HomeMy WebLinkAboutResolution - 2007-R0409 - Right Of Way Easement - Texas A&M System - 09_13_2007Resolution No. 2007-RO409
September 1.3, 2007
Item No. 5.6
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Right -of -Way Easement
between the City of Lubbock, and the Texas A&M University System, and any other
related documents. Said Right -of -Way Easement is attached hereto and incorporated in
this Resolution as if fully set forth herein and shall be included in the minutes of the
Council.
Passed by the City Council this 13th day of September , 2007.
DAVID A. rILLER, MAYOR
ATTEST:
cp" -t---r'
Rebecca Garza, City Secre
APPROVED AS TO CONTENT:
Deputy City Manager/Water Utilities Director
Dave Booher
Right -of -Way Agent
APPROVED AS TO FORM:
Linda L. Chamales, Senior Attorney
Office Practice Section
mllccdocs/TAM US-RO WEasement-res
September 6, 2007
ICE AND FARR 11 TO
UMN
Resolution No. 2007-RO409
RIGHT-OF-WAY EASEMENT
(FOR TAMUS BENEFIT)
TAMUS Board Policy 41.05(8)
1. Grant of Easement: The BOARD OF REGENTS OF THE TEXAS A&M
UNIVERSITY SYSTEM (hereafter "TAMUS"), GRANTOR, on behalf of the State of Texas,
acting by and through its duly authorized officer, under authority of Board Policy 41.05(8), on
behalf of the State of Texas, by virtue of authority granted to the Board by TEX. EDUC. CODE
ANN. §85.26(c) (Vernon 2002), GRANTS, BARGAINS, SELLS AND CONVEYS to the CITY
OF LUBBOCK (hereafter "LUBBOCK"), as GRANTEE, its successors and assigns, a non-
exclusive underground water and sewer right-of-way easement across certain property of
TAMUS (the "Property"), located in Lubbock County, Texas, more particularly described in
Exhibit "A", attached and made part of this Easement.
2. Purpose and Location of Easement: This Easement is granted for the purpose of
constructing, operating, and maintaining an eight (8) inch water line, a sixteen (16) inch water
line, a six (6) inch force main line and a twenty four (24) inch sewer line. A plat and an aerial
photograph of the Property showing the area affected by this Easement and the location of
LUBBOCK's right-of-way is depicted on Exhibits "B" and "C", attached and made a part of this
Easement.
3. Riaht of Access: LUBBOCK has the right of ingress and egress across the
Property for the purpose of constructing, operating, maintaining, repairing, replacing, and
rebuilding its facilities. LUBBOCK agrees to occupy the surface only to the extent and for the
length of time necessary for constructing, operating, maintaining, repairing, replacing, and
rebuilding such facilities. Any gate or opening used by LUBBOCK for ingress or egress in the
exercise of its rights must be kept in proper condition and closed at all times.
4. Duties: If LUBBOCK damages or destroys any fences, roads, bridges, culverts,
buildings, or other equipment on the right-of-way, other than its own property, LUBBOCK must,
within a reasonable period of time, repair or replace the property to the extent it will, as nearly as
practicable, be in like condition as before such damage or destruction. In lieu of requiring the
repair or replacement, TAMUS may, at its option, require that LUBBOCK pay money damages,
including without limitation to, those damages incurred to fences, roads, bridges, culverts,
buildings or other equipment as a result of LUBBOCK or its agents or employees entering,
departing, or by reason of being present on the Property. The Property affected will be leveled as
required by TAMUS so the Property will, to the degree possible, be in the same general condition
as before LUBBOCK's activities. LUBBOCK agrees to notify TAMUS, in the manner set forth
in Section 19, no later than three (3) business days after completion of initial construction, and
cooperate with TAMUS personnel in an on site inspection to assess damages resulting from
LUBBOCK's activities. Prior to any subsequent alteration or additional construction
LUBBOCK agrees to notify TAMUS, in the same manner as set forth in this paragraph, five (5)
business days prior to commencement of such activities.
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City of Lubbock
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5. No Fee Interest Granted: This is a grant of right-of-way easement only and does not
grant any fee interest to the surface or any interest in the minerals, on or under the Property. This
conveyance is made subject to any and all outstanding casements and surface leases covering the
Property.
6. Duration of Easement: In accordance with the TEX. EDUC. CODE ANN.
§85.26(c) (Vernon 2002), this grant is for a term of ten (10) years and may be renewed only at the
election of TAMUS. LUBBOCK expressly understands its continued possession of the Property
under this easement without first obtaining from the Board of Regents a renewal of this right-of-way
easement is a violation of state law which subjects LUBBOCK to a penalty of ONE HUNDRED
DOLLARS (5100.00) for each day of such violation. LUBBOCK agrees to pay TAMUS such
penalty within ten (10) business days after receipt of notice from TAMUS sent in compliance with
Section 19, of this Easement. LUBBOCK has the right to remove its equipment at the expiration of
this Easement, provided all obligations to TAMUS under this Easement are fully satisfied. All
equipment must be removed within one hundred twenty (120) calendar days from the date of
termination or abandonment of this Easement. If removal causes other injury to the surface or
improvements, LUBBOCK will restore or pay for such damage within sixty (60) calendar days after
completion of such removal.
7. Reservation of Non -Conflicting Use of Property: TAMUS expressly reserves for
its use and for the use of any member of The Texas A&M University System access to the Property,
such use to be in common with LUBBOCK, provided such use is not inconsistent with
LUBBOCK's rights.
It is further agreed LUBBOCK will comply with the Antiquities Code of Texas, TEX. NAT.
RES. CODE ANN. § 191 (Vernon 2002), and LUBBOCK further agrees title to archaeological
objects or artifacts, if any, in or on the Property remain with TAMUS.
8. Hold Harmless: LUBBOCK AND TAMUS, TO THE EXTENT ALLOWED BY
THE CONSTITUTION AND LAWS OF THE STATE OF TEXAS, EACH AGREE TO
HOLD THE OTHER HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS,
LIABILITIES AND CAUSES OF ACTION FOR PERSONAL INJURY OR DEATH AND/OR
DAMAGE TO OR DESTRUCTION OF PROPERTY OR IMPROVEMENTS CAUSED BY,
ARISING OUT OF, OR RESULTING FROM THE EXERCISE OF EACH PARTIES
RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT.
9. Hazardous Waste: LUBBOCK will not commit, or suffer to be committed, waste
upon the Property. LUBBOCK will also keep the water lines and sewer lines described in
paragraphs 2 above in good working order and repair and in a clean, safe, and healthful condition and
comply with all state, federal, and local laws, rules, and regulations with regard to the use and
condition of the improvements and equipment on the Property.
LUBBOCK will not use the Property or permit the Property to be used so as to cause, suffer,
Prepared by Assistant General Counsel
City of Lubbock
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or allow any contamination of soils, ground water, surface water, or natural resources on or adjacent
to the Property resulting from, but not limited to, spills or leaks of oil, gasoline, hazardous materials,
hazardous wastes, or other chemical compounds. LUBBOCK is solely responsible for cleanup of
any contamination resulting from LUBBOCK's use of the Property.
To the extent allowed by the Constitution and laws of the State of Texas, if the presence of
hazardous materials on the Property is caused or permitted by LUBBOCK and such materials result
in contamination of the Property or if contamination of the Property by hazardous material otherwise
occurs and is related to LUBBOCK's use, then LUBBOCK shall indemnify, defend and hold
TAMUS harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities, or
losses (including diminution in value of the Property, damages for the loss of or restriction on use of
the Property or of any amenity of the Property, and sums paid in settlement of claims, attorneys' fees,
consultants' fees, and experts fees) which arise during or after the Easement term as a result of such
contamination. This indemnification of TAMUS by LUBBOCK includes costs incurred in
connection with any investigation of site conditions for any cleanup, remedial, removal or restoration
work required by any federal, state, or local governmental agency or political subdivision because of
hazardous material present in the soil or ground water on or under the Property.
10. Default and Termination: It is agreed that upon default by LUBBOCK of any of
these covenants, conditions, and agreements, TAMUS has the right, and such right is expressly
reserved, to declare this Easement forfeited, without prejudice to any claim TAMUS may have
against LUBBOCK; provided, however, TAMUS will give LUBBOCK written notice of its
intention to terminate this Easement and the reasons for termination, and LUBBOCK will have
thirty (30) calendar days after receipt of notice to rectify the default or violation. Upon timely
correction, this Easement will remain in full force and effect. Termination or abandonment of this
Easement for any cause is automatic and all rights granted revert to TAMUS without the necessity of
any further action or suit on the part of TAMUS. Upon termination or abandonment, LUBBOCK
agrees to file a release of Easement in the Deed Records of Lubbock County, Texas. Abandonment
will be deemed to have occurred when this Easement is not used for the purposes granted for a
continuous period of one calendar year.
11. Waiver: No waiver by TAMUS or LUBBOCK of any default or breach of any
term, condition, or covenant of this Easement will be a waiver of any other breach of any other term,
condition, or covenant.
12. Privileges and Immunities: LUBBOCK acknowledges TAMUS is an agency of the
State of Texas, and TAMUS acknowledges that LUBBOCK is a municipality of the State of Texas,
and nothing in this Easement will be construed as a waiver or relinquishment by TAMUS or
LUBBOCK of their right to claim exemptions, privileges, and immunities as may be provided by
law.
13. Governing Law and Venue: The validity of this Agreement and all matters
pertaining to this Agreement, including but not limited to, matters of performance, nonperformance,
3
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breach, remedies, procedures, rights, duties, and interpretation or construction, shall be governed and
determined by the Constitution and the laws of the State of Texas. This Agreement is performable in
Lubbock County, Texas. Pursuant to Section 85.18, Texas Education Code, venue for any suit filed
against TAMUS shall be in the county in which the primary- office of the chief executive officer of
TAMUS is located.
14. Grammatical Interpretation: When the singular number is used, it also includes the
plural, and the masculine gender includes the feminine and neuter gender.
15. Headings: Headings are for reference and will not be construed to limit or alter the
meaning of the provisions of this Easement.
16. Parties Bound: This Easement is binding upon and inures to the benefit of the
parties and their respective heirs, executors, administrators, legal representatives, successors in
interest or office, and assigns. This Section, however, does not constitute permission for an
assignment. Each party warrants that the person executing this Easement on its behalf has full
authority to do so and to bind that party to the terms and conditions of this Easement.
17. Savine Clause: Should any clause in this Easement be found invalid by a court of
law, the remainder of this Easement will not be affected and all other provisions in this Easement
remain valid and enforceable to the fullest extent permitted by law.
18. Assignment: LUBBOCK may not sell, assign, encumber, or convey this Easement
without the written consent of TAMUS, and any attempt by LUBBOCK to sell, assign, encumber,
or convey this Easement without such consent will cause this Easement to terminate.
19. Notices Any notice required or permitted under this Agreement must be in writing,
and shall be deemed to be delivered (whether actually received or not) when deposited with the
United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed
to the intended recipient at the address set out below. Notice may also be given by regular mail,
personal delivery, courier delivery, facsimile transmission, email or other commercially reasonably
means and will be effective when actually received. TAMUS and LUBBOCK can change their
respective notice address by sending to the other party a notice of the new address. Notices should
be addressed as follows:
If to "TAMUS": Associate Vice Chancellor for Real Estate
A&M System Building, Suite 1281
System Real Estate Office
200 Technology Way
College Station, Texas 77845-3424
4 Prepared by Assistant General Counsel
city or Lubbock
Legal Files 2007-0015012
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OFFICIAL DOCUMENT 1OFT
If to "LUBBOCK":
with a copy to
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457
Attn: Mayor
City Right -of -Way Agent
P.O. Box 2000
Lubbock, Texas 79457
20. Entire Agreement: This Easement constitutes the entire agreement between
TAMUS and LUBBOCK and will not be explained, modified, or contradicted by any prior or
contemporaneous negotiations, representations, or agreements, either written or oral. This Easement
may only be amended by a subsequent written instrument signed by TAMUS and LUBBOCK or
their permitted successors or assigns.
21. Effective Date: This Easement is deemed to be in force on the -.:2�1 7—It-day of
, 2007.
"TAMUS"
BOARD OF REGENTS OF
THE TEXAS A&M UNIVERSITY YSTEM
By:
MICHAEL D. MCKINNEY, M.D.
Chancellor
The Texas A&M University System
RECOMMEND APPROVAL:
JAY KIMPROUGH/
Deputy Cliancellor apfd General Counsel
DAN K. VCHLY
Associate ice Chancellor for eal Estate
System R al Estate Office
The Texas A&M University System
5
j-#- Svstem Real Estate Office
Off]CIAL DOCUMENT
Prepared by Assistant General Counsel
City of Lubbock
Legal Files 2007-0015012
7f10/07-EDG
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EDDIE D. GOSE, J.D.
Assistant General Counsel
Office of General Counsel
The Texas A&M University System
ACKNOWLEDGEMENT
STATE OF TEXAS §
COUNTY OF BRAZOS §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared MICHAEL D. MCKINNEY, M.D., Chancellor of The Texas A&M
University System, known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he executed it as the act and deed of the Board of Regents
of The Texas A&M University System, for the purposes and consideration expressed and in the
capacity stated.
GIVEN JJNDER MY HAND
2007.
"Lif -
E,MAWRM
Y JAILNotary puft ft" dvr
NOVEMOR1r
(jK {
Svstem Real Estate Office
M OFFICIAL DOCUENT
AND SEAL OF OFFICE this 91�1 ff� day of
Not State of Texas
My Commission Expires: / �%
Prepared by Assistant General Counsel
City of Lubbock
Legal Files 2007-OGI 5012
9110107-EDG
TERMS AND CONDITIONS EXPRESSLY ACKNOWLEDGED AND ACCEPTED:
"LUBBOCK"
CITY OF LUBBOCK
y
DAVID A. LLER
Mayor
ATTEST: Tj v -
REB CCA GARZA
City4pretary
APPROVED AS TO CONTENT:
THOMAS ADAMS
Deputy City Manager/
Water Utilities Director
.21-r z7l�
DAVE BOOHER
Right of Way Agent
APPROVED AS TO FORM:
LINDA L. CHAMALES
Senior Attorney
Office Practice Section
rSystem Real Estate Office
OFFICIAL DOCUMENT
Prepared by Assistant General CourW
City otLuhock
Legal Files 2007-0015012
9110107-E )G
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF LUBBOCK §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared DAVID A. MILLER, Mayor of the City of Lubbock, known to me to
be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed it for the purposes and consideration expressed and in the capacity stated.
ili"JEN UNDER MY HAND AND SEAL OF OFFICE this ! 3JA day of
:k)1-'6e - , 2007.
�.Q.C.CICJ
Nota ublic, State of Texas
Mir Commission Expires: 0 3-e)/ - ;-61 b
Prepared by Assistant General Counsel
City of Lubbock
Legal Files 2007-0015012
9I 10l07-EDG
System Real Estate Otrce
OFFICIAI, DOCUMENT
Exhibit
71- SMITH SURVEYING
Resolution No. 2007—RO409
Robe: t L. Smith
6310 Genoa Ave., Ste. A Lubbock, Texas 79424
Phone & Fax:806-765-9543
Email: smithsurveyingCauts-online.net
40 FOOT EASEMENT DESCRIPTION
IN SECTION 36, BLOCK A,
LUBBOCK COUNTY, TEXAS
METES AND BOUNDS DESCRIPTION OF A 40 FOOT WIDE EA.SEMENN-I dN SECTION 36, BLOCK A, LUBBOCK COUNTI', TEXAS BEING
A PORTION OF THOSE TRACTS DESCRIBED IN VOLUME 772 PAGE 417, VOLUME 772 PAGE 431, VOLUME 779 PAGE 275, AND
VOLUME 892 PAGE 255 OF THE DEED RECORDS OF LUBBOCK COUNTY, TEXAS AND FURTHER DESCRIBED AS FOLLOWS:
BEGINNING AT A 3/8" IRON ROD FOUND IN THF. NORTH. LINE OF THE SOUTH HALF OF SAID SECTION 36 AT THE SOUTI-PMT
CORNER OF THAT 1.67 ACRE TRACT DESCRIBED IN VOLUME 892 PAGE 255 OF SAID RECORDS FOR THE MOST SOUTHERLY
SOUTHWEST CORNER OF THIS TRACT FROM WHENCE AN OLD AUTO AXLE FOUND AT THE SOUTHEAST CORNET: OF THE
NORTHWEST QUARTER OF SAID SECTION 36 BEARS S 86°35'53" E A DISTANCE OF 1990.08 FEET;
THENCE N 1 °25'00" E, ALONG THE WEST LINE OF SAID 1.67 ACRE TRACT, A DISTANCE OF 639.90 FEET TO A ''/:" IRON ROD WITH
CAP FOUND AT THE NORTHWEST CORNER OF SAID 1,67 ACRE TRACT FOR AN ELL CORNER OF THIS TRACT;
THENCE N 88°36'49" W, ALONG THE NORTH LINE OF THAT 6.06 ACRE TRACT DESCRIBED IN VOLUME 10094 PAGE 83 OF THE
OFFICIAL PUBLIC RECORDS OF LUBBOCK COUNTY, TEXAS, A DISTANCE OF 399.99 FEET TO A CORNER OF THAT 10 FOOT
EASEMENT DESCRIBED IN VOLUME 7207 PACE 72 OF THE REAL PROPERTY RECORDS OF LUBBOCK COUNTY, TEXAS FOR A
CORNER OF THIS TRACT FROM WHENCE A 3/8" IRON ROD FOUND AT TFIE NORTHWEST CORNER OF SAID 6.06 ACRE 7RACT
SEARS N 88036'49" W A DISTANCE OF 9.88 FEET;
THENCE N 1023'52" E, ALONG THE EAST LINE OF SAID 10 FOOT EASEMENT, A DISTANCE OF 2.97 FEET TO THE BEGINNING OF A
CURVE TO THE RIGHT HAVING A RADIUS OF 1387.69 FEET FROM WHENCE A 319" IRON ROD FOUND AT A WEST CORNER OF SAID
EASEMENT BEARS N 88044'24" W A DISTANCE OF 10.00 FEET;
THENCE NORTHEASTERLY, ALONG SAND EASEMENT LINE AND SAID CURVE HAVING A CHORD BEARING OF N 8`00'55" E, A
CHORD DISTANCE OF 319.86 FEET TO A CORNER OF SAID EASEMENT;
THENCE N 14"37'55" E, ALONG SAID EASEMENT LINE, A DISTANCE OF 354.25 FEET TO THE BEGINNING OF A CURVE TO THE LEFT
HAVING A RADIUS OF 1920.08 FEET;
THENCE NORTHERLY, ALONG SAID EASEMENT LINE AND SAID CURVE HAVING A CHORD BEARING OF N 1°22'55" E, A CHORD
DISTANCE OF 880.32 FEET TO A COR1lER OF SAID EASEMENT;
THENCE N 11 °52'05" W, ALONG SAID EASEMENT LINE, A DISTANCE OF 342.52 FEET TO A CORNER OF SAID EASEMENT;
THENCE N 39041'25" E. ALONG SAID EASEMENT LINE, A DISTANCE OF 52.51 FEET TO A CORNER OF SAID EASEMENT FROM
WHENCE A 318" IRON ROD FOUND AT A 1ORTHWEST CORNER OF SAID EASEMENT BEARS N 24027'3T' W A DISTANCE OF 11.11
FEET;
THENCE S 88°35'42" E, ALONG THE SOUTH LINE OF SAID EASEMENT, A DISTANCE OF 2676.69 FEET TO AN ELL CORNER OF SAID
EASEMENT FOR A CORNER OF THIS EASEMENT FROM WHENCE A 3/8" IRON ROD FOUND AT THE NORTHEAST CORNER OF SAID
10 FEET EASEMENT BEARS N 46050'03" E A DISTANCE OF 14.25 FEET;
THENCE S 2°15.48" W, ALONG A WEST" LINE OF SAID EASEMENT, A DISTANCE OF 40.01 FEET TO A CORNER OF THIS EASEMENT;
THENCE N 88"35'42" W A DISTANCE OF 2656,70 FEET TO A CORNER OF THIS EASEMENT;
THENCE S 39'41'25" W A DISTANCE OF 13.81 FEET TO A CORNER OF THIS EASEMENT;
THENCE S 11'52'05" E A DISTANCE OF 323.20 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1960.09
FEET;
/
j.. System Real Estate Office
-� OFfFICIfAL DQCUAIENT
PAGE I OF 2
THENCT SOUTFIERLY, ALONG SAID CURVE HAYING A CHORD fRE4,RI Vtr OF S T °22'55" W, A CHORIL' DISTANCE OF 998.65 FEET TO
A CORNER OF THIS EAS.EMETI'I':
THENCE S 14037'55" 4V A DISTANCE OF 354.25 FEET TO TIM BEt INNN:N i OFF A CU:I.VE TO T;113 LEFT HAVIIV:' A RADIUS OP 1347.69
FEET;
THENCE 3OLrFHWiSTERLY, ALONG SAID CURVE HAVINO A CHORD HEARING OF S 9-48-16- W, A CHORD DISTANCE OF 273.71
FEEL TO A CORNER OF THM EAE-13% i-2�'T;
TitNL'F S SS036'44" F, Ak..EUNG A LINE 40.00 FEET NORTH Or ,iND PARALLEL TO T IM NORT i LINE OF SAID 6.36 ACRE TRACI', A
DISTANCE OF 30.49 F ET iTO A CORNER OF THIS TRACT;
THENCE S 1"25'W W, ALONG A LINE 40.00 FEET EAST OF AND PARALLEL TO, TM WEST LINE OF SAnD 1.67 ACR£ TRA(7r, A
DISTANCE OF 699.91 FEET TO A POIN T' IN THE NORTH LINE OF THE SOUTH HALF OF SAID SECTION 36 FOR A CORNER Or, TEAS
TRACT;
THENCE N 88°35'53" W, ALONG SAID NORTH LINE A DISTANCE OF 40.00 FEET TO THE PLATE OF REGReMG.
I, ROBERT L SMTf iI, REGISTERED PROFESSIONAL LAND SURVEYOR, DO HEREBY CERTIFY THAT THIS DESCRIPT[OTI WAS
PREPARED FROM AN ACTUAL SURVEY OF THE PROPERTY AND TRAT THE WFORMAT 0H REREON REPRESENTS THE FINDINGS
OF THIS SURVEY TO THE HEST OF MY KNOWLEDGE AND BELIEF.
SI.FRV't-`,YEP:
RAVE 26, 2007
ROR -�.T L SMITH
RP.L.I3. 39%
SURVEYOR'S REPORT:
OF
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ZIEN.., S U il`Ir
MS SURVEY IS SUIUE- C TO ANY FACI3 THAT MAY BE DISICT.OSED DY A FULL. AND ACCURATE TITLE SEARCH.
FOUND IvIONUMEI4 M ARE ACCEPTED BY THIS SURVEYOR AS CONTROLLING EVIDENCE DUE TO SUBSTANTIAL AGREDAENT
WITH RECORD DOCUIaIOV'I'S.
BEARINGS RELATIVE TO GRID NORTH OF THE TEXAS COORDINATE 3YST-EM NORTH CENTRAL ZONE NAD 93 DATUM.
DISTANCES ARE SURFACE. L.S. SURVEY FEET.
07-0601
lr�
System Real Estate Office
OFFICIAL DOCUMENT
. z _ PAGE 2 OF 2
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