postage prepaid, addressed as follows: TO CITY OF KELLER City Manager City of Keller P.O. Box 770 Keller, Texas 76244 TO TOWN OF WESTLAKE Town Manager Town of Westlake 3 Village Circle, Suite 207 Westlake, Texas 76262 or to such other respective address as the parties may designate from time to time in writing in accordance with this notice provision. 14.2 GOVERNING LAW This Agreement shall be governed and construed pursuant to the laws of the State of Texas. All obligations herein shall be performable and all payment shall be due and payable in Tarrant County, Texas. 1403\00\a gt001127m cr20 15 14.3 INCORPORATION The Preamble set forth before Section 1 of this Agreement is hereby incorporated by reference as if set forth fully at this point. 14.4 ENTIRE AGREEMENT This Agreement contains all commitments and agreements of Westlake and Keller with respect to the subject matter hereof, and no verbal or written commitments, other than the Facilities Operating Agreement, shall have any force or effect if not contained herein. This Agreement may not be modified or amended other than by a written instrument jointly executed by Keller and Westlake. 14.5 SEVERABILITY If any section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this Agreement is for any reason held invalid or unenforceable by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby but shall be deemed as a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof, and each remaining section, subsection, sentence, clause, phrase, term, provision, condition, covenant and portion of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 14.6 CAPTIONS AND CONSTRUCTION All section titles or captions contained in this Agreement shall not be deemed a part of this Agreement and shall not affect the meaning or interpretation of this Agreement or any provision hereof. Both parties have participated in the preparation of this Agreement so that this Agreement shall not be construed either more or less favorably for or against either party. 1403\00\agt001127mcr20 16 IN WITNESS WHEREOF, the Parties, acting under authority of their respective governing bodies, have caused this Agreement to be duly executed in several counterparts, each of which shall constitute an original, all as of this .3 Q day of 2000. TOWN OF WESTLAKE, TEXAS By: Scott radley, Mayor ATTEST: Inge rosswy, Town S@pretary (SEAL) �V, ' 1474 ATTEST: Cityry (SEAL) 1403\00\agt001127mcr20 17 APPROVED AS TO FORM AND CONTENT: 0 Special Counsel for the Town of Westlake By: <�;, �0o SpecialounC selforthe 1403\00\agt001127 mcr20 of Keller iff F' KELLER CCN 1V KELLER CCN WITHIN WESTLAKE TOWN LIMITS DENTON COUNTY_ TARRANT COUNTY D DENTO_ _ COUNTY TARRA COUNTY F 506 WN OF WESTLAKE, TEXAS EXHIBIT A SERVICE AREA THE HOGAN CORPORATION Engineers • Planners • Consultants DALLAS • AUSTIN DESCRIPTION OF FACILITIES TO BE TRANSFERRED Existing City of Keller water distribution facilities to be transferred to the Town of Westlake shall consist of all water mains as generally described below and shown on the map titled Exhibit B, including all associated valves, fire and/or flush hydrants, fittings, meters, service taps, service lines, and other water system appurtenances, as well as all related easements and/or rights-of-way for said facilities. 1. Approximately 3,450 lineal feet of existing water main within the Stagecoach Hills subdivision, west of Roanoke Road; existing water mains along Roanoke Road south of the intersection of the northerly city limits of Keller with Roanoke Road shall remain the property of Keller. 2. Approximately 5,200 lineal feet of existing water main extending along Roanoke Road north of the intersection of the northerly city limits of Keller with Roanoke Road; the existing water main along Roanoke Road south of this point shall remain the property of Keller. 3. Approximately 1,500 lineal feet of existing water main along Mahoeta Boone Trail, including the existing water main along J.T. Ottinger Road south to the intersection of the northerly city limits of Keller with J.T. Ottinger Road; the existing water main along J.T. Ottinger Road south of this point shall remain the property of Keller. 4. Approximately 3,700 lineal feet of existing water main within the Estates of Westlake subdivision, including any existing water mains along Dove Road and Pearson Lane north and west of the subdivision, respectively, and also including the existing water main along Pearson Lane north of the intersection of the northerly city limits of Keller with Pearson Lane; the existing water main along Pearson Lane south of this point shall remain the property of Keller. 5. Approximately 2,700 lineal feet of existing water main along Aspen Lane, east of Pearson Lane; the existing water main along Pearson Lane south of the intersection of the northerly city limits of Keller with Pearson Lane shall remain the property of Keller. LEGEND EXISTING WATER EXISTING WATER TO BE ACQUIRED BY WESTLAKE __DENTON_COUNTY _ TARRANT COUNTY G\� ,�OR� F ORS n^ C9 of t N o w I'M zaoo Amo _ ULNTO_ _ COUNTY TARRA COUNTY o F o,� �� 5O 5n - ' �I \ r NN OF WESTLAKE, TEXAS EXHIBIT B FACILITIES TO BE AQUIRED THE HOGAN CORPORATION Engineers • Planners . Consultants DALLAS • AUSTIN FACILITIES OPERATING AGREEMENT BETWEEN THE TOWN OF WESTLAKE, TEXAS AND THE CITY OF KELLER, TEXAS THE TOWN OF WESTLAKE, TEXAS ("Westlake") and THE CITY OF KELLER, TEXAS ("Keller'), both being municipal corporations of the State of Texas, and together sometimes referred to herein as the Parties, enter into this Facilities Operating Agreement (the "Agreement"). The purpose of this Agreement is to establish the method by which the responsibility to operate and the obligation to provide water services in relation to certain Water Facilities described herein will be transferred to Westlake pursuant to the Settlement and Purchase Agreement executed by the Parties simultaneously with this Agreement. WHEREAS, the Parties have entered into a Settlement and Purchase Agreement conveying ownership of certain Water Facilities from Keller to Westlake; and WHEREAS, the Parties desire to provide for an orderly transfer of the operation of such Water Facilities by allowing Keller to continue to operate and maintain such facilities and bill Facilities Customers for a period of time after the Facilities are purchased by and transferred to Westlake. NOW, THEREFORE, in consideration of the mutual promises, covenants, benefits, and releases set forth herein, Westlake and Keller contract and agree as follows: 1403\00\agt000921 mcr2 1 SECTION 1. DEFINITIONS For the purposes of this Agreement, the following words, terms, phrases, and their derivations shall have the meanings set forth below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. 1.1 "Date of Transfer' means the date at which ownership of the Facilities is transferred from Keller to Westlake pursuant to the Settlement and Purchase Agreement. 1.2 "Facilities" or "Water Facilities" mean the water facilities transferred from Keller to Westlake pursuant to the Settlement and Purchase Agreement, described as the Service Area System therein, and include, but are not limited to, all water transmission mains, distribution lines, facilities, appurtenances, easements, special purpose rights of way, improvements, fixtures, and attached personal property (such as wells, pumps, pipes, valves, electrical connections, storage tanks, customer water meters, meter vaults and fire hydrants and any and all appurtenances thereto) located within the town limits of Westlake. These facilities are generally identified in Exhibit B of the Settlement and Purchase Agreement. 1.3 "Facilities Customers" means those water utility customers located within the Service Area that are provided water service by the Facilities that are the subject of this Agreement. The term also includes all present and future water and wastewater utilities customers within the Service Area unless otherwise indicated. 1403\00\agt000921 mcr2 2 1.4 "Operate" or "Operations" means to manage, inspect, maintain, and repair the Facilities. The term includes, but is not limited to, the provision of water utility services to Facilities Customers; the provision of standby personnel for emergencies; routine Facilities inspections, including those mandated by all applicable statutes, ordinances, and regulations, routine repair not entailing the use of multiple labor crew members and back hoe or other heavy equipment and which does not constitute a capitalized replacement or capitalized repair extending the life of the facilities; and compliance with reporting requirements of regulatory agencies. 1.5 'Revenues" means all amounts of money collected by Keller from Facilities Customers during the Transition Period relating to water service, including but not limited to water fees, service connect/disconnect fees, delinquent billing fees, and any other special fees related to water service assessed to Facility Customers. 1.6 "Service Area" means the area located within the town limits of Westlake that contains the Water Facilities transferred to Westlake from Keller pursuant to the Settlement and Purchase Agreement, and includes, without limitation, the areas depicted in Exhibit A of the Settlement and Purchase Agreement. The Service Area includes all customer accounts served by Keller that are to be transferred to Westlake in accordance with the Settlement and Purchase Agreement. 1.7 "Service Fee" means those fees paid by Facilities Customers for water services within the Service Area. 1.8 "Settlement and Purchase Agreemen " means the document entitled "Settlement and Purchase Agreement Between the Town of Westlake, Texas and the 1403\00\agt000921 mcr2 3 City of Keller, Texas" executed by Westlake and Keller simultaneously with the execution of this Agreement. The Settlement and Purchase Agreement is the instrument by which Westlake and Keller contracted for the sale of the Water Facilities that are the subject of this Agreement. 1.9 "Transition Period" means three (3) years from the Date of Transfer. During this three-year period, Keller and Westlake intend to implement an orderly transition of the Operations of the Facilities purchased by Westlake from Keller as provided in this Agreement and the Settlement and Purchase Agreement. SECTION 2. TERM 2.1 This Agreement will remain in full force and effect for a period of three (3) years from the Date of Transfer unless renewed by mutual written agreement of the Parties. SECTION 3. FACILITIES INSPECTION OPERATION MAINTENANCE AND REPAIR 3.1 Keller shall Operate the Facilities on behalf of Westlake for the Transition Period, except as provided for herein, beginning from the Date of Transfer. During this period, Keller shall be obligated to deliver water services to Facilities Customers in the Service Area in accordance with the Facilities Customers' needs and demands. 3.2 In the event that Keller fails to perform routine maintenance and repairs upon the Facilities during the Transition Period as required by Section 3.1 after notice and/or a request by Westlake to Keller of at least twenty (20) days, Westlake may perform such routine maintenance and repairs by use of either Westlake's employees, independent contractors, or both. Keller shall reimburse Westlake for the cost of all labor, 1403\00\agt000921 mcr2 4 materials, equipment, and supplies used in performing routine maintenance and repairs performed by Westlake which do not require a repair crew and back hoe or other heavy equipment. Westlake shall reimburse Keller for the cost of all labor, materials, equipment, and supplies used in any non -routine repair of Facilities performed by Keller requiring a repair crew and backhoe or other heavy equipment, or which serves to extend the capitalized life of the facility so repaired. 3.3 At the conclusion of the Transition Period, or as provided for in Section 3.9 herein, Westlake will take over responsibility for Operations of the Facilities from Keller. Following the period of Keller's Operations of the Facilities, Keller shall have no further responsibility for Operations of the Facilities. 3.4 Westlake shall be responsible for collection of fees for water taps in an amount not less than set by Keller's fee schedule and water impact fees at the time such water taps are acquired. Westlake will furnish a copy of permits to Keller and remit all tap fees collected within the Service Area in amounts consistent with Keller's tap fee schedule in order that Keller can perform such taps as a contractor to Westlake. 3.5 The work of maintaining and operating the Facilities shall be done under the regulation of Westlake and subject to the police power of Westlake and Westlake's ordinances. 3.6 If the Operation of the Facilities requires the excavation of any public rights- of-way in Westlake, subject to Keller's right of reimbursement under Section 3.2, Keller shall replace and properly relay and repair the surface, base, and landscape treatment of any sidewalk or public right-of-way that may be excavated or damaged by reason of such 1403\00\agt000921 mcr2 5 maintenance, repair, and/or operation of the Facilities within a reasonable time after completion of the work, and in accordance with existing standards of Westlake in effect at the time of the work. Keller shall give Westlake at least twenty-four (24) hours notice prior to undertaking any repair, replacement, or maintenance of the Facilities other than an emergency repair or replacement, in which case, Keller will give Westlake such notice as may be most timely and practicable. Upon failure of Keller to perform any such repair or replacement work, after twenty (20) days notice in writing shall have been given by Westlake to Keller, Westlake may repair such portion of the right-of-way as may have been disturbed by Keller, its contractors or agents. Notwithstanding the foregoing, if Westlake determines that the failure of Keller to properly repair or restore the right-of-way constitutes a safety hazard to the public, Westlake may undertake emergency repairs and restoration efforts. 3.7 Except in an emergency, Keller shall not excavate any right-of-way without first notifying the Town Manager of Westlake and obtaining a permit therefor as required by Westlake ordinances. If approval is required, it shall be given if the proposed excavation is in compliance with the requirements of Westlake ordinances. The Town Manager or his/her designee shall be notified as soon as practicable regarding work performed under emergency conditions, and Keller shall comply with any reasonable requirements of Westlake for the restoration of the rights-of-way. The failure of Keller to request and obtain a permit from Westlake prior to excavation of any right-of-way, except in an emergency, will subject Keller to a stop -work order from Westlake or enforcement action pursuant to Westlake's Code of Ordinances. Failure to act upon the permit within 1403\00\agt000921 mcr2 6 90 days of issuance shall cause the permit to become invalid, and will require Keller to obtain another permit. 3.8 Westlake and Keller agree that their obligations hereunder shall include compliance with the requirements made under all applicable and valid laws, and any rules and regulations issued pursuant thereto, provided, however, that nothing contained herein shall be construed as affording any rights, causes of action, or remedies to any person not a party to this Agreement. 3.9 Notwithstanding any provision of the Settlement and Purchase Agreement or this Agreement to the contrary, Westlake may assume Operations of the Facilities at any time during the Transition Period following the physical separation of the Facilities from Keller's water system, upon thirty (30) days written notice to Keller. At such time, Westlake shall be entitled to initiate its own water service and billing cycle and the billing of Service Fees and collection of Revenues associated therewith from Facilities Customers. Westlake shall be responsible to Keller for all service fees and charges incurred by such Facilities' Customers and unpaid on the date on which Westlake assumes Operation of the Facilities, payment for which shall be made within thirty (30) days of Keller's invoice of such unpaid accounts to Westlake. SECTION 4. BILLING 4.1 Except as provided for in Section 3.9 of this Agreement, Keller agrees to read Facilities Customer meters and bill Facilities Customers during the Transition Period. Westlake authorizes Keller to charge Facilities Customers in accordance with Keller's rates and charges established by Keller during such Transition Period and to implement 1403\00\agt000921 mcr2 7 any water conservation and peak day water use restrictions applicable to Keller's water system during such period. Revenues generated from accounts in the Service Area and collected by Keller shall be retained by Keller. 4.2 During the Transition Period, or any part thereof where Keller is providing water utility services to the Service Area, Keller shall continue to bill Facilities Customers on its current billing cycle. 4.3 If Westlake has adequate infrastructure and operational and management staff to assume the water utility services for the Service Area during the Transition Period, Westlake shall have the option to perform these services at its sole discretion following the physical separation of the Facilities from Keller's water system and upon thirty (30) days written notice to Keller. If Westlake exercises the option to perform such services, Keller shall not undertake, and Westlake shall not be obligated to pay Keller for, such services. SECTION 5. COLLECTION AND TRANSFER OF REVENUES 5.1 Keller agrees to bill Facilities Customers and to collect Revenues from Facilities Customers during the Transition Period. 5.2 Keller shall keep accurate books of accounting concerning its collection of Revenues. Westlake shall have the right and privilege by and through its auditor or other persons designated by it to freely examine the books, vouchers, and records maintained by Keller at any reasonable time upon request, for any reason. 5.3 Upon expiration of the Transition Period, or prior to such expiration and upon notification by Westlake to Keller pursuant to Section 3.9 herein, Westlake shall 1403\00\agt000921 mcr2 8 have the right to bill Facilities Customers and to collect Revenues from Facilities Customers. SECTION 6. CUSTOMER SERVICE ACCOUNTS AND SECURITY DEPOSITS 6.1 Keller shall maintain all Facilities Customer accounts and security deposits during the Transition Period or until Westlake initiates water utility service to Facilities Customers pursuant to Section 3.9 of this Agreement. During its Operations of the Facilities, Keller shall endeavor to resolve any Facilities Customer disputes regarding amounts owed to Keller for service provided by Keller prior to Westlake's Operations of the Facilities. 6.2 On the last day of the Transition Period or within thirty (30) days of Westlake's assumption of Operations pursuant to Section 3.9 of this Agreement, Keller shall transfer all Facilities Customer accounts and security deposits, if any, to Westlake. Keller may retain a customers security deposit to the extent such deposit reimburses Keller for outstanding payments due Keller for services provided to such customer by Keller prior to such transfer. Keller shall invoice Westlake for all Facilities Customers' unpaid accounts within thirty (30) days of such transfer and Westlake shall pay Keller the amount invoiced within thirty (30) days of receipt. 6.3 Within thirty (30) days after the Transition Period, or within thirty (30) days of Westlake's assumption of Operations pursuant to Section 3.9 of this Agreement, Keller shall, to the extent that same exists and is available, provide Westlake with an updated set of all of the data, plans, and GIS system information specified in Section 4.2 of the Settlement and Purchase Agreement. This information shall be provided in hard copy 1403\00\agt000921 mcr2 9 and computer media and shall include all available information developed for the Facilities. SECTION 7. FACILITIES INSURANCE 7.1 Keller shall maintain adequate liability insurance to cover its Operations of the Facilities during the Transition Period. Westlake shall maintain adequate casualty insurance on the Facilities during the Transition Period. SECTION 8. GENERAL PROVISIONS 8.1 NOTICES. Any notices required to be given herein shall be deemed to have been sufficiently given to either party for all purposes hereof if mailed by certified mail, postage prepaid, addressed as follows: TO CITY OF KELLER City Manager City of Keller P.O. Box 770 Keller. Texas 76244 TO TOWN OF WESTLAKE Town Manager Town of Westlake 3 Village Circle, Suite 207 Westlake, Texas 76262 or to such other respective address as the parties may designate from time to time in writing in accordance with this notice provision. 8.2 PUBLIC PURPOSE; RESERVATION OF RIGHTS. All of the requirements provided in this Agreement are hereby declared to be for a public purpose and the health, safety, and welfare of the general public. Any member of the governing body or city official or employee of either Party charged with the enforcement of this Agreement, acting in the discharge of his or her duties, shall not thereby be rendered personally liable; and is hereby relieved from all personal liability for any damage that might accrue to 1403\00\agt000921 mcr2 10 persons or property as a result of any act required or permitted in the discharge of said duties. 8.3 SEVERABILITY. If any section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this Agreement is for any reason held invalid or unenforceable by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby but shall be deemed as a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof, and each remaining section, subsection, sentence, clause, phrase, term, provision, condition, covenant and portion of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 8.4 ENTIRE AGREEMENT. This Agreement shall constitute the entire Agreement between Westlake and Keller and may not be modified or amended other than by a written instrument executed by both Parties. 8.5 INDEMNIFICATION. (a) To the extent allowed by law, Keller shall indemnify and hold Westlake harmless against all claims, causes of action, costs, expenses (including reasonable attorney fees) and damages to persons or property, to the extent proximately caused by the negligence or willful misconduct of Keller's officers, employees or agents arising directly or indirectly out of Keller's Operations of the Facilities during the Transition Period. This duty to indemnify only applies where, and to the extent, Keller's negligence or willful misconduct is either the sole or a contributing cause of the injury, death or damage. It does not extend to any portion of any injury, death or damage 1403\00\agt000921 mcr2 11 S caused by either the sole or contributing negligence or intentional act or omission of Westlake or any third party under the control of Westlake. (b) To the extent allowed by law, Westlake shall indemnify and hold Keller harmless against all claims, causes of action, costs, expenses (including reasonable attorney fees) and damages to persons or property, to the extent proximately caused by the negligence or willful misconduct of Westlake's officers, employees or agents arising directly or indirectly out of Westlake's Operations of the Facilities during the Transition Period. This duty to indemnify only applies where, and to the extent, Westlake's negligence or willful misconduct is either the sole or a contributing cause of the injury, death or damage. It does not extend to any portion of any injury, death or damage caused by either the sole or contributing negligence or intentional act or omission of Keller or any third party under the control of Keller. (c) Neither paragraph (a) nor (b) is intended to create liability for the benefit of third parties but are solely for the benefit of Westlake and Keller. 8.6 MANDATORY MEDIATION PROVISIONS. (a) Notwithstanding any other provisions of this Agreement, Westlake and Keller agree that prior to either Party bringing suit for specific performance, injunction, or damages for the alleged failure of the other Party to comply with any terms, conditions, or provisions of this Agreement, this Agreement shall be submitted for mediation in accordance with paragraph (b) of this Section. (b) In order to institute mediation, either Party may, on written notice to the other Party, initiate non-binding mediation before a single mediator affiliated with Judicial 1403\00\agto00921 mcr2 12 Arbitration and Mediation Service, Inc. ("JAMS") in Tarrant County, Texas, or another mediation service mutually agreeable to the Parties. The Mediator shall be selected by agreement of the Parties within thirty (30) days after either Party first requests mediation of the other. If a single mediator cannot be agreed upon, then each Party shall select its own Mediator from those on the approved list of the mediation service used; those two mediators will then select a third independent Mediator who will conduct the mediation session(s). (c) Neither Party shall be excused from complying with any of the terms and conditions of this Agreement because of any failure of the other Party upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. 8.7 FORCE MAJEURE. In case by reason of force majeure, as hereafter defined, either Party shall be rendered unable wholly or in part to carry out its obligations under this Agreement, then if such Party shall give notice and full particulars of such force majeure in writing to the other Party within a reasonable time after 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 periods, and any such Party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term "force majeure" as employed herein shall mean: acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemy; orders of any kind of the Government of the United States, of the State of Texas, or of any civil or military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes; storms; floods; washouts; 1403\00\agt000921 mcr2 13 droughts; arrests; restraining of government and people; civil disturbances; explosions; breakage or accidents to machinery, pipe lines, or canals; partial or entire failure of water supply; any other causes not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the Party having the difficulty, and that the above requirement that any force majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the striking or opposing parties when such settlement is unfavorable in the judgment of the Party having the difficulty. 8.8 REGULATORY BODIES. This Agreement shall be subject to all valid rules, regulations, and laws applicable hereto passed or promulgated by the United States of America, the State of Texas, or any governmental body or agency having lawful jurisdiction, or any authorized representative or agency of any of the above. 8.9 GOVERNING LAW. This Agreement shall be governed and construed pursuant to the laws of the State of Texas. All obligations herein shall be performable and all payment shall be due and payable in Tarrant County, Texas. 8.10 CAPTIONS AND CONSTRUCTION. All section titles or captions contained in this Agreement shall not be deemed a part of this Agreement and shall not affect the meaning or interpretation of this Agreement or any provision hereof. The Parties have participated in the preparation of this Agreement so that this Agreement shall not be construed either more or less favorably for or against either Party. 1403\00\agt000921 mcr2 14 8.11 INCORPORATION. The Preamble set forth before Section 1 of this Agreement is hereby incorporated by reference as if set forth fully at this point. IN WITNESS WHEREOF, the Parties, acting under authority of their respective governing bodies, have caused this Agreement to be duly executed in several counterparts, each of which shall constitute an original, all as of this 33 � day of 200$. TOWN OF WESTLAKE, TEXAS By: & Scott Bradley, Mayo ATTEST: Ginger "rosswy, Town Saretary (SEAL) CITY OF KELLER, TEXAS ATTEST: (SEAL) 1403\00\agt000921 mcr2 15 APPROVED AS TO FORM AND CONTENT: By: �--� Special Counsel for the Town of Westlake By: Com` �) (\�) e,-Is�� Special G unset for the City of Keller 1403\00\agt000921 mcr2 16 00111"RACT NO. STATE OF TEXAS § _ _m o _ COUNTY OF TARRANT § INTERLOCAL AGREEMENT BETWEEN THE CITY OF KELLER AND THE TOWN OF WESTLAKE PROVIDING FOR THE JOINT CONSTRUCTION, OPERATION, MAINTENANCE, AND USE OF AN ELEVATED WATER STORAGE FACILITY AND APPURTENANCES THERETO This Interlocal Agreement (hereinafter referred to as "Agreement") for the joint construction, operation, maintenance, and use of an elevated water storage facility and appurtenances thereto is made and entered into by and between the City of Keller, Texas, a municipal corporation and political subdivision of the State of Texas located in Tarrant County, Texas (hereinafter referred to as "Keller") and the Town of Westlake, a municipal corporation and political subdivision of the State of Texas located in Tarrant and Denton County, Texas (hereinafter referred to as "Westlake"). WHEREAS, during the term of this Agreement, a new elevated water storage facility and related water distribution equipment (hereinafter referred to as "Facility") therefor will be constructed, the capacity of which is intended to serve both the citizens of Keller and Westlake; and WHEREAS, TEXAS GOVERNMENT CODE ANNOTATED § 791.001 et seq., as amended (the "Act") provides authorization for municipalities to contract with one another for the performance of governmental functions and services under the terms of the Act; and WHEREAS, it has been determined that it is in the mutual best interest of the citizens in both Keller and Westlake to share in the cost of construction, use, operation and maintenance of the Facility which is also essential to meeting the water service needs of both parties; and WHEREAS, all costs shall be shared proportionally based on the cost of land acquisition and Facility construction applicable to each municipality; and the real 'property and the Facility, excluding Westlake's distribution equipment therein, shall be located in and owned by Keller; and WHEREAS, Keller agrees to debt fmance the property acquisition and construction of the Facility whereby Westlake agrees to pay its proportionate share, as set forth above, of the annual principal and interest costs associated therewith throughout the term of said debt service; and WHEREAS, both parties agree to operate the Facility so as to not conflict with any contractual requirements, terms and conditions of each municipality's water supply contract with the City of Forth Worth, Texas; and .CYi�i `OBT31311I I NOW, THEREFORE, for and in consideration of the mutual covenants, terms and conditions set forth herein, and the mutual benefits to each party to be gained thereby, the receipt and sufficiency of which are hereby acknowledged, Keller and Westlake hereby contract, covenant, warrant, and agree as follows: I ADOPTION OF PREAMBLE All of the matters stated in the preamble of this Agreement are true and correct and are hereby incorporated into the body of this Agreement as though fully set forth in their entirety herein. II TERM OF THE AGREEMENT The initial term of this Agreement shall be for twenty (20) years; however, either party, by written notice to other party prior to the expiration of the initial term, may elect to continue said Agreement for another twenty (20) years subject to compliance with all terms and conditions of this Agreement. III OBLIGATIONS OF THE PARTIES 1. Keller agrees to contract for professional engineering, design, surveying, testing, and construction inspection services relating to the construction of the Facility. Westlake reserves the right of review and acceptance of all engineering and design documents prior to advertising for competitive bids, and hereby agrees to pay one half of the cost for the engineering, design, surveying, testing, and construction inspection services contracts or any other contracts that may be mutually agreed to by both parties. 2. Keller agrees to competitively bid the Facility construction in accordance with Section 252.001 et seq, of the Texas Local Government Code. 3. Keller agrees to obtain and maintain all necessary local, state and federal permits as may be required relating to the operation and maintenance of the Facility. The cost of all permits and renewals thereof shall be shared equally by Keller and Westlake. 4. Keller agrees to finance the engineering, design and inspection services; land acquisition; and construction of the facility for a term not to exceed twenty (20) years. 5. Keller agrees to provide 2.343 acres of land described as Tract 413, Abstract No. 142, out of the A. Barnes Survey in Keller, Tarrant County, Texas to be exclusively used for the purpose of constructing and operating said Facility. The general location of the 2 property is the northwest corner of Knox Road and Ravenwood Drive as depicted on Exhibit "A". 6. During the term of the Agreement, Westlake agrees to make semi-annual payments to Keller on December 30 and June 30 of each year, subsequent to, and beginning with the first semi-annual debt service (principal and interest) payment due to be paid by Keller following the issuance of said debt. The amount of Westlake's payment shall be determined based on Westlake's proportionate share of cost associated with the land acquisition (Facility site) and construction of the Facility, plus Westlake's cost of water (inflow/outflow) lines and/or distribution equipment pertinent to Westlake's water distribution system. 7. Within thirty (30) days from the date of the issuance of debt by Keller, Westlake agrees to deposit in Keller's depository bank an amount equal to highest total annual principal and interest payment due Westlake during the term of the debt. The Westlake deposit shall be made to the Keller/Westlake Water Storage Escrow account and shall only be used in the event Westlake is unable to make its required debt payment to Keller. At the end of the term of the debt issue or upon the total payment of the principal and interest of said issue, the remaining escrow account balance, plus accrued interest, shall be returned to Westlake in its entirety within thirty (30) days of the date of final debt payment. 8. Access to the Facility and equipment therein shall be provided to only designated or authorized personnel of each party, authorized to operate and/or maintain the Facility. 9. General site maintenance within and around the Facility, including the access road shall be by Keller. No outside storage within the fenced site shall be allowed, except upon agreement of both parties. Not later than August 31st of each year, Keller shall provide Westlake a detailed report of the previous twelve months of site maintenance. Westlake agrees to reimburse Keller not less than fifty (50) percent of the cost of said annual maintenance prior to September 30th of the current fiscal year in which the maintenance is billed. 10. It is agreed that the Facility will require repainting from time -to -time, the cost of which will be shared equally by both parties. 11. In the event the City of Keller is approached by interests desiring to lease the Facility for the purpose of constructing telecommunications equipment, or any other purpose, Westlake shall have the right to approve such request and shall share equally with Keller in all revenues generated by the mutual approval of such an agreement. 3 IV INDEMNIFICATION AND HOLD HARMLESS 1. Keller agrees to indemnify and hold Westlake harmless from any claim by a third party for damages arising from or resulting from the construction, operation or use of the Facility or from the real property constructed thereon during the term of this Agreement to the extent allowed by law, and to the extent of Keller's liability under the Texas Tort Claims Act; provided, however, that nothing herein shall require Keller to indemnify and hold harmless Westlake for any acts or accounts for which Keller has no liability under Texas law. 2. Westlake agrees to indemnify and hold Keller harmless from any claim by a third party for damages arising from or resulting from the construction, operation or use of the Facility or from the real property constructed thereon during the term of this Agreement to the extent allowed by law, and to the extent of Westlake's liability under the Texas Tort Claims Act; provided, however, that nothing herein shall require Westlake to indemnify and hold harmless Keller for any act or accounts for which Westlake has no liability under Texas law. 3. Each party shall maintain liability insurance consistent with generally accepted practices for municipalities or as may be required by law. V NOTICES Any notice contemplated or required to be given under this Agreement shall be deemed to have been adequately given upon the later of actual delivery by hand or three business days after it is deposited in the United States certified mail return receipt requested and properly addressed to the other party as follows: City of Keller P.O. Box 770 Keller, TX 76244 Attention: City Manager Town of Westlake 3 Village Circle,'Suite 207 Westlake, TX 76262 Attention: Town Manager Any change of address may be made by either party upon the giving of ten (10) days prior written notice. 1. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 2. This Agreement constitutes the sole and only agreement of the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings or written or oral agreements between the parties respecting the subject matter hereof. There are no representations, agreements, arrangements, or 10 3. understandings, oral or written, between or among the parties relating to the subject matter hereof, which are not fully expressed herein. No amendment, modification or alteration of the terms hereof shall be binding unless the same is in writing, dated subsequent to the date hereof and duly executed by both parties. The provisions of this Agreement are severable and the invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision. It is the intention of the parties that each provision hereof be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law. If, in case, any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceable shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 5. This Agreement has been jointly negotiated by the parties and shall not be construed against a party because that party may have assumed primary responsibility for the drafting of this Agreement. The obligations and undertakings of each of the parties to this Agreement are and shall be performable in Tarrant County, Texas. 7. Each party hereto warrants that is has received authority from its governing body to enter into this Agreement. EXECUTED this the day of D,—fTA 2000. CITY OF KELLER, TEXAS TOWN OF WESTLAKE, TEXAS _ By —� Lyle Sher, City Manager Trent Petry, Town anager ATTEST: �eGS-tepUen4s,ity *Scretar0yW--111 ATTEST: By: s Ging Crosswy, Towroecretary SET Exhibit A City of Keller and City of Westlake Interlocal Agreement Description of Property a 2.343 acre tract of land situated) the A. Barnes ey, Abstract No. 142, City of Keller, TarrantCounty, Texas, .2.343 acre tract of land being deeded to Pamela S: Koop as CRANVILL£ W. ALE9ded in volume 13709. Page 282 of the Deed Records of Tarrant WIFE, BILLIE J. Aity, Texas, said 2.343 acre tract of land being more VOLUME 8671, Fcularly described by metes and bounds and follows: B.R.T.C.7 rVNING at a 1/2 inch iron rod found for the northeast corner - (REFERENCE BEARING) said 2.343 acre tract of land, said 1/2 inch iron rad being N 90'00'00••Esoutheast corner of a tract of land deeded to Granville W. x, 'nder and wife, Billie J. Alexander as recorded in Volume h\ WIRE FENCE. Page 147 of said Deed Records of Tarrant County, Texas, p PASSING AT 00.58• 1/2 Inch iron rad also being in the west right—of—way line M A FND 5/8 -IR Revenwood Drive, from which a 1/2 inch iron rod found for the Beast corner of said tract of land deeded to Granville W. inder and wife, Billie J. Alexander bears North 01 degrees 35 tes 29 seconds West, a distance of 199.56 feet; 7CE South 17 degrees 26 minutes 03 seconds East, with the east line of said 2.343 acre tract of land and with the said west right—of—way line of Ravenwoad Drive, in Z ` distance of 104.51 to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for corner; 0 ICE South 06 degrees 53 minutes 16 seconds West with the La IPP east line of said 2.343 acre tract of land and with the p west right—of—way he of said Ravenwoad Drive, a (,+ L, distance of 225.80 feet to 0 5/8 inch iron rod with cap stomped "GORRONDONA'• set for the southeast corner of said 2.343 acre tract of land, sad 5/8 inch iron rod m with cop stamped "GORRONDONA" being Knox Road; to �� 2•343cE South 90 degrees 00 minutes 00 seconds West, with the ///��x PAMELA south line of said 2.343 acre tract of land and with � m� VOLUME 131 Knax Road, a distance of 300.00 feet to a Survey Nail mal 55 m D.R. with washer stamped "GORRONOONA" set for the southwest corner of said 2.343 acre tract of land; WOODEN FENCE x x — x — x iET SURVEY NAIL WITH WASHER STAMPED "GORRONDONA X North 00 degrees 45 minutes 13 seconds West, with the west line of said 2.343 acre boat of land, a distance of 324.00 feel to a 5/8 inch iron rod with cop stamped "GORRONOONA" set for the northwest corner of sold 2.343 care tract of land, said 5/8 inch iron rod with cop stamped "GORRONDONA" being the southwest corner of said tract of land deeded to Granville W. Alexander and wife, Billie J. Alexander; North 90 degrees 00 minutes 00 seconds East (Reference Bearing), with the north line of said 2.343 acre tract of land and with the south line of said tract of land deeded to Granville W. Alexander and wife, Billie J. Alexander, passing at a distance of 00.58 feet a 5/8 Inch iron rod found far reference, in all, a distance of 300.00 feet to the POINT OF BEGINNING and containing 102,056 square feet or 2.343 acres of land, more or ass. BOUNDARY SURVEY OF A VOLMe 2;343 ACRE TRACT OF LAND D. R, OUT OF THE RNES SURVEY, ABSTRACT NO. 142 CITY OF KELLER TARRANT COUNTY, TEXAS MONDONA & ASSOCIATES, INC. 6707 BRENTWOOD STAIR ROAD SUITE 50 FORT WORTH, TEXAS 76112 PHONE (817)406-1424 FAX (817)496-1768 0007-1209 ( DATE: JULY 2B, 2000 1 SCALE: 1` = 60 EXHIBI ■ "All SET 5/8'IR WITH CAP STAMPED "GORRONQONA" -� GRANVILLE W. ALEXANDER AND N 01'35'29 WIFE, BILLIE J. ALEXANDER 199.56' VOLUME 8671, PAGE 147 D.R. T. C. T. (REFERENCE BEARING) N 90'00'00"E 300.00' WIRE FENCE PASSING AT 00.58- A FNO 5/8"IR w IPm ml rrn rmi z M rnn .2.343 ACRES PAMELA S. KOOP VOLUME 13709, PACE 282 D. R. T. C. T. SPP FND 1/2"IR P.0 -B NO 1 /"IR Y 1 GRAVEL..': Ln ROAD ' O � ' x • � O ., L— x x x us" WIRE FENCE SET 5/8"IR WITH CAP STAMPED "GORRONDONA" ' l"711 i ` J 0 QQ N OHE OtiE • TELEPHONE RISER PSP fV = ? w o a� O _ TELEPHONE WOODEN FENCE PP .RISER ASPHALT j� r / } PAVING T] 1 tl iJ 1 �, x x x x 5x 9000x00"VY x x x x3 SET SURVEY NAIL WITH WASHER WIRE FENCE STAMPED "GORRONDONA RAY P. LfINSFORD VOLUME 12377, PAGE 124 D. R. T. C, T. GAS METER --- x- x x -SET 5/8 -IR WITH CAP STAMPED -GORRONDONA'- SURVEYOR'S GORRONDONA" SURVEYOR'S CERTIFICATE 0 30 60 120 SCALE IN FEET THAT 1, JIM G. GLASS, REGISTERED PROFESSIONAL LAND SURVEYOR NO. 5262, LICENSED IN THE STATE OF TEXAS, 00 HEREBY CERTIFY THAT THIS PLAT IS TRUE AND CORRECT AND WAS PREPARED FROM AN ACTUAL SURVEY ON -THE -GROUND UNDER MY SUPERVI5iON. DATE: JULY 28, 2000 JIM G. S REGiST PROFESSIONAL !AND SURVEYOR �NO5262�� Exhibit A City of Feller and City of Westlake Interlocal Agreement Description of Property Being o 2.343 acre tract of fond situated in . the A. Barnes Survey, Abstract No. 142, City of Keller, Tarrant County, Texas, said 2.343 acre tract of land being deeded to Pamela S: Koop as recorded in Volume 13709, Page 282 of the Deed Records of Terront County, Texas. said 2.343 acre trod of land being more particularly described by metes and bounds and follows: BEGINNING at a 1/2 inch iron rod found for the northeast corner of said 2.343 acre tract of land, said 1/2 inch iron rod being the southeast corner of a tract of land deeded to Granville W. Alexander and wife, Billie J. Alexander as recorded in Volume 8571, Page 147 of said Deed Records of Tarrant County, Texas. said 1/2 inch iron rod also being in the west right-of-woy Sine of .Rovenwood Drive, from which a 1/2 inch iron rad found for the northeast corner of said tract of land deeded to Granville W. Alexander and wife, Billie J. Alexander bears North 01 degrees 35 minutes 29 seconds West, a distance of 199.56 feet; THENCE South 17 degrees 26 minutes 03 seconds East, with the east Sine of said 2.343 acre tract of land and with the said west right-of-way line of Rovenwood Drive, a distance of 104.61 to a 5/8 inch iron rad with cap stamped "GORRONOONA" set for corner; THENCE South 06 degrees 53 minutes 16 seconds West, with the east line of said 2.343 acre tract of lend and with the west right-of-way line of said Rovenwood Drive, a distance of 225.80 feet to a 5/8 inch iron rod with cop stamped 'GORRONDONA" set for the southeast corner of said 2.343 acre tract of land, said 5/8 inch iron rod with cap stomped "GORRONCONA" being in Knox Road; THENCE South 90 degrees 00 minutes 00 seconds West, with the South fine of said 2.343 acre tract of land and with Knox Road, a distance of 300.00 feet to a Survey Nail with washer stamped "GORRONDONA" set for the southwest corner of said 2.343 acre tract of land; THENCE North 00 degrees 45 minutes 13 seconds West, with the west line of said 2.343 acre tract of land, a distance of 324.00 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the northwest corner of said 2.343 acre tract of land, sold 5/8 inch iron rod with cap stomped "GORRONDONA" being the southwest corner of said tract of fond deeded to Granville W. Alexander and wife. Billie J. Alexander; THENCE North 90 degrees 00 minutes DO seconds East (Reference Bearing), with the north line of said 2.343 acre tract of iond and with the south line of said tract of land deeded to Granville W. Alexander and wife, Billie J. Alexander, passing al a distance of 00.58 feet ❑ 5/8 inch iron rad found for reference, in all, a distance of 300.00 feet to the POINT OF BEGINNING and containing 102,056 square feet or 2.343 acres of land, more or less. EXHIBIT "A" `n GRAVE'{_ O ROAD U7 GAS° METER ASPHALT PAVING I --- x- x x -SET 5/8 -IR WITH CAP STAMPED -GORRONDONA'- SURVEYOR'S GORRONDONA" SURVEYOR'S CERTIFICATE 0 30 60 120 SCALE IN FEET THAT 1, JIM G. GLASS, REGISTERED PROFESSIONAL LAND SURVEYOR NO. 5262, LICENSED IN THE STATE OF TEXAS, 00 HEREBY CERTIFY THAT THIS PLAT IS TRUE AND CORRECT AND WAS PREPARED FROM AN ACTUAL SURVEY ON -THE -GROUND UNDER MY SUPERVI5iON. DATE: JULY 28, 2000 JIM G. S REGiST PROFESSIONAL !AND SURVEYOR �NO5262�� Exhibit A City of Feller and City of Westlake Interlocal Agreement Description of Property Being o 2.343 acre tract of fond situated in . the A. Barnes Survey, Abstract No. 142, City of Keller, Tarrant County, Texas, said 2.343 acre tract of land being deeded to Pamela S: Koop as recorded in Volume 13709, Page 282 of the Deed Records of Terront County, Texas. said 2.343 acre trod of land being more particularly described by metes and bounds and follows: BEGINNING at a 1/2 inch iron rod found for the northeast corner of said 2.343 acre tract of land, said 1/2 inch iron rod being the southeast corner of a tract of land deeded to Granville W. Alexander and wife, Billie J. Alexander as recorded in Volume 8571, Page 147 of said Deed Records of Tarrant County, Texas. said 1/2 inch iron rod also being in the west right-of-woy Sine of .Rovenwood Drive, from which a 1/2 inch iron rad found for the northeast corner of said tract of land deeded to Granville W. Alexander and wife, Billie J. Alexander bears North 01 degrees 35 minutes 29 seconds West, a distance of 199.56 feet; THENCE South 17 degrees 26 minutes 03 seconds East, with the east Sine of said 2.343 acre tract of land and with the said west right-of-way line of Rovenwood Drive, a distance of 104.61 to a 5/8 inch iron rad with cap stamped "GORRONOONA" set for corner; THENCE South 06 degrees 53 minutes 16 seconds West, with the east line of said 2.343 acre tract of lend and with the west right-of-way line of said Rovenwood Drive, a distance of 225.80 feet to a 5/8 inch iron rod with cop stamped 'GORRONDONA" set for the southeast corner of said 2.343 acre tract of land, said 5/8 inch iron rod with cap stomped "GORRONCONA" being in Knox Road; THENCE South 90 degrees 00 minutes 00 seconds West, with the South fine of said 2.343 acre tract of land and with Knox Road, a distance of 300.00 feet to a Survey Nail with washer stamped "GORRONDONA" set for the southwest corner of said 2.343 acre tract of land; THENCE North 00 degrees 45 minutes 13 seconds West, with the west line of said 2.343 acre tract of land, a distance of 324.00 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the northwest corner of said 2.343 acre tract of land, sold 5/8 inch iron rod with cap stomped "GORRONDONA" being the southwest corner of said tract of fond deeded to Granville W. Alexander and wife. Billie J. Alexander; THENCE North 90 degrees 00 minutes DO seconds East (Reference Bearing), with the north line of said 2.343 acre tract of iond and with the south line of said tract of land deeded to Granville W. Alexander and wife, Billie J. Alexander, passing al a distance of 00.58 feet ❑ 5/8 inch iron rad found for reference, in all, a distance of 300.00 feet to the POINT OF BEGINNING and containing 102,056 square feet or 2.343 acres of land, more or less. EXHIBIT "A"