HomeMy WebLinkAboutRESOLUTION NO. 2016-49RESOLUTION NO. 2016-49
RESOLUTION APPROVING AN EASEMENT PURCHASE AGREEMENT
BETWEEN THE CITY OF FAIRFAX AND
WILLIAM E. BOLAND, JR. AND VERNA BOLAND
FOR VACANT GROUND LOCATED
NORTHERLY OF 100 W. CEMETERY ROAD
WHEREAS, City staff has negotiated an Easement Purchase Agreement (the
"Agreement') with William E. Boland, JR. and Verna Boland, husband and wife, for certain
vacant land located northerly of 100 W. Cemetery Road (Tax Identification Numbers
200927600100000 and 200920100100000) for $1,431.00 and other valuable consideration
contingent on Council approval;
WHEREAS, the City intends on using the property for purpose of installation and
maintenance of a sanitary sewer main line improvement; and
WHEREAS, the Agreement should be approved.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAIRFAX,
IOWA, THAT:
The Agreement, attached hereto and incorporated herein by reference, is approved.
2. Crop Damage Agreement for 2017 and 2018, attached hereto and incorporated herein by
reference, is approved.
3. The Mayor is authorized to execute all documents necessary to acquire said property in
accordance with the Agreement.
Passed and approved this 31St day of May, 2016.
Council Member Beer moved the adoption of the Resolution; seconded by Council Member Kell.
AYES: Beer, Daly, Kell, Volk, and Wainwright
NAYS: None
Marianne Wainwright, Mayor ro Tempore
ATTEST:
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Cy hia Stimson, City Clerk/Treasurer
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Prepared by and Matthew J. Hektoen, Simmons Perrine Moyer Bergman PLC
Return to: 115 3rd Street SF,, Suite 1200, Cedar Rapids, Iowa 52401 (319) 366-7641
Sanitary Sewer Easement Agreement
et
This Sanitary Sewer Easement Agreement ("Agreement") is made this �1'day of
2016, by and between William E. Boland, Jr. and Verna Boland, husband and wife
("Granto & and the City of Fairfax, Iowa, a municipal corporation ("Grantee").
WHEREAS, the Grantor is the fee simple title holder of the real property described as
follows:
PART OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER
OF SECTION 9, TOWNSHIP 82 NORTH, RANGE 8 WEST OF THE 5TH
PRINCIPAL MERIDIAN, LINN COUNTY, IOWA DESCRIBED AS
FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHEAST
QUARTER OF SAID NORTHWEST QUARTER; THENCE S88°18'24"W 46.93
FEET ALONG THE SOUTH LINE OF THE NORTHEAST QUARTER OF
SAID NORTHWEST QUARTER TO THE POINT OF BEGINNING; THENCE
CONTINUING S88018'24"W 128.74 FEET ALONG SAID SOUTH LINE TO
THE APPROXIMATE CENTERLINE OF AN UNNAMED CREEK; THE
FOLLOWING 26 COURSES RUN ALONG THE APPROXIMATE
CENTERLINE OF AN UNNAMED CREEK; THENCE N20°35'51"W 21.57
FEET; THENCE N38°42'28"E 28.60 FEET; THENCE N16°08'07"W 59.84 FEET;
THENCE N37057'22"W 51.12 FEET; THENCE N6°40'47"W 41.61 FEET;
THENCE N0022'11"W 40.69 FEET; THENCE N45°32'08"W 40.87 FEET;
THENCE N19047'05"W 65.23 FEET; THENCE N3°02'49"W 50.40 FEET;
THENCE N11°15'51"W 62.99 FEET; THENCE N23°00'57"W 61.20 FEET;
THENCE N39050'41"W 34.24 FEET THENCE N23035'17"W 67.25 FEET;
THENCE N8°42'55"E 43.09 FEET; THENCE N21°19'46"W 85.65 FEET;
THENCE N21 °29'20"E 22.70 FEET; THENCE N48°20' 10"W 34.34 FEET;
THENCE N18055'49"W 59.67 FEET; THENCE N25048'24"W 89.50 FEET;
THENCE N 1 °20'06"E 39.90 FEET; THENCE N24° 11'59"W 58.20 FEET;
THENCE N7°15'02"W 60.64 FEET; THENCE N15°48'30"W 65.89 FEET;
THENCE N46020'22"W 59.01 FEET; THENCE N33°51'28"W 63.02 FEET;
THENCE N6026'43"W 135.89 FEET TO THE NORTH LINE OF THE
NORTHEAST QUARTER OF SAID NORTHWEST QUARTER; THENCE
N88010'28"E 127.82 FEET ALONG SAID NORTH LINE; THENCE S17°14'59"E
369.89 FEET; THENCE S 17°36'45"E 359.84 FEET; THENCE S 18° 16'50"E 359.71
FEET; THENCE S18°28'51"E 294.32 FEET TO THE POINT OF BEGINNING.
AND
PART OF THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER
OF SECTION 9, TOWNSHIP 82 NORTH, RANGE 8 WEST OF THE 5TH
PRINCIPAL MERIDIAN, LINN COUNTY, IOWA DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF THE SOUTHEAST
QUARTER OF SAID NORTHWEST QUARTER; THENCE S2°24'16"E 583.25
FEET ALONG THE EAST LINE OF THE SOUTHEAST QUARTER OF SAID
NORTHWEST QUARTER TO THE APPROXIMATE CENTERLINE OF AN
UNNAMED CREEK; THE FOLLOWING 10 COURSES RUN ALONG THE
APPROXIMATE CENTERLINE OF AN UNNAMED CREEK; THENCE
N47013'06"W 48.29 FEET; THENCE N39°50'54"W 43.17 FEET; N1 1'30'09"W
142.86 FEET; THENCE N8°34'16"E 51.32 FEET; THENCE N8°50'48"W 78.59
FEET; THENCE N22027'13"W 66.48 FEET; THENCE N34°00'12"W 70.02 FEET;
THENCE N4° 15'45"W 47.23 FEET; THENCE N32°46'02"W 31.60 FEET;
THENCE N20035'51"W 53.47 FEET TO THE NORTH LINE OF THE
SOUTHEAST QUARTER OF SAID NORTHWEST QUARTER; THENCE
N88° 18'24"E 175.62 FEET ALONG SAID NORTH LINE TO POINT OF
BEGINNING
all as more particularly described on Exhibit "A", attached hereto and incorporated
herein by reference
(the "Property")
WHEREAS, Grantee proposes to construct and maintain a sanitary sewer line;
NOW THEREFORE, the Grantor, its heirs, successors and assigns, by this agreement
grants to the Grantee a perpetual sanitary sewer easement for the purpose of the development of a
sanitary sewer main line and appurtenances thereto, subject to the following terms and conditions:
1. Easement: Grantor hereby grants to the Grantee and the public a perpetual and
continual easement for the purpose of constructing, reconstructing, repairing and maintaining a
sanitary sewer main line and appurtenances thereto over, under and upon the Property (the
"Easement").
2. Improvements and Obstructions: The Grantor further agrees to erect no building,
obstructions or other improvements upon or under the Easement which would interfere with
construction, reconstruction or maintenance of said sewer line and appurtenances thereto without
2
1460886(2-13-14)
first obtaining written permission from the Grantee, which permission shall not be unreasonably
withheld.
3. Maintenance: The Grantee agrees to be solely responsible for any and all costs and
expenses of maintenance, repair, and upkeep whatsoever of the sewer line and appurtenances
thereto placed in the area of the Easement. Without limiting the generality of the foregoing,
Grantee shall be responsible to maintain the adjacent stream as deemed necessary by Grantee's
engineer to maintain the integrity of the sanitary sewer facilities located within the Easement.
Grantor may not alter the stream without prior written approval of Grantee, which approval shall
not be unreasonably withheld.
Grantee shall promptly repair any damage caused by Grantee on any part of the Property in
the process of constructing, reconstructing or maintaining the Easement and shall restore the
Property to its prior -existing condition.
4. Successors in Interest: This Easement shall be binding upon the parties hereto, their
heirs and beneficiaries, representatives, successors and assigns.
5. Construction of Terms: Words and phrases herein, including the acknowledgment
hereof, shall be construed as in the singular or plural number, and as masculine, feminine or neuter
gender, according to context.
GRANTOR GRANTEE
By: By
William E. Boland, Jr. Print Name:&I In e
Title: yhc� ,
By:
Verna Boland
STATE OF IOWA, COUNTY OF LIMN} ss:
This instrument was acknowledged before me this day of , 2016 by William
E. Boland, Jr. and Verna Boland, husband and wife.
Notary Public in and for said State
My Commission Expires:
1460886 (2-13-14)
STATE OF IOWA, COUNTY OF LIMN} ss:
This instrument was acknowledged before me this day of , 2016 by
, as of City of Fairfax, Iowa.
Notary Public in and for said State
My Commission Expires:
-
4
1460886(2-13-14)
EASEMENT PURCHASE AGREEMENT
THIS EASEMENT PURCHASE AGREEMENT ("Agreement") is made and
entered into as of the date last written below ("Effective Date") between William E. Boland,
Jr. and Verna Boland, husband and wife ("Seller"), and City of Fairfax, an Iowa municipal
corporation ("Buyer").
In consideration of the covenants and agreements contained herein, the parties agree
as follows:
1. PREMISES. Seller shall sell to Buyer and Buyer shall purchase from Seller
an easement for the purpose of a sanitary sewer (the "Easement") all as more particularly
described on Exhibit "A", attached hereto and incorporated herein by reference (the "Real
Estate").
The Real Estate is being conveyed free of liens and encumbrances but subject to
zoning and other ordinances, covenants of record and easements of record.
Included with the Real Estate shall be all fixtures that integrally belong to, are
specifically adapted to or are a part of the Real Estate, whether attached or detached.
Included in the Real Estate should be all of Seller's right, title and interest to any
leases, surveys, blueprints, drawings, plans and specifications, environmental studies or
reports for or with respect to the Real Estate and Seller's possession.
2. PURCHASE PRICE AND MANNER OF PAYMENT. The total purchase
price ("Purchase Price") to be paid for the Real Estate is ONE THOUSAND FOUR
HUNDRED THIRTY ONE DOLLARS AND NO/100 ($1,431.00). The Purchase Price
shall be paid in cash or certified funds at Closing.
3. CONTINGENCIES. The Buyer's obligations under this Agreement are
contingent upon the satisfaction of the following items:
A. Approval of the Acquisition Plat(s) of the Real Estate, by Buyer and the
County of Linn in sole discretion of both parties;
B. Buyer securing binding written commitments for the sale of real
property adjoining, adjacent or in near proximity to the Real Estate all for the purpose of
construction of a sanitary sewer main extension project across said adjoining real property.
The amount and extent of the adjoining, adjacent or near in proximity real property shall be
determined by Buyer in its sole and absolute discretion.
C. Approval of this Agreement by the City Council for the City of Fairfax.
Buyer's Initials:
Seller's Initials:
Promptly upon execution of this Agreement the Buyer shall, at its sole cost and
expense, proceed diligently and in good faith to satisfy the conditions set forth above and to
release such conditions or to have them satisfied on or before "Closing" (as hereinafter
defined) (" Contingency Date") except as otherwise noted below. In the event the above
contingencies have not been released or satisfied by the Contingency Date, then if it is likely
that the conditions can be satisfied within a relatively short period thereafter, the Buyer may
extend the contingency period for up to ninety (90) additional days by giving written notice
to the Seller. If Buyer does not provide Seller with a release or satisfaction of the contingencies
on or before the Contingency Date or a permitted extension, then this Agreement shall
become null and void and all earnest money shall promptly be returned to Buyer.
Upon execution of this Agreement, Seller agrees that, upon Buyer's request,
Seller will reasonably cooperate with Buyer to subdivide the Real Estate. Such cooperation
shall include, but is not limited to, signing such applications, consents or other documents
and performing such other actions as may be required by the City or other governmental
agencies. Buyer shall be solely responsible for all application fees and other costs for
compliance with the requirements of governmental agencies. Upon Buyer's request for
Seller's cooperation, Seller shall so cooperate within a commercially reasonable period of
time. If the Seller's failure to respond within such period causes delay in the Buyer obtaining
necessary approvals or consents, the contingency date and closing date may be extended for
the same period of time of the delay that was caused by Seller's failure to cooperate.
Notwithstanding any provision in this paragraph, Buyer shall not record any subdivision,
survey, zoning or other instruments or take any action that may affect the Real Estate until
the Purchase Price for the Real Estate is paid and title to the property passes to Buyer.
4. REAL ESTATE TAXES. Seller shall pay all real estate taxes that are due
and payable as of the date of Closing and constitute a lien against the Real Estate, including
any unpaid real estate taxes for any prior years. Seller shall also pay all real estate taxes that
come due in the future.
5. SPECIAL ASSESSMENTS. Seller shall pay in full at time of closing all
special assessments which are a lien on the Real Estate as of the Closing Date and any
preliminary or deficiency assessments. Any preliminary or deficiency assessment which
cannot be discharged by payment shall be paid by Seller through an escrow account with
sufficient funds to pay such liens when payable, with any unused funds returned to Seller.
Buyer shall pay all special assessments which become a lien on the Real Estate after the
Closing Date.
6. ABSTRACT AND TITLE. Seller shall obtain an abstract of title to the Real
Estate, continued through thirty (30) days of the Effective Date and deliver it to Buyer's
attorney for examination. The abstract of title shall show marketable title in Seller in
conformity with this Agreement, Iowa law, and title standards of the Iowa State Bar
Association. The abstract shall further show no covenants, restrictions or easements of
record that prevent the Buyer from installing a sanitary sewer service line. Seller shall make
every reasonable effort to promptly perfect title. If closing is delayed due to Seller's inability
to provide marketable title, this Agreement shall continue in force and effect until either
Buyer's Initials: 2
Seller's Initials:
party rescinds the Agreement after giving ten days written notice to the other party. Seller
shall pay the costs of any additional abstracting and title work due to any act or omission of
Seller. The abstract shall be obtained from an abstracter qualified by the Title Guaranty
Division of the Iowa Housing Finance Authority. Nothing in this paragraph shall relieve
Seller from the obligation to convey merchantable title to Buyer at the time of the Closing
Date. Buyer shall reimburse seller for the cost of the extension of the abstract of title.
7. POSSESSION AND CLOSING DATE. The closing on this transaction and
transfer of possession of the Real Estate shall occur June 15, 2016 ("Closing Date" or
"Closing") subject to Buyer's and Seller's full performance of their respective obligations
under this Purchase Agreement and the satisfaction of any conditions herein. Any
adjustments of taxes, interest and all charges attributable to the Seller's possession shall be
made as of the date of Closing. Closing shall be at the time and location selected by Buyer,
or at such other time and place as the Buyer and Seller may agree. This transaction shall be
considered closed upon the delivery of the title transfer documents to Buyer, and Seller's
receipt of all funds then due at closing from Buyer under this Agreement. Seller agrees to
permit Buyer to inspect the Real Estate within forty eight (48) hours prior to the Closing
Date to assure that the premises are in the condition required by this Agreement. Buyer
shall be entitled to possession at Closing.
8. RISK OF LOSS AND INSURANCE. Seller shall bear the risk of loss or
damage to the Real Estate prior to the closing. In the event of substantial damage prior to
closing, this Agreement shall be null and void unless otherwise agreed in writing by the
Buyer and Seller. The Real Estate shall be deemed substantially damaged or destroyed if it
cannot be restored to its present condition on or before the Closing Date or within thirty
(30) days after the Closing Date, in which event the closing and transfer of possession shall
be reasonably delayed, up to thirty (30) days, in order to allow completion of the repairs and
restoration. Provided, however, in the event of substantial damage or destruction that
cannot be repaired by the Closing Date or within thirty (30) days thereafter, Buyer shall
have the right to complete the closing and to have the Seller apply as much of the insurance
proceeds as are necessary to prepare and restore the Real Estate. Until the Closing Date,
Seller agrees to maintain existing insurance coverage on the Real Estate and Buyer may
purchase additional insurance.
9. ENVIRONMENTAL MATTERS. Except as provided below, Seller
warrants to the best of its knowledge and belief that there are no abandoned wells, solid
waste disposal sites, "Hazardous Materials" (as hereinafter defined) in violation of any
"Environmental Law" (as hereinafter defined), or underground storage tanks located on the
Real Estate, the Real Estate does not contain levels of radon gas that require remediation
under current governmental standards, and Seller has done nothing to contaminate the Real
Estate with Hazardous Materials. Except as provided below, Seller warrants that the Real
Estate is not subject to any local, state, or federal judicial or administrative action,
investigation or order, as the case may be, regarding wells, solid waste disposal sites,
Hazardous Materials, or underground storage tanks. Seller shall also provide Buyer with a
properly executed Groundwater Hazard Statement showing no wells, solid waste disposal
sites, Hazardous Materials and underground storage tanks on the Real Estate.
Buyer's Initials:
Seller's Initials:
The term "Environmental Law" means any federal, state or local law, statute,
ordinance, regulation or order pertaining to health, industrial hygiene, environmental
conditions or "Hazardous Materials" (as hereinafter defined), all as amended or modified
from time to time, including but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. §9601, et seq.), as amended
by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. §9601-9675)
and as further amended ("CERCLA"); the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. §6901, et seq.) ("RCRA"); the Clean Water Act, as amended
(33 U.S.C. §1251, et seq.); the Clean Air Act, as amended (42 U.S.C. §7401, et seq.); the
Federal Insecticide, Fungicide and Rodenticide Act, as amended (7 U.S.C. §136, et seq.);
the Toxic Substance and Control Act of 1976, as amended (15 U.S.C. §2601, et seq.); and
Emergency Planning and Community Right to Know Act of 1986, as may be amended from
time to time (42 U.S.C. §11001 to 11050). The term "Hazardous Material" shall mean (i)
"hazardous substances," as defined by CERCLA; (ii) "hazardous wastes," as defined by
RCRA; (iii) petroleum or petroleum products or by-products; (iv) radioactive material,
including, without limitation, any source, special nuclear, or by-product material, as defined
in 42 U.S.C. §2011 et seq.; (v) asbestos in any form or condition; (vi) polychlorinated
biphenyls; (vii) biomedical wastes; (viii) mold, mold spores, and mycotoxins, (ix)
chlorinated solvents and (ix) any other material, substance or waste regulated under any
Environmental Law as being hazardous, toxic or otherwise harmful to human health or the
environment.
10. NOTICE. Notices required, permitted, or otherwise given under this
Agreement shall be in writing and shall be deemed effective if given to the individuals
named below. Notice shall be deemed given upon receipt of personal service, or upon
mailing by first class mail, certified with restricted delivery, return receipt requested, to the
address provided below:
To Bum
City of Fairfax
Attn: Mayor Frieden
525 Vanderbilt Street
P.O. Box 337
Fairfax, Iowa 52228
With a copy to:
Simmons Perrine Moyer Bergman PLC
Attn: Matthew J. Hektoen
115 3rd Street SE, STE 1200
Cedar Rapids, Iowa 52401
To Seller:
11. BROKERAGE. Neither party has used the services of a real estate agent or
broker in connection with this transaction. Each party agrees to indemnify and save
harmless the other party from and against all claims, costs, liabilities and expense (including
Buyer's Initials: 4
Seller's Initials:
court costs and reasonable attorney's fees) incurred by the other party as a result of a breach
of this representation, which shall survive closing.
12. FORM OF CONVEYANCE. Upon payment of the Purchase Price at the
time of closing, Seller shall convey the Real Estate to Buyer by the Easement, free and clear
of all liens, restrictions, and encumbrances except as provided in this Agreement. General
warranties of the title shall extend to the time of delivery of the deed excepting liens and
encumbrances suffered or permitted by Buyer.
13. STATEMENT AS TO LIENS. If Buyer intends to assume to take subject to
a lien on the Real Estate, Seller shall furnish Buyer with a written statement prior to closing
from the holder of such lien, showing the correct balance due.
14. USE OF PURCHASE PRICE. At time of settlement, funds of the Purchase
Price may be used to pay taxes and other liens and to acquire outstanding interests, if any,
of others.
15. REMEDIES OF THE PARTIES. In the event either party breaches this
Agreement, the other party is entitled to utilize any and all remedies or actions at law or in
equity available to them and shall be entitled to obtain a judgment for costs and attorney's
fees as permitted by law.
16. GENERAL PROVISIONS. The following general provisions govern this
Agreement:
A. No waivers. The waiver by either party hereto of any condition or the
breach of any term, covenant, or condition herein contained shall not be deemed to
be a waiver of any other condition or of any subsequent breach of the same or of any
other term, covenant, or condition herein contained.
B. Time of Essence. Time is of the essence in this Agreement.
C. Governing Law. This Agreement is made and executed under and in
all respects to be governed and construed by the laws of the State of Iowa.
D. Invalidity. If for any reason any term or provision of this Agreement
shall be declared void and unenforceable by any court of law or equity it shall only
affect such particular term or provision of this Agreement and the balance of this
Agreement shall remain in full force and effect and shall be binding upon the parties
hereto.
E. Complete Agreement. All understandings and agreements heretofore
existing between the parties are merged into this Agreement that alone fully and
completely expresses their agreement. This Agreement may be changed only in
writing signed by both of the parties hereto and shall apply to and bind the successors
Buyer's Initials:
Seller's Initials:
N
and assigns of each of the parties hereto and shall not merge with the deed delivered
to Buyer at closing.
F. Counterparts. This Agreement may be executed in a number of
identical counterparts, which taken together, shall cause it to be collectively one
Agreement. In making proof of this Agreement, it shall not be necessary to produce
or account for more than one such counterpart with each party's signature. An
electronically -transmitted copy of an executed counterpart this agreement shall be
deemed an original.
G. No Presumption Against Drafter. This Agreement has been freely
negotiated by both parties. In any controversy, dispute, or contrast over the
meaning, interpretation, validity, or enforceability of this Agreement or any of its
terms or conditions, there shall be no inference, presumption or conclusion drawn
whatsoever against either party by virtue of that party having drafted this Agreement
or any portion thereof.
17. CERTIFICATION. Buyer and Seller each certify that they are not acting,
directly or indirectly, for or on behalf of any person, group, entity or nation named by any
Executive Order or the United States Treasury Department as a terrorist, "Specially
Designated National and Blocked Person" or any other banned or blocked person, entity,
nation or transaction pursuant to any law, order, rule or regulation that is enforced or
administered by the Office of Foreign Assets Control; and are not engaged in this
transaction, directly or indirectly on behalf of, any such person, group, entity or nation.
Each party hereby agrees to defend, indemnify and hold harmless the other party from and
against any and all claims, damages, losses, risks, liabilities and expenses (including
attorney's fees and costs) arising from or related to my breach of the foregoing certification.
18.
ACCEPTANCE. If this Agreement is not signed by Seller by
at 5:00 p.m., this Agreement shall terminate without further
action by the parties.
19. [INTENTIONALLY OMITTED]
20. CROP DAMAGE. Buyer agrees to (i) pay Seller one time (in 2017) for crop
damages in the amount of 67% of the value of the crop planted on the Real Estate in 2017;
and (ii) pay the Seller one time (in 2018) for crop damages in the amount of 33% of the value
of the crop planted on the Real Estate in 2018. For purposes of this Section 20, the area to be
used for calculated crop damage is 2.51 acres.
SELLERS:
Buyer's Initials:
Seller's Initials:
no
BUYER:
CITY OF FAIRFAX
William E. Boland, Jr.
Date:
Verna Boland
Date:
Buyer's Initials:
Seller's Initials:
Date:
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