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Home My WebLink AboutResolution - 2010-R0163 - Joint Use Agreement: Red Hollow Wind, LLC With Lake Alan Henry - 04/08/2010Resolution No. 2010-RO163 April 8, 2010 Item No. 5.10 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 pipeline easement Joint Use Agreement between the City of Lubbock and Red Hollow Wind, LLC in connection with the Lake Alan Henry raw water pipeline, and related documents. Said Agreement 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 _ April -8- _ 2010. ATTEST: Re ec Garza.ity Secretary APPROVED AS TO CONTENT: at Marsha Reed, P.E., Chief Operaling Officer )rney TOM MARTIN, MAYOR Resolution No. 2010-R0163 THE STATE OF TEXAS § COUNTIES OF GARZA AND LYNN § JOINT USE AGREEMENT This Agreement made and entered into by and among the City of Lubbock, a Texas home rule municipal corporation, hereinafter called ("City"), and Red Hollow Wind, LLC, a Delaware Limited Liability Company and Fremantle Energy, LLC, a Delaware Limited Liability Company hereinafter called ("Operator"), whether one or more, hereby agree as follows: WHEREAS, the City has obtained the appropriate permits and authority for an easement and temporary easement (the "Easement") through, over, under, upon, across and within the sixty foot (60') wide area described by metes and bounds on Exhibit A (the "Easement Area") situated in Garza, Lynn and Lubbock Counties, Texas for the survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of (i) a single underground pipeline located within the Easement Area for the transportation of raw water (the "Pipeline"), and (ii) the following equipment and appurtenances related to the Pipeline and situated within the Easement Area: conduits, drain (blow -off) valves, valve boxes, meter boxes, vents (air valves), manholes, manhole covers (with post around manholes), corrosion monitoring test stations, pipeline markers, fence gates, flow meters, system communication lines (including, but not limited to, fiber optic lines), splice boxes, and corrosion control equipment, corrosion monitoring equipment and other equipment and facilities related thereto (collectively, the "Pipeline Equipment") in Garza, Lynn and Lubbock Counties, Texas, for the purpose of providing raw water for the needs of the City, said pipeline project to be hereinafter referred to as (the "Project"), and WHEREAS, the City acknowledges that there exists Lease Agreements dated February 27, 2008 and a Transmission Easement Agreement dated August 26, 2009 between one or more individuals ("Grantors") and Operator covering property owned by Grantors in Garza and Lynn Counties, Texas, including the Easement Area and Temporary Easement Area, (the "Leased Property") for purposes of the development of wind energy generation and transmission and related uses (the "Wind Energy Proiect(s)"), for which Memorandum of Leases were recorded under Instrument No. 080935 in Book 298, Page 111, Instrument No. 080937 in Book 298, Page 129, Instrument No. 080936, Page 298, Page 119 and Instrument No. 080939 in Book 298, Page 145 of the Official Records of Garza County, Texas and a Transmission Easement Agreement located in Lynn County, Texas has been executed (the "Wind Lease") identified on Exhibit B, the interest of the Operator being sometimes hereinafter referred to as the "property," and Pursuant to the Wind Lease, the Operator has the right, among other rights, to develop, install and operate on the Leased Property wind turbines (and the foundations, footings and other appliances and fixtures for use with such wind turbines), underground and above ground electrical transmission and communications lines related to the operation of wind turbines, electric transformers, energy storage facilities, telecommunications equipment, roads, meteorological towers, control buildings, maintenance yards and related facilities and equipment necessary or convenient for the operation and maintenance of one or more Wind Energy Projects (the "Wind Lease Improvements"). I WS CFFP N u+Yo k 4882355: vDA'S CFFF Nlew or 4882.3-55 Q WHEREAS, the exercise of the Operator's rights under the Wind Lease involving the use of the described property could conflict with the construction, operation and use of the Project for its intended purpose, and the City's construction, operation and use of the Project for its intended purpose could conflict with the Operator's rights to develop, construct, operate and maintain Wind Energy Projects on the Leased Property and WHEREAS, the City and Operator desire to agree to a joint use agreement whereby each parties rights shall be recognized by the other. NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: That for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration and the further consideration of the mutual benefits to the parties hereto, it is mutually agreed as follows: 1. Joint Use Agreement: The City shall not construct or install any structure or other improvement that is either within five hundred feet (500') of any existing Wind Lease Improvements or is more than thirty feet (30') in height in the Easement Area. However, the City shall be allowed ingress, egress and regress at all times over the Easement Area. The City shall not be required to remove or relocate the Pipeline Equipment at any time. Further the Operator agrees that all power lines, roads, pipelines, telephone and other telecommunication lines of Operator must cross the Easement Area at no less than a 651 (sixty- five degree) angle. Further all underground power lines and any metallic pipelines crossing the Easement Area must have a minimum separation of three feet (3') from the Pipeline System and must meet industry standards. Save and except those improvements listed above which are allowed to cross the Easement Area, the Operator shall not locate any above ground improvements on the Easement Area without written consent. The Operator shall be allowed ingress, egress and regress at all times over the Easement Area. The City and Operator hereby agree to recognize the rights of the other party and agree that no action will be taken by either party in the Easement Area that will conflict with the rights of the other party granted herein without the express written consent of the other party. The City and Operator hereby declare all rights which each have are inviolable and are recognized by the other party. 2. Conditions of Operations: Any activity of either party, or those claiming under either party, except ingress, egress or regress across the surface of the Easement Area by either party in the normal course of operating and maintaining the Project and Wind Energy Project(s), shall be promptly reported to the other party with a minimum of two business days notice, notification shall be in writing and shall describe the work being done. Emergency situations can be notified by telephone when necessary. All such activity shall be conducted in such manner as to protect the relative interest of each party at all times. 3. Term of Agreement and Bindinq Effect: WS. CFFP_NewYork: 4882355: v2WS=6FFP_NewYork:488?-3-5-5=v-2 This Agreement shall remain in full force and effect so long as the Project exists and the covenants contained herein shall constitute covenants running with the title. 4. Easement Agreements Affected: This Joint Use Agreement shall affect the Easement Agreement(s) by and between Cecille Stolle, Ronnie Dunn and Ross L. Dunn, Randall R. Adams and Tammy R. Adams, The Estate of J. Donald Basinger and EB Murphy each as Grantors and the City of Lubbock as Grantee (collectively "Agreements" whether one or more) which Agreements are attached hereto and incorporated herein. The City of Lubbock By: ,y Name: TOM MARTIN Title: Red Hollow Wind, LLC a Delaware limited liability company By: Fremantle Energy Holdings, LLC, a Delaware limited liability company Its Sole 4H.ule By: Name. oma Title: Director I WS. CFFP NewYork 4882355: v2WS: CFFP. NewYor"88235-5• v2 CITY OF LUBBOCK Z&4 TOM MARTIN, MAYOR ATTEST: Rebecca Garza, City Sec t APPROVED AS TO CONTENT: 1 Marsha Reed, P. ., Chief Operating Officer ran igb rney for City of Lubbock Craig,Terr , Hale & Grantham, LLP Fremantle Energy, LLC a Delaware limited liability company By: Fremantle Energy Holdings, LLC, a Delaware limited Tbility company Its Sole Member , By: Name: THE STATE OF TEXAS § COUNTY OF LI�1,�09 § This instrument was acknowledged before me on the 1 � day of r� ( 2010, by M PA0.N �A V-\ , on behalf of the City of Lubbock. ELISA SANCHEZ Notary Public, State of Texas My Commission Expires 1107 2011 THE STATE OF TEXAS § COUNTY OF § L� . S NOTARY PUBLIC State of Texas This instrument was acknowledged before me on the day of Mw� 2010, by :U01414Hugh- , on behalf of Red Hollow Wind, LLC. THE STATE OF TEXAS § WS CFFP Newyork: 4882355: v2WS CFFP NewYork=4882355: Y2 %ate 1, &�- N, TARY PUBLIC of Texas ,.�"er►�., .f��•...e�. ,. JUNE MARIE M. GRAY Notary Public, State of Texas My Commission Expires MatCh 27, 2011 THE STATE OF TEXAS § WS CFFP Newyork: 4882355: v2WS CFFP NewYork=4882355: Y2 %ate 1, &�- N, TARY PUBLIC of Texas COUNTY OF LWh,S, _ § This instrument was acknowledged before me on the'30 day of farck 2010, by on behalf of Red Hollow Wind, LLC. JUNE MARIE M. GRAY Notary public, State of Texas My COMMISslon Expires March 27, 2011 THE STATE OF TEXAS § COUNTY OF vi § k A- — - — -j1d2:L&'d4 L -t NPTARY PUBLIC ate of Texas This instrument was acknowledged before me on the 30 day of ftictft2010, by aafflas R. , on behalf of Fremantle Energy, LLC. �o��nrrua y� JUNE MARIE M. GRAY Notary Public, State of Texas My Commission Expires March 27, 2011 THE STATE OF TEXAS § COUNTY OF Jra vs')i § xi- Rg - NC#ARY PUBLIC StAte of Texas This instrument was acknowledged before me on the 30day of i vtA 2010, by on behalf of Fremantle Energy, LLC. JUNE M RIE M. GRAY No% Public, State of Texas y Commission Explras March 27, 2011 I WS: CFFP Newyork: 4882355: y2WS=CFFP—NewYork= 3-55: v- Y. N TARY PUBLIC State of Texas Resolution No. 2010-ROI63 EXHIBIT "A" — LEGAL DESCRIPTIONS Parcel No. 26 — Randall R. Adams & Tammy Adams FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 1240, J. Hays Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the South line of a tract of land as described in Volume 239, Page 849, Deed Records of Garza County, Texas, for the beginning of this description, from whence a 8"x8" concrete monument found for the East Quarter corner of said Section 1240, bears South 11 59' 55" West, a distance of 785.78 feet and South 88° 07' 38" East, a distance of 1122.55 feet, said point of beginning having a project coordinate of Y = 7169176.26 and X = 1055279.89; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 265.02 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 260 24' 28"; THENCE North 881 02' 18" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 319.52 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 369.88 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 360 51' 25"; THENCE North 510 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1002.26 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 451.60 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 450 00' 00"; THENCE North 60 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 188.33 feet to the beginning of a curve to the left; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 451.60 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 45° 00'00"; THENCE North 51° 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 27.95 feet to the beginning of a curve to the left; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 140.45 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 13° 59' 44"; THENCE North 65° 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 176.22 feet to a point; THENCE North 0° 00' 00" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 25.02 feet to a 1/2" iron rod with cap, set on the South right-of- way line of F.M. 211, for the end of this description, whence a 4"x4" concrete monument found for the North Quarter corner of said Section 1240, bears North 10 59' 55" East, a distance of 50.95 feet and South 880 00'05" East, a distance of 873.87 feet. Containing 207.14 rods (4.70 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 4.71 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 27 — Ronnie Dunn FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 3, Block D-18, D. & S.E. Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the North right-of-way line of F.M. 211, for the beginning of this description, from whence a 4"x4" concrete monument found for the South Quarter corner of said Section 3, bears South 10 56' 55" West, a distance of 49.05 feet and South 880 00' 05" East, a distance of 877.32 feet, said point of beginning having a project coordinate of Y = 7171260.73 and X = 1052841.90; THENCE North 0° 00' 00" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 25.01 feet to a point; THENCE North 770 19' 34" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 586.08 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 121.93 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 120 08' 57"; THENCE North 650 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1252.41 feet to a 1/2" iron rod with cap, set on the East right- of-way line of a Sixty -Foot (60') county road, for the end of this description, whence a 8"x8" concrete monument found for the West Quarter corner of said Section 3, bears North 880 00' 05" West, a distance of 30.00 feet and North 10 49' 03" East, a distance of 1936.73 feet. Containing 120.33 rods (2.73 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 2.89 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 28 — J. Donald Basinger Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southeast Quarter of Section 1248, P.B. Hall Survey, Garza County, Texas and said pipeline centerline being described as follows: Beginning at a'/2" iron rod with cap, set on the West right of way line of a sixty -foot county road, for the beginning of this description, from whence a 8"x8" concrete monument found for the East Quarter corner of said Section 1248, bears South 88°00'05" East, a distance of 30.00 feet and North 1049'03" East, a distance of 1936.73 feet, said point of beginning having a project coordinate of Y = 7172006.60 and X = 1050959.00; Thence North 65010'36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 2863.08 feet to a'/2" iron rod with cap, set on the West line of the Southeast Quarter, for the end of this description, whence a 4"x4" concrete monument found for the Northwest corner of the Southeast Quarter, bears North 1'54'54" East; a distance of 801.68 feet. Containing 173.52 rods. (3.94 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 3.94 acres of land, The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 30 — Jack (Mike) Grigg (E.B. Murphy) FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in a 209.3 acre tract of land out of Section 1248, P.B. Hall Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the South line of the Northwest Quarter of Section 1248, for the beginning of this description, from whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter corner of said Section 1248, bears North 870 59' 15" West, a distance of 753.91, said point of beginning having a project coordinate of Y = 7174076.91 and X = 1046477.69; THENCE along the arc of a curve to the left and being along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 51.64 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 50 08' 43"; THENCE North 651 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 735.21 feet to a 1/2" iron rod with cap, set on the East right-of- way line of a sixty -foot (60') county road, for the end of this description, whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter of Section 1248, bears North 870 59' 15" West, a distance of 30.00 feet and South 10 55' 51" West, a distance of 307.16 feet. Containing 47.69 rods (1.08 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 1.26 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 40 — Cecil Stolle FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southwest Quarter of Section 1263, J.H. Gibson Survey, Lynn County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the North right-of-way line of a sixty -foot (60') county road, for the beginning of this description, from whence a 8"x8" concrete monument found for the Southeast corner of the Southwest Quarter of said Section 1263, bears South 20 00' 08" West, a distance of 30.00 and South 880 00' 01" East, a distance of 244.76 feet, said point of beginning having a project coordinate of Y = 7182520.75 and X = 1032554.67; THENCE North 46° 35' 11" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 3155.21 feet to a 1/2" iron rod with cap, set on the East right- of-way line of sixty -foot (60') county road, for the end of this description, whence a 4"A" concrete monument found for the Northwest corner of the Southwest Quarter of Section 1263, bears North 880 00' 11" West, a distance of 30.00 feet and North 1° 59' 53" East, a distance of 524.47 feet. Containing 191.22 rods (4.35 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 4.51 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Exhibit A Metes and Bounds Description of the Perpetual Exclusive Easement and The Temporary Easement 1Z EXHIBIT "A" PARCEL NO. 28 J. DONALD BASINGER Field Notes describing the centerline of a Sixty -Foot (601 wide permanent pipeline easement being located In the Southeast Quarter of Section 1248, P.B. Hail Survey, Garza County, Texas and said pipeline centerline being described as follows: Beginning at a'b" Iron rod with cap, set on the West right of way line of a sixty -foot county road, for the beginning of this description, from whence a 8"x8" concrete monument found for the East Quarter corner of said Section 1248, bears South 88°00'05" East, a distance of 30.00 feet and North 11049103" East, a distance of 1936.73 feet, said point of beginning having a project coordinate of Y = 7172006.60 and X = 1050959.00; Thence North 65010'36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 2863.08 feet to a 'k" iron rod with cap, set on the West line of the Southeast Quarter, for the end of this description, whence a 4"x4" concrete monument found for the Northwest corner of the Southeast Quarter, bears North 1°54'54" East, a distance of 801.68 feet. Containing 173.52 rods. (3.94 acres) The above described sixty foot (60') wide permanent pipeline• easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 3.94 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Notes: I. A survey plat of even survey date herewith aocompanies this legal description. 2. Surveyed on the ground March -May, 2009. 3. Bearings shown are grid bearings based on the Texas State Plane Coordinate System, Texas North Central Zone, Nad83 Datum. 4. All distance shown are surface distances. 5. Surface adjustment factor for entire project .is 1.0002396 Registered fessional land Surveyor'.... Date ' 'Q Yb r ri "I HIGH --TECH LAND AND GPS SURVEYORS, INC. 3330 70th St., Suite 202 - Lubbock, Texas 79413 (806) 788-0020 r Fax (806) 792-1646 Exhibit B Survey Plat(s) of Centerline and Description of that portion of the Pipeline System Requiring the Easement and Temporary Easement EXHIBIT ' B' Jack fMAke1 GrJgg 12306, LLC Vol. 21;,, Pg. 18/ Vol. 290 Pg. 125 S 87" 58'59" E 266.4.0' S F0. R,R. SP . S• -6i P. N,:TA1,L Y 5b.fZV6;Y I , A legal description of even survey dote herewith��r, accompanies this survey plat 1 A rto e Su ed on the gr rc -May, 2009 rf;�'; ,r ,Pfd• .=� r. �arYJ� �- Registered r fessional Land Surveyor �! ...... o.0, Dater[/ 4 All Northings and Eastings shown ore proJJ'ect coor 'int and may be converted to Texas State Plone Coordino North Central Zone, NAD83 by dividing by a 'surface adjustment factor of 1.0002396 All distances shown are surface distances. Bearings shown are grid bearings based on the Texas State Plane Coordinate System, North CentralZone, NAD83 Dotum. This survey and ollinformation hereon is for the exclusive use of CITY OF LUBBOCK and shollnol be copied or used except for the purpose for which itis expressly furnished this drawing and all copies (partial or complete) shollbe returned to the owner upon demand. E.H. Johnston Moore & Runk/es Vol. 166 Pg. 848 } -FD. CONC. MON FD. CONC. MON! 28 Qv J. Donald Basinger U Vol. 251, Pg. 6u ��- •co ��-- SEGT I ON 1 218 C5 1# Robert Lee Mock N -zZ� 60' Tempora ��-- Vol. 223 Pg. 113 w Const. Esmt.- `y 60' Permonenf 394 Ac, ia3��`\ ' - `� Easement Pe 6o HALI. SURVEY�� -. GAKZA GOUNTY, TEXAS 30" G `r 17352 Rods - Permanent Esmt- I P.O.B=-/ (3-94 Ac. - Permnent smtJY-7f72D06.60 X -165D959.00 S F0. R,R. SP . S• -6i P. N,:TA1,L Y 5b.fZV6;Y I , A legal description of even survey dote herewith��r, accompanies this survey plat 1 A rto e Su ed on the gr rc -May, 2009 rf;�'; ,r ,Pfd• .=� r. �arYJ� �- Registered r fessional Land Surveyor �! ...... o.0, Dater[/ 4 All Northings and Eastings shown ore proJJ'ect coor 'int and may be converted to Texas State Plone Coordino North Central Zone, NAD83 by dividing by a 'surface adjustment factor of 1.0002396 All distances shown are surface distances. Bearings shown are grid bearings based on the Texas State Plane Coordinate System, North CentralZone, NAD83 Dotum. This survey and ollinformation hereon is for the exclusive use of CITY OF LUBBOCK and shollnol be copied or used except for the purpose for which itis expressly furnished this drawing and all copies (partial or complete) shollbe returned to the owner upon demand. E.H. Johnston Moore & Runk/es Vol. 166 Pg. 848 } Z Z o 'M U •co 81.0GK :w r ;M Lance Dunn F� Vol. 23S Pg. 351 EW Ronnie Dunn Vol. 235 Pg, 349 3 246 1 240 0- Set as, 2" Iron Rod With Cop SCALE 1' - 600' REVISION: PLAT DATE 4-23-09 CLIENT: PARKHILL SMITH & COOPER - CITY OF LUBBOCK DRAWN BY: B. BURROW I SURVEY DATE: 3-5,2009 SURVEYED BY: J.M. MARTIN I CHECKED BY: G. WILSON FILE: PAR28.d n FILE NO. 35.7601 SHEET 1 OF 2 ,;;�� i�tt-i�CH 3330 T S7„ WE 202 • LUBBOCK. TK. 79413 [8061 780-0020 - rAY 49M 702 -SEAS Exhibit C PIPELINE EASEMENT SAFETY GUIDELINES So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the pipeline Easement (the oEasementh), as well as applicable laws and regulations: 1. Except during construction, operation, inspection, or maintenance of the Easement, Driving on the Easement is limited to use of currently established roadways, if any. 2. Permission on the Easement does not preclude the need to make a one -call to notify third -party pipeline owners of planned work. 3. Smoking outside vehicles within the Easement or lands or premises is prohibited. 4. No firearms, drugs, alcohol or cameras are permitted in the Easement. 6. Pedestrians and non -motorized traffic has right-of-way over motorized traffic 7. The maximum speed limit is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 8. Use horn for safety at blind corners and when passing. 9. Use established hand signals or turn indicators 10 Observe all signs including pipeline markers. 11. Come to complete stop on entering or leaving the Easement gates. 12. All persons entering the Easement must be fully clothed. 13. Grantee and personnel of Grantee are granted the right to temporarily use Grantor's property directly located outside of the Easement for such reasons as: a) avoidance of machinery, construction or equipment located on the Easement; and b) detouring around natural impediments such as rocks, trees or existing fences or structures; and c) repair, removal or maintenance of equipment or vehicles stranded on the Easement. 14. No debris or trash shall be discarded on the Easement. Exhibit D Gate Construction Detail and Specifications M 1,o 0 rx I O O N O z r. O •T-1 `4 O N P4 0 wa Z NyR7R 3ciaa u:z T r x 9,q v o c 6LLw �w r z yr gg� mzzs� "z C < W y � PAR N K v gig w 9 as �zznW.WmCCw �� zZ�� -j OZQo ai u. � 1 aF M PP }}-.. wa) to <W �N w2Nm (AW WW O 2 JSZ mWiW a ?a 0. U 3U �QW z eYW p Ww KK ==CK ZC V�W xxr� gag 3=0 W70N O W�3�yN Ntal Pow y� wCyN4ry yj�-p5 tj �o <mo ca m�ln�u< ai ru 3 V N P, N W22 o �d W v FZ w 111 n N S V J N � O V e ti _ _ fil lowr I X0.6. U NC tj r 3 V N P, N Resolution No. 2010-RO163 MEMORANDUM OF JOINT USE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER STATE OF TEXAS § COUNTIES OF GARZA AND LYNN § WHEREAS that certain Joint Use Agreement, hereinafter referred to as the "Agreement", dated April 15, 2010 by and between the City of Lubbock, a Texas home rule municipal corporation, hereinafter called ("City"), whose address is 1625 13th Street, Lubbock, Texas 79401, and Red Hollow Wind, LLC, a Delaware Limited Liability Company, and Fremantle Energy, LLC, a Delaware Limited Liability Company, hereinafter called ("Operator") whose address is 2700 Via Fortuna, Suite 150, Austin, TX 78746. Said Agreement, subject to the terms and conditions therein, covering that certain tract or parcels of land in Garza and Lynn Counties, Texas, to -wit: SEE EXHIBIT "A" ATTACHED HERETO KNOW ALL MEN BY THESE PRESENTS THAT: This Memorandum is executed for the purpose of recordation in the Offices of the County Clerks of Garza and Lynn Counties, Texas in order to give notice of the rights of the City and the Operator, which are more fully set forth in the Agreement dated April 15, 2010. Said Agreement has been executed and is effective on the date stated therein, said memorandum hereof is filed for record in the public records of Garza and Lynn Counties, Texas. Said Agreement is by and between the parties hereto, and reference to said Joint Use Agreement is made for all intents and purposes. The purpose of this Memorandum is to evidence the existence of said Agreement and is filed of record to afford notice of said Joint Use Agreement in conformity with the registration statutes and for the purpose of giving notice to third parties. Nothing in this Memorandum is intended to expand or contract any of the provisions of said Joint Use Agreement. Any inconsistencies between this Memorandum and said Joint Use Agreement shall be resolved in favor of said Joint Use Agreement, and the terms and provisions of said Agreement shall control in all events, the City and Operator affirm they have executed an original of the Joint Use Agreement and the City is in possession of such original. IN WITNESS WHEREOF, this Memorandum of Joint Use Agreement is executed on this I2 day of KQM, 2011. CITY OF LUBBOCK, a Texas Home Rule Corporation: By: '— / TOM MARTIN, Mayor ATTEST: RE C , CITY SE Y RED HOLLOW WIND, LLC, a Creiaware limited liability company By: Fremantle Energy Holdings, LLC A Delaware limited liability company Its Sole Member By: Thomas H. ule, Director By: ��4) is al -'Allison, Director FREMANTLE ENERGY, LLC, a Delaware limited liability company By: Fremantle Energy Holdings, LLC A Delaware limited liability company Its Sole Member By: Thomas H. ule, Director By:, e -- Mi a Allison, Director STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on � V _ , 2011, by TOM MARTIN on behalf of the City of Lubbock, a Texas Home Rule Corporation on behalf of said Texas Home Rule Corporation. ELISA SANCHEZ Notary Public, State of Texas My commission Expires 11.07-2011 STATE OF TEXAS COUNTY OF TRAVIS E" �� - Notary Public, State of e Printed Name of Notary My commission expires: 11'y 1 "ajo 1 k This instrument was acknowledged before me on -' f�nb`11 , 1, 20by Thomas H. Houle, Director of Fremantle Energy Holdings, LLC a Delaware limited liability company sole member of Red Hollow Wind, LLC, a Delaware limited liability company on behalf of said company4 ,,In , Nrjtary Public, State of -f uh2 � � n1, rr-a" • ervu JUNE MARIE M. GRAY Printed Name of NotaryF Notary Public, State of Texas My commission expires: 3-Z7-2011 �s°� ••�= My Commission Expires March 27, 2011 STATE OF NEW YORK § COUNTY OF&,� � § I This instrument was acknowledged before me on �'' / 3 , 201X; by Michael Allison, Director of Fremantle Energy Holdings, LLC, a Delaware limited liability company sole member of Red Hollow Wind, LLC, a Delaware limited liability company on behalf of said company. RICHARD A. KEEFE Notary Public, State of New York Registration #02KE6124107 Qualified In V�'e^tchoster County CdrnPriis$ion I".{pim, March 21, 2013 Not ry Public, to U Printed Name of Notary My commission expires: t0%kJ. ( STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on izkcti• Irl , 201 , by Thomas H. Houle, Director of Fremantle Energy Holdings, LLCtb Delaware limited liability company sole member of Fremantle Energy, LLC, a Delaware limited liability company on behalf of said company.4 :AA JUNE MARIE M. GRAY `•`'"r"` '' Public, State of Texas s Notary My Commission ExpirgS March 27, 2011 °"��Eor�'`;°••• ry Public, State Printed Name of Notaryj My commission expires: 3-2-7-7-oli STATE OF NEW YORK § COUNTY OF §K This instrument was acknowledged before me on I� / 3 , 201f, by Michael Allison, Director of Fremantle Energy Holdings, LLC, a Delaware limited liability company sole member of Fremantle Energy, LLC, a Delaware Ii ' ed liability company on behalf of said company. Notary Public, Printed Name of Notary' My commission expires. /n'¢iQ al 10/3 .. RICHARD A. KEEFE Notary Public, State of New York Registration #02KE6124107 Qualified In Westchester County Commission Expires March 21, 2013 Resolution No. 2010-ROI63 EXHIBIT "A" — LEGAL DESCRIPTIONS Parcel No. 26 — Randall R. Adams & Tammy Adams FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 1240, J. Hays Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 112" iron rod with cap, set on the South line of a tract of land as described in Volume 239, Page 849, Deed Records of Garza County, Texas, for the beginning of this description, from whence a 8"x8" concrete monument found for the East Quarter corner of said Section 1240, bears South 10 59' 55" West, a distance of 785.78 feet and South 880 07' 38" Cast, a distance of 1122.55 feet, said point of beginning having a project coordinate of Y = 7169176.26 and X = 1055279.89; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 265.02 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 26° 24' 28"; THENCE North 88° 02' 18" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 319.52 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 369.88 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 360 51' 25"; THENCE North 51° 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1002.26 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 451.60 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 45° 00' 00"; THENCE North 6° 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 188.33 feet to the beginning of a curve to the left; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') .vide permanent pipeline easement, an arc distance of 451.60 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 450 00' 00"; THENCE North 51° 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 27.95 feet to the beginning of a curve to the left; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 140.45 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 131, 59'44"; THENCE North 65° 10' 36" West, along the centerline of said Sixty -Foot (60) wide permanent pipeline easement, a distance of 176.22 feet to a point; THENCE North 01 00' 00" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 25.02 feet to a 1/2" iron rod with cap, set on the South right-of- way line of F.M. 211, for the end of this description, whence a 4"x4" concrete monument found for the North Quarter corner of said Section 1240, bears North V 59' 55" East, a distance of 50.95 feet and South 880 00' 05" East, a distance of 873.87 feet. Containing 207.14 rods (4.70 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 4.71 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 27 — Ronnie Dunn FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 3, Block D-18, D. & S.E. Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the North right-of-way line of F.M. 211, for the beginning of this description, from whence a 4"x4" concrete monument found for the South Quarter corner of said Section 3, bears South 1° 56' 55" West, a distance of 49.05 feet and South 880 00' 05" East, a distance of 877.32 feet, said point of beginning having a project coordinate of Y = 7171260.73 and X = 1052841.90; THENCE North 00 00' 00" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 25.01 feet to a point; THENCE North 771 19' 34" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 586.08 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 121.93 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 12" 08' 57"; THENCE North 650 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1252.41 feet to a 1/2" iron rod with cap, set on the East right- of-way line of a Sixty -Foot (60') county road, for the end of this description, whence a 8"x8" concrete monument found for the West Quarter corner of said Section 3, bears North 880 00' 05" West, a distance of 30.00 feet and North 10 49'03" East, a distance of 1936.73 feet. Containing 120.33 rods (2.73 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 2.89 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 28 — J. Donald Basinger Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southeast Quarter of Section 1248, P.B. Hall Survey, Garza County, Texas and said pipeline centerline being described as follows: Beginning at a %" Iron rod with cap, set on the West right of way line of a sixty -foot county road, for the beginning of this description, from whence a 8"x8" concrete monument found for the East Quarter corner of said Section 1248, bears South 88°00'05" East, a distance of 30.00 feet and North 1'49'03" East, a distance of 1936.73 feet, said point of beginning having a project coordinate of Y = 7172006.60 and X = 1050959.00; Thence North 65°10'36" West, along the centerline of said Sixty -Fool (60') wide permanent pipeline easement, a distance of 2863.08 feet to a Yz" iron rod with cap, set on the West line of the Southeast Quarter, for the end of this description, whence a 4"x4" concrete monument found for the Northwest corner of the Southeast Quarter, bears North 154'54" East; a distance of 801.68 feet. Containing 173.52 rods. (3.94 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 3.94 acres of land, The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 30 — Jack (Mike) Grigg (E.B. Murphy) FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in a 209.3 acre tract of land out of Section 1248, P.B. Hall Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the South line of the Northwest Quarter of Section 1248, for the beginning of this description, from whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter corner of said Section 1248, bears North 870 59' 15" West, a distance of 753.91, said point of beginning having a project coordinate of Y = 7174076.91 and X = 1046477.69; THENCE along the arc of a curve to the left and being along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 51.64 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 50 08' 43"; THENCE North 65° 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 735.21 feet to a 1/2" iron rod with cap, set on the East right-of- way line of a sixty -foot (60') county road, for the end of this description, whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter of Section 1248, bears North 87" 59' 15" West, a distance of 30.00 feet and South 1° 55' S1" West, a distance of 307.16 feet. Containing 47.69 rods (1.08 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 1.26 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 40 — Cecil Stolle FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southwest Quarter of Section 1263, J.H. Gibson Survey, Lynn County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the North right-of-way line of a sixty -foot (60') county road, for the beginning of this description, from whence a 8"x8" concrete monument found for the Southeast corner of the Southwest Quarter of said Section 1263, bears South 20 00' 08" West, a distance of 30.00 and South 880 00' 01" East, a distance of 244.76 feet, said point of beginning having a project coordinate of Y = 7182520.75 and X = 1032554.67; THENCE North 46° 35' 11" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 3155.21 feet to a 1/2" iron rod with cap, set on the East right- of-way line of sixty -foot (60') county road, for the end of this description, whence a 4"x4" concrete monument found for the Northwest comer of the Southwest Quarter of Section 1263, bears North 880 00' 11" West, a distance of 30.00 feet and North 11' 59' 53" East, a distance of 524.47 feet. Containing 191.22 rods (4.35 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 4.51 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. City of Lubbock Attn: Dave Booher Ri« rt-of-Mlay Agent P.O. Box 2000 Lubbock, Texas 79457 MEMORANDUM OF JOINT USE AGREEMENT Resolution No. 2010-RO163 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER STATE OF TEXAS § COUNTIES OF GARZA AND LYNN § WHEREAS that certain Joint Use Agreement, hereinafter referred to as the "Agreement", dated April 15, 2010 by and between the City of Lubbock, a Texas home rule municipal corporation, hereinafter called ("City"), whose address is 1625 13th Street, Lubbock, Texas 79401, and Red Hollow Wind, LLC, a Delaware Limited Liability Company, and Fremantle Energy, LLC, a Delaware Limited Liability Company, hereinafter called ("Operator") whose address is 2700 Via Fortuna, Suite 150, Austin, TX 78746. Said Agreement, subject to the terms and conditions therein, covering that certain tract or parcels of land in Garza and Lynn Counties, Texas, to -wit: SEE EXHIBIT "A" ATTACHED HERETO KNOW ALL MEN BY THESE PRESENTS THAT: This Memorandum is executed for the purpose of recordation in the Offices of the County Clerks of Garza and Lynn Counties, Texas in order to give notice of the rights of the City and the Operator, which are more fully set forth in the Agreement dated April 15, 2010. Said Agreement has been executed and is effective on the date stated therein, said memorandum hereof is filed for record in the public records of Garza and Lynn Counties, Texas. Said Agreement is by and between the parties hereto, and reference to said Joint Use Agreement is made for all intents and purposes. i a r, IL The purpose of this Memorandum is to evidence the existence of said Agreement and is filed of record to afford notice of said Joint Use Agreement in conformity with the registration statutes and for the purpose of giving notice to third parties. Nothing in this Memorandum is intended to expand or contract any of the provisions of said Joint Use Agreement. Any inconsistencies between this Memorandum and said Joint Use Agreement shall be resolved in favor of said Joint Use Agreement, and the terms and provisions of said Agreement shall control in all events, the City and Operator affirm they have executed an original of the Joint Use Agreement and the City is in possession of such original. IN WITNESS WHEREOF, this Memorandum of Joint Use Agreement is 0 M executed on this ff day of Kam , 2011. CITY OF LUBBOCK, a Texas Home Rule Corporation: By: M I ARTIN; iflayor ATTEST:; GARZA, CITY SECRET RED HOLLOW WIN oD,`, LLC, ii_De are limited liability company JJ®, By: Fremantle, Enerpig6ldings, LLC A bblgware`limltod liability company Its S01e'M@IAI�er By: Thomas H. le, Director By: ich son, Director FREMANTLE ENERGY, LLC, a Delaware limited liability company By: Fremantle Energy Holdings, LLC A Delaware limited liability company Its Sole Member as H. Hole, Director By: M�chael Xlkr, Director STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on , 201 t, by TOM MARTIN on behalf of the City of Lubbock, a Texas Horfie Rule Corporation on behalf of said Texas Home Rule Corporation. ELISA SANCHEZ Notary Public, State of Notary Public, State of Texas E S0. .�a-n c ii e Z dE�1 V My commission Expires tt•07.2011 Printed Name of Notary My commission expires: ��—OirZ�lt STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on U 201ty Thomas H. Houle, Director of Fremantle Energy Holdings, LL , a Delaware limited liability company sole member of Red Hollow Wind, LLC, a Delaware limited liability company on behalf of said company. JUNE MARIE at GRAY Notary Public, State of Texas • My Commission Expires �'"'+,f";;E*•' March 27, 2011 Notary Public, State Printed Name of NotaW My commission expires: 3 -Z7 -z>1 r STATE OF NEW YORK § COUNTY OF AJF�.j O (C § 94K This instrument was acknowledged before me on TA/U / 3 , 201#, by Michael Allison, Director of Fremantle Energy Holdings, LLC, a Delaware limited liability company sole member of Red Hollow Wind, LLC, a Delaware limited liability company on behalf of said company. RICHARD A. KEEFE Notary Public, State of New York Registration #f02KE6124107 Qualified In Westchester County Commission Exrrel2 perch 21, 2013 442��Id Notarryy Public, State of a P IrP nted Name of Notary My commission expires: 1i J-ei '3 STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on� ('7 201tby Thomas H. Houle, Director of Fremantle Energy Holdings, LL a Delaware limited liability company sole member of Fremantle Energy, LLC, a Delaware limited liability company on behalf of said company.,/ ,^, JUNE MARIE M. GRAY Public, State of Texas ' Notary N G v;�c My Commissio Zaliires -'-,a • Vit,,• March 27, STATE OF NEW YORK COUNTY OF NgLary Public, State Printed Name of Notaryd My commission expires: 3 Z7-2�i x This instrument was acknowledged before me on Thin. /1 1 2010, by Michael Allison, Director of Fremantle Energy Holdings, LLC, a Delaware limited liability company sole member of Fremantle Energy, LLC, a Delaware limited liability company on behalf of said company. Notary Public, StatX of u C Printed Name of Notary My commission expires: AMR A( 1e/3 ERICH-ARD A. KEEFE State of New York#02KE6124107estchester Countypires March 21, 2013 Resolution No. 2010—ROI63 EXHIBIT "A" - LEGAL DESCRIPTIONS Parcel No. 26 - Randall R. Adams & Tammy Adams FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 1240, J. Hays Survey, Garza County, Texas, and said pipeline centerline being described as follows; BEGINNING at a 1/2" iron rod with cap, set on the South line of a tract of land as described in Volume 239, Page 849, Deed Records of Garza County, Texas, for the beginning of this description, from whence a 8"x8" concrete monument found for the East Quarter corner of said Section 1240, bears South 10 59' 55" West, a distance of 785.78 feet and South 880 07' 38" East, a distance of 1122.55 feet, said point of beginning having a project coordinate of Y = 7169176.26 and X = 1055279.89; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 265.02 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 260 24' 28"; THENCE North 88° 02' 18" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 319.52 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 369.88 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 360 51' 25"; THENCE North 51° 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1002.26 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 451.60 feet to a point for the eiid of this curve, said curve having a radius of 575.00 feet and a delta angle of 451 00' 00"; THENCE North 6° 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 188.33 feet to the beginning of a curve to the left; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 451.60 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 45° 00' 00"; THENCE North 51° 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 27.95 feet to the beginning of a curve to the left; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 140.45 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 130 59'44"; THENCE North 65° 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 176.22 feet to a point; THENCE North 00 00' 00" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 25.02 feet to a 1/2" iron rod with cap, set on the South right-of- way line of F.M. 211, for the end of this description, whence a 4"x4" concrete monument found for the North Quarter corner of said Section 1240, bears North 1° 59' 55" East, a distance of 50.95 feet and South 880 00' 05" East, a distance of 873.87 feet. Containing 207.14 rods (4.70 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 4.71 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 27 — Ronnie Dunn FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 3, Block D-18, D. & S.E. Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the North right-of-way line of F.M. 211, for the beginning of this description, from whence a 4"x4" concrete monument found for the South Quarter corner of said Section 3, bears South 11 56' 55" West, a distance of 49.05 feet and South 880 00' 05" East, a distance of 877.32 feet, said point of beginning having a project coordinate of Y = 7171260.73 and X = 1052841.90; THENCE North 01 00' 00" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 25.01 feet to a point; THENCE North 77° 19' 34" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 586.08 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 121.93 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 121, 08' 57"; THENCE North 65° 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1252.41 feet to a 1/2" iron rod with cap, set on the East right- of-way line of a Sixty -Foot (60') county road, for the end of this description, whence a 8"x8" concrete monument found for the West Quarter corner of said Section 3, bears North 880 00' 05" West, a distance of 30.00 feet and North V 49'03" East, a distance of 1936.73 feet. Containing 120.33 rods (2.73 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 2.89 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 28 — J. Donald Basinger Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southeast Quarter of Section 1248, P.B. Hall Survey, Garza County, Texas and said pipeline centerline being described as follows: Beginning at a'/" iron rod with cap, set on the West right of way line of a sixty -foot county road, for the beginning of this description, from whence a 8"x8" concrete monument found for the East Quarter corner of said Section 1248, bears South 88°00'05" East, a distance of 30.00 feet and North 1 °49'03" East, a distance of 1936.73 feet, said point of beginning having a project coordinate of Y = 7172006.60 and X = 1050959.00; Thence North 65°10'36" West, along the centerline of said Sixty -Fool (60') wide permanent pipeline easement, a distance of 2863.08 feet to a Ys" iron rod with cap, set on the West line of the Southeast Quarter, for the end of this description, whence a 4"x4" concrete monument found for the Northwest corner of the Southeast Quarter, bears North 154'54" East; a distance of 801.68 feet. Containing 173.52 rods. (3.94 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 3.94 acres of land, The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 30 — Jack (Mike) Grigg (E.B. Murphy) FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in a 209.3 acre tract of land out of Section 1248, P.B. Hall Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the South line of the Northwest Quarter of Section 1248, for the beginning of this description, from whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter corner of said Section 1248, bears North 870 59' 15" West, a distance of 753.91, said point of beginning having a project coordinate of Y = 7174076.91 and X = 1046477.69; THENCE along the arc of a curve to the left and being along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 51.64 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 50 08' 43"; THENCE North 65° 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 735.21 feet to a 1/2" iron rod with cap, set on the East right-of- way line of a sixty -foot (60') county road, for the end of this description, whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter of Section 1248, bears North 87° 59' 15" West, a distance of 30.00 feet and South 10 55' 51" West, a distance of 307.16 feet. Containing 47.69 rods (1.08 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 1.26 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 40 — Cecil Stolle FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement F being located in the Southwest Quarter of Section 1263, J.H. Gibson Survey, Lynn County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the North right-of-way line of a sixty -foot (60') county road, for the beginning of this description, from whence a 8"x8" concrete monument found for the Southeast corner of the Southwest Quarter of said Section 1263, bears South 20 00' 08" West, a distance of 30.00 and South 880 00' 01" East, a distance of 244.76 feet, said point of beginning having a project coordinate of Y = 7182520.75 and X = 1032554.67; THENCE North 461 35' 11" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 3155.21 feet to a 1/2" iron rod with cap, set on the East right- of-way line of sixty -foot (60') county road, for the end of this description, whence a 4"x4" concrete monument found for the Northwest corner of the Southwest Quarter of Section 1263, bears North 88° 00' 11" West, a distance of 30.00 feet and North 10 59' 53" East, a distance of 524.47 feet. Containing 191.22 rods (4.35 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 4.51 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. FILED FOR RECORD 2011 Jun 16 at 01:35 PM Jim PlufflWeer, County Clerk 4zMM=B DEPLM City of Lubbock Attn: Dave Booher Right -of -Way Agent P.O. Box 2000 Lubbock, Texas 79457 MEMORANDUM OF JOINT USE AGREEMENT 20"1 -18 08 Resolution No. 2010-RO163 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER STATE OF TEXAS § COUNTIES OF GARZA AND LYNN § WHEREAS that certain Joint Use Agreement, hereinafter referred to as the "Agreement", dated April 15, 2010 by and between the City of Lubbock, a Texas home rule municipal corporation, hereinafter called ("City"), whose address is 1625 13th Street, Lubbock, Texas 79401, and Red Hollow Wind, LLC, a Delaware Limited Liability Company, and Fremantle Energy, LLC, a Delaware Limited Liability Company, hereinafter called ("Operator") whose address is 2700 Via Fortuna, Suite 150, Austin, TX 78746. Said Agreement, subject to the terms and conditions therein, covering that certain tract or parcels of land in Garza and Lynn Counties, Texas, to -wit: SEE EXHIBIT "A" ATTACHED HERETO KNOW ALL MEN BY THESE PRESENTS THAT: This Memorandum is executed for the purpose of recordation in the Offices of the County Clerks of Garza and Lynn Counties, Texas in order to give notice of the rights of the City and the Operator, which are more fully set forth in the Agreement dated April 15, 2010. Said Agreement has been executed and is effective on the date stated therein, said memorandum hereof is filed for record in the public records of Garza and Lynn Counties, Texas. Said Agreement is by and between the parties hereto, and reference to said Joint Use Agreement is made for all intents and purposes. The purpose of this Memorandum is to evidence the existence of said Agreement and is filed of record to afford notice of said Joint Use Agreement in conformity with the registration statutes and for the purpose of giving notice to third parties. Nothing in this Memorandum is intended to expand or contract any of the provisions of said Joint Use Agreement. Any inconsistencies between this Memorandum and said Joint Use Agreement shall be resolved in favor of said Joint Use Agreement, and the terms and provisions of said Agreement shall control in all events, the City and Operator affirm they have executed an original of the Joint Use Agreement and the City is in possession of such original. IN WITNESS WHEREOF, this Memorandum of Joint Use Agreement is executed on this I day of RQ 2011. CITY OF LUBBOCK, a Texas Home Rule Corporation. a By: C� TOM MARTIN, Mayor ATTEST: MEW,A GARZA, CITY SECR47W RED HOLLOW WIND, LLC, a tTelaware limited liability company By: Fremantle Energy Holdings, LLC A Delaware limited liability company Its Sole Mem r By:, Thomas H. ule, Director By - Mi at� Ilison, Director FREMANTLE ENERGY, LLC, a Delaware limited liability company By: Fremantle Energy Holdings, LLC A Delaware limited liability company Its Sole Memb By: Thomas H. o le, Director By: Mie ae AI ' n, Director STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on « , 2010, by TOM MARTIN on behalf of the City of Lubbock, a Texas Home Rule Corporation on behalf of said Texas Home Rule Corporation. },P " ELISA SANCHEZ r Notary Public, %t,3 of Texas My Commalon Expires 11.07.2011 a � STATE OF TEXAS COUNTY OF TRAVIS N tary Publ' , State of 1j5� oLnck-eZ Printed Name of Notary My commission expires: § U This instrument was acknowledged before me on mkQ- 19 , 201, y Thomas H. Houle, Director of Fremantle Energy Holdings, LLQ,)a Delaware limited liability company sole member of Red Hollow Wind, LLC, a Delaware limited liability company on behalf of said company. ,4 JUNE MARIE M. GRAY r r�� 4� public, State of Texas Notary My Commission Expires March 27, 2011 N ary Public, Statac_ u 1. � Ma ' e Printed Name of Notare My commission expires: 3-22-2,011 STATE OF NEW YORK § COUNTY OF u d § AA -X - This instrument was acknowledged before me on t -,d ) I I , 2011, by Michael Allison, Director of Fremantle Energy Holdings, LLC, a Delaware limited liability company sole member of Red Hollow Wind, LLC, a Delawed liability company on behalf of said company. // ��.4 RICHARD A. KEEFE Notary Public, State of New York Registration #02KE6124107 Qualified In Westchester County Commission Expires Mt-rcl, 21 , 2013 Printed Name of Notary' My commission expires: STATE OF TEXAS § COUNTY OF TRAVIS § This instrument was acknowledged before me on T1j Lk64-L `7 201 iflby Thomas H. Houle, Director of Fremantle Energy Holdings, LI-Q-ja Delaware limited liability company sole member of Fre antle Energy, LLC, a Delaware limited liability company on behalf of said company. MARIE M. � Notary PLiblic, Sta GRAY N a Public, State o aS r'' ;;,;;,;,;voTexas gas ry for�E��.` M Mo Commch�27, 2 ExP�es s lhr� M, r 2011 Printed Name of Notao . Y My commission expires: 3-Z7.7—ot i STATE OF NEW YORK § COUNTY OF § o RA-+ This instrument was acknowledged before me on 2010, by Michael Allison, Director of Fremantle Energy Holdings, LLC, a Delaware limited liability 1, company sole member of Fremantle Energy, LLC, a Delaw a limited liability company on behalf of said company. 1 rn Notary Public, Ebte j6f < C� Printed Name of Notary' My commission expires: Alk :L I lot 3 RICHARD A. KEEFE Notary Public, State of New York Registration #02KE6124107 Qualified In Westchester County Commission Expires March 21, 2013 Resolution No. 2010—ROI63 EXHIBIT "A" - LEGAL DESCRIPTIONS Parcel No. 26 - Randall R. Adams & Tammy Adams FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 1240, J. Hays Survey, Garza County, Texas, and said pipeline centerline being described as follows; BEGINNING at a 1/2" iron rod with cap, set on the South line of a tract of land as described in Volume 239, Page 849, Deed Records of Garza County, Texas, for the beginning of this description, from whence a 8"x8" concrete monument found for the East Quarter corner of said Section 1240, bears South 10 59' 55" West, a distance of 785.78 feet and South 880 07' 38" East, a distance of 1122.55 feet, said point of beginning having a project coordinate of Y = 7169176.26 and X = 1055279.89; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 265.02 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 260 24' 28"; THENCE North 88° 02' 18" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 319.52 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 369.88 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 360 51' 25"; THENCE North 51° 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1002.26 feet to the beginning of a curve to the right; 0 THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') r wide permanent pipeline easement, an arc distance of 451.60 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 45° 00' 00"; �7 THENCE North 60 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 188.33 feet to the beginning of a curve to the left; «; (20 THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') � I wide permanent pipeline easement, an arc distance of 451.60 feet to a point for the end of this O curve, said curve having a radius of 575.00 feet and a delta angle of 450 00'00"; THENCE North 510 10' 53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 27.95 feet to the beginning of a curve to the left; THENCE along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 140.45 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 130 59'44"; THENCE North 650 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 176.22 feet to a point; THENCE North 00 00' 00" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 25.02 feet to a 1/2" iron rod with cap, sot on the South right-of- way line of F.M. 211, for the end of this description, whence a 4"x4" concrete monument found for the North Quarter corner of said Section 1240, bears North 10 59' 55" East, a distance of 50.95 feet and South 880 00' 05" East, a distance of 873.87 feet. Containing 207.14 rods (4.70 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 4.71 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 27 — Ronnie Dunn FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 3, Block D-18, D. & S.E. Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the North right-of-way line of F.M. 211, for the beginning of this description, from whence a 4"x4" concrete monument found for the South Quarter corner of said Section 3, bears South 10 56' 55" West, a distance of 49.05 feet and South 881, 00' 05" East, a distance of 877.32 feet, said point of beginning having a project coordinate of Y = 7171260.73 and X = 1052841.90; THENCE North 00 00' 00" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 25.01 feet to a point; THENCE North 77° 19' 34" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 586.08 feet to the beginning of a curve to the right; THENCE along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 121.93 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 121, 08' 57"; THENCE North 650 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1252.41 feet to a 1/2" iron rod with cap, set on the East right- of-way line of a Sixty -Foot (60') county road, for the end of this description, whence a 8"x8" concrete monument found for the West Quarter corner of said Section 3, bears North 880 00' 05" West, a distance of 30.00 feet and North 11 49'03" East, a distance of 1936.73 feet. Containing 120.33 rods (2.73 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 2.89 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 28 — J. Donald Basinger Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southeast Quarter of Section 1248, P.B. Hall Survey, Garza County, Texas and said pipeline centerline being described as follows: Beginning at a %" iron rod with cap, set on the West right of way line of a sixty -foot county road, for the beginning of this description, from whence a 8"x8" concrete monument found for the East Quarter corner of said Section 1248, bears South 88°00'05" East, a distance of 30.00 feet and North 1 °49'03" East, a distance of 1936.73 feet, said point of beginning having a project coordinate of Y = 7172006.60 and X = 1050959.00; Thence North 65°10'36" West, along the centerline of said Sixty -Fool (60') wide permanent pipeline easement, a distance of 2863.08 feet to a %z" iron rod with cap, set on the West line of the Southeast Quarter, for the end of this description, whence a 4"x4" concrete monument found for the Northwest corner of the Southeast Quarter, bears North 1°54'54" East; a distance of 801.68 feet. Containing 173.52 rods. (3.94 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 3.94 acres of land, The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 30 — Jack (Mike) Gricia (E.B. Murphy) FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in a 209.3 acre tract of land out of Section 1248, P.B. Hall Survey, Garza County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the South line of the Northwest Quarter of Section 1248, for the beginning of this description, from whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter corner of said Section 1248, bears North 870 59' 15" West, a distance of 753.91, said point of beginning having a project coordinate of Y = 7174076.91 and X = 1046477.69; THENCE along the arc of a curve to the left and being along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 51.64 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 51, 08'43"; THENCE North 650 10' 36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 735.21 feet to a 1/2" iron rod with cap, set on the East right-of- way line of a sixty -foot (60') county road, for the end of this description, whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter of Section 1248, bears w� C:� fT U0 G� UV North 87° 59' 15" West, a distance of 30.00 feet and South 10 55' 51" West, a distance of 307.16 feet. Containing 47.69 rods (1.08 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 1.26 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Parcel No. 40 — Cecil Stolle FIELD NOTES describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southwest Quarter of Section 1263, J.H. Gibson Survey, Lynn County, Texas, and said pipeline centerline being described as follows: BEGINNING at a 1/2" iron rod with cap, set on the North right-of-way Ilne of a sixty -foot (60') county road, for the beginning of this description, from whence a 8"x8' concrete monument found for the Southeast corner of the Southwest Quarter of said Section 1263, bears South 21 00' 08" West, a distance of 30.00 and South 880 00' 01" East, a distance of 244.76 feet, said point of beginning having a project coordinate of Y = 7182520.75 and X = 1032554.67; THENCE North 460 35' 11" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 3155.21 feet to a 1/2" iron rod with cap, set on the East right- of-way line of sixty -foot (60') county road, for the end of this description, whence a 4"x4" concrete monument found for the Northwest corner of the Southwest Quarter of Section 1263, bears North 88° 00' 11" West, a distance of 30.00 feet and North 1° 59' 53" East, a distance of 524.47 feet. Containing 19'7.22 rods (4.35 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the survey plat and said temporary construction easement contains 4.51 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Resolution No. 2010—RO163 CONTRACT FOR PURCHASE OF EASEMENT This Contract For Purchase of Easement (the "Contract") is made on this day of , 2010 ("Effective Date"), by and between E.B. Murphy, as his sole and separate property, (referred to herein as "Seller") and the City of Lubbock, Texas, a Texas home rule municipal corporation (referred to herein as "Buyer"). RECITALS WHEREAS, Seller owns the Easement Area (as defined in the Easement Agreement (the "Easement Agreement") attached hereto as Exhibit A) and the Temporary Easement Area (as defined in the Easement Agreement) (the Easement Area and the Temporary Easement Area shall be collectively referred to herein as the "Easement Area"); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a permanent and a temporary easement (collectively, the "Easement") over, across and upon the Easement Area and the Temporary Easement Area in accordance with the terms of the Easement Agreement. ARTICLE I SALE OF EASEMENT For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Easement and all rights incident thereto as described in the Easement Agreement attached hereto and incorporated herein for all purposes. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 101 Purchase Price. The Purchase Price to be paid to Seller for the Easement described herein is Dollars ($__) (the "Purchase Price") which amount is the sum of the amounts set forth in Paragraph 12 (i), (ii) and (iii) of the Easement Agreement. 2.02 Independent Contract Consideration. Within seven (7) business days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of this Contract. The Independent Contract Consideration is to be credited against the Purchase Price at closing, if Closing (as identified below) occurs. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Within sixty (60) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Buyer and to Seller and to Seller's legal counsel a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by West Texas Title Company ("Title Company") setting forth its exceptions to title ("Exceptions") and copies of any such Exceptions. 3.02 Survey. Buyer, at Buyer's sole cost and expense, has previously caused a current on the ground survey for the Property (the "Survey") to be delivered to Buyer. Within fifteen (15) days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Seller a copy of the Survey. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of ten (10) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Obiections"), if any. Buyer acknowledges and agrees that the Easement will be subject to (A) all items disclosed on Exhibit F to the Easement Agreement, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property, (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rights -of -way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date (the foregoing, together with any exceptions to title that are accepted or waived by Buyer in accordance with Section 3.04 shall be referred to herein as the "Permitted Exceptions"). 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies Seller of Objections to any of the matters fumished to Buyer pursuant to Section 3.03, the Seller shall, within ten (10) calendar days after Seller is provided notice, either to satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. If Seller is unwilling or unable to satisfy the Objections within such ten (10) calendar day period, Buyer or Seller may at its option extend the cure period up to an additional fifteen (15) days or Seller may inform Buyer that Seller is unable or unwilling to cure the Objections. If the Objections remain unsatisfied, and if Buyer and Seller do not agree in writing to an extension of that period, then Buyer has the option of either: (i) waiving the unsatisfied Objections by, and only by, notice in writing to Seller within five (5) calendar days after the expiration of the cure period, in which event those Objections shall become Permitted Exceptions; or (ii) terminating this Contract by notice in writing and receiving back the Independent Consideration, in which Latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract, except as provided in Section 3.06 below. 3.05 Title Policy. At Closing, Buyer, at Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy°) to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has an easement pursuant to the Easement Agreement over and across the Easement Area, subject only to the Permitted Exceptions and the terms of the Easement. The Title Policy mq, contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows: (i) if available based upon the Survey, the survey exception may be amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (ii) no exception will be permitted for "visible and apparent easements" or words to that effect; (m) no exception will be permitted for "rights of parties in possession" (provided that any inspection fees or expenses required by the Title Company to delete this exception shall be paid by Buyer); (iv) no liens will be shown on Schedule B, unless the holder thereof has subordinated its lien rights to the Easement. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exceptions it deems material, in its sole discretion. 3.06 Other Remedies. Notwithstanding anything contained in this Contract to the contrary, if Buyer determines that the easement intended to be conveyed to Buyer and described herein and in the Easement Agreement, or any part thereof or undivided interest therein, should be acquired by judicial procedure to procure good title, then Buyer and Seller hereby stipulate that (i) an agreement, in the same form as the Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Seller for the easement obtained by Buyer by judicial procedure, shall be the same as the consideration stated in Section 2.01 above and in Paragraph 12 of the Easement Agreement, but should the Seller own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Buyer and described herein, such award shall not exceed that portion of the consideration stated in Paragraph 12 of the Easement Agreement which the value of such lesser interest of Seller bears to the value of the entire Easement Area or Temporary Easement Area described herein. This Section 3.06 shall survive any termination of this Contract. ARTICLE IV COVENANTS AND AGREEMENTS 4.01 Covenants and Agreements of Seller. Seller represents and warrants that to Seller's knowledge and subject to the Permitted Exceptions Seller has good and indefeasible title to the Easement Area and further covenants and agrees with Buyer as follows: (a) Seller represents that to the best of its knowledge Exhibit F to the Easement Agreement, when prepared and delivered by Seller, will set forth a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject property, and (III) all unrecorded easements granted by Grantor which encumber the subject property. Seller will provide to Buyer within thirty (30) days after Seller's receipt of a copy of the Title Commitment, copies of all documents to be described in the Easement Agreement on Exhibit F that are not reflected in the Title Commitment. Buyer shall have ten (10) days after receipt of such documents to object to any matters set forth therein that are not contained in the Title Commitment. Thereafter, Buyer and Seller shall have the same objection and cure rights with respect to such objections as are set forth in Section 3.04. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall not sell, assign, or convey any right, title or interest whatsoever in or to the Easement Area, or create any lien, encumbrance, or charge thereon. ARTICLE V CLOSING 5.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company. The Closing Date (herein sometimes called), shall be on the earlier to occur of (i) the date that is ninety (90) days after the Effective Date; or (ii) such earlier date as mutually agreed on by Seller and Buyer. However, the closing date as identified herein may be extended by either party for a period of thirty (30) days in orderto comply with the time limits contained in Article III and Article IV. 5.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to the Title Company the following items: (I) An Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Seller and acknowledged; and (b) Buyer. At the Closing, Buyer shall deliver the Title Company, or obtain for itself, the following items: - (I) The sum required by Section 2.01 in the form of immediately available funds to be paid immediately to Seller; (ii) The Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Buyer and acknowledged; and (iii) The Title Policy in the form specified in Section 3.05; Both Buyer and Seller shall deliver other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. ARTICLE VI DEFAULTS AND REMEDIES 6.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Seller fails to meet, comply with or perform any covenant, agreement, or obligation on Seller's part required within the time limits and in the manner required in this Contract, or (ii) Seller fails to deliver at Closing, the items specified in Section 5.02(a) of this Contract for any reason other than a default by Buyer under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If 6.01(a) occurs, Buyer may: (1) terminate the Contract and receive the Independent Consideration as Buyer's sole and exclusive remedy, or (ii) enforce specific performance. 6.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract on the occurrence of any one or more of the following events: (i) Buyer fails to meet, comply with or perform any covenant, agreement, or - obligation on Buyer's part required within the time limits and in the manner required in this Contract, or (ii) Buyer fails to deliver at Closing, the items specified in Section 5.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedies. If 6.02(a) occurs, Seller may: (i) terminate the Contract and retain the Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific performance. ARTICLE VII MISCELLANEOUS 7.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: E.B. Murphy 3200 Maxwell Midland, TX 79705-4824 Copies to: For Seller: John C. Cox, Esq. K&L Gates, LLP 1717 Main, Suite 2800 Dallas, Texas 75201 Telecopy: (214) 939-5849 BUYER: Attn: Dave Booher City of Lubbock 162513th Street Lubbock, Texas 79401 Telecopy: (806)775-3074 For Buyer: Attn: Marsha Reed City of Lubbock 162513th Street Lubbock, Texas 79401 Telecopy: (806)775-2051 The parties may change their address effective in the same manner as other notices provided hereunder. 7.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN THE COUNTY WHERE THE PROPERTY IS LOCATED. 7.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Easement, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 7.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 7.05 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. 7.06 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 7.07 Agreement in Lieu of Condemnation. This Contract and the Easement Agreement are entered into by Buyer and Seller as a settlement and compromise lieu of condemnation and the consideration set forth herein and the covenants and agreements of the Buyer set forth in the Easement Agreement are given to Seller in compensation for the acquisition of the Easement in accordance with the Easement Agreement. This Section 7.07 shall survive Closing and the execution and delivery of the Easement Agreement. 7.08 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City Council of the City of Lubbock to the Deputy City Manager of Buyer, or his designee. When the context requires, singular nouns and pronouns include the plural. The undersigned represent and warrant their respective authority to execute this contract, and to convey the interest in property described herein. Executed by Seller on the day of 2010. Executed by Buyer on the day of SELLER: E.B. MURPHY, as his sole and separate property 2010. BUYER: CITY OF LUBBOCK TOM MARTIN, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Ryan J. Bigbee, Attorney for the City of Lubbock Exhibit A to Contract of Sate EASEMENT AGREEMENT SEE ATTACHED EASEMENT AGREEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF § Subject to the terms and conditions set forth in this Easement Agreement (this "AAgreement"}, E.B. Murphy, as his sole and separate property ("Grantor") whose address is 3200 Maxwell, Midland, TX 79705-4824 for and in consideration of the covenants contained herein and other good and valuable consideration to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 1P Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, hereby grants unto Grantee an easement (the "Easement") subject to the terms of this Agreement through, over, under, upon, across and within the sixty foot (60') wide area described by metes and bounds on Exhibit A (the "Easement Area") situated in Garza County, Texas: The Easement shall be for the survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of (i) a single underground pipeline located within the Easement Area for the transportation of fresh water (the "Pipeline"), and (ii) the following equipment and appurtenances related to the Pipeline and situated within the Easement Area: conduits, drain (blow -off) valves, valve boxes, meter boxes, vents (air valves), manholes, manhole covers (with post around manholes), corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep well anode stations with power supplies, flow meters, system communication lines (including, but not limited to, fiber optic lines), splice boxes, and corrosion control equipment, corrosion monitoring equipment and other equipment and facilities related thereto (collectively, the "Pipeline FA ')(the Pipeline together with the Pipeline Equipment shall be collectively referred to herein as the "Pipeline System"). Further, Grantor hereby grants unto Grantee a temporary construction easement (the "Temporary Easement") for the construction and installation of the Pipeline System over an area sixty feet (60') in width located adjacent to, and abutting, the Easement Area (the "Temporary Easement Area") on the northeast side of the Easement Area as more specifically described on Exhibit A. The Temporary Easement shall terminate and expire upon the earlier of (i) completion of all construction activities related to that portion of the Pipeline System situated within the Easement Area, or (ii) June 30, 2014 (the "Anticipated Pipeline Completion Date"). In the event that the Pipeline System within the Easement Area has not been completed by the Anticipated Pipeline Completion Date, Grantee shall have the option to extend the term of the Temporary Easement for up to two consecutive periods of two (2) years each with the first extension to commence on the Anticipated Pipeline Completion Date and the second extension to commence on the second anniversary of the Anticipated Pipeline Completion Date; provided, however, that the Temporary Easement shall in any event terminate and expire upon the completion of the Pipeline System within the Easement Area and thereafter be of no further force and effect.. In order to exercise its right to extend the Temporary Easement as aforesaid, not later than thirty (30) days prior to the Anticipated Pipeline Completion Date (or the second anniversary of such date if the Temporary Easement has already been extended) Grantee shall deliver to Grantor written notice that it intends to extend the Temporary Easement and pay to Grantor of the sum of $ ** 10% of the amount in paragraph 12(1) below**] for each requested two (2) year extension. Upon request of Grantor, after completion of that portion of the Pipeline System situated within the Easement Area, or the termination and expiration of the Temporary Easement, Grantee shall execute and deliver to Grantor a release of the Temporary Easement in a form acceptable for filing. The Easement and Temporary Easement are specifically made by Grantor and accepted by Grantee subject to the following terms, covenants, obligations and conditions: 1. Permitted Uses. Grantee may use and occupy (a) the Easement Area for the sole purpose of (i) survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline and Pipeline Equipment; (ii) the construction, installation, maintenance and repair of a pipeline trail road within non -cultivated areas of the Easement Area, and (iii) ingress, egress and regress for people, material, and equipment along, over and across the Easement Area to accomplish the purposes stated in paragraph 1(a)(i) provided that after completion of construction of the Pipeline System situated within the Easement Area, and except in cases of emergency or repair, on cultivated land ingress, egress and regress shall be permitted in, but limited to, the use of then -existing turn rows, and (b) the Temporary Easement Area (during the term thereof) for the sole purpose of (i) survey, construction and installation of the Pipeline and Pipeline Equipment; (ii) ingress, egress and regress for people, material, and equipment along, over and across the Temporary Easement Area to accomplish the foregoing, and (c) during the term of the Temporary Easement, the Easement Area and the Temporary Easement Area may be used for the temporary storage of materials and equipment (including pipe for the Pipeline and Pipeline Equipment) (collectively, the "Permitted Uses"). Grantee shall use the Easement Area and the Temporary Easement Area (for the term thereof) for the Permitted Uses, and activities reasonably related thereto, and for no other purposes or uses. 2. Legal Requirements, No Interference. Grantee covenants and agrees that its use of the Easement Area and Temporary Easement Area, and its operations conducted thereon, shall at all times comply with this Agreement and all material applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all material environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and the safety guidelines shown on Exhibit S attached hereto and made a part hereof. Further, Grantor and Grantee shall each conduct their activities in such a manner as to not unreasonably interfere with, or cause disruption to, the other's business, operations and property or those of a third party entering or crossing the easement. 3. Due Care. Grantee covenants and agrees to construct the Pipeline System, and to perform its obligations under this Agreement, in a prudent manner and with due professional care for Grantor's property, business and operations, and according to standard industry practices. 4. Construction Specifications. Grantee covenants and agrees to construct, maintain, repair and replace the Pipeline System in the Easement Area in accordance with the following: (a) Minimum Pipeline Depth. The Pipeline System shall be so located or shall be buried at a sufficient depth so it will not interfere with fanning activities currently in practice and cultivation of the soil at the soil levels as they exist at time of execution of this Easement and, in any event, the Pipeline shall be buried at such depth as will allow a minimum coverage of forty-eight inches (48") for current ranchland and a minimum coverage of sixty inches (64") for current farmland. Any Pipeline Equipment that will be installed above plow depth on cultivated lands shall only be installed at the locations identified on Exhibit C or, if no locations are specified on Exhibit C, at such other locations that will not interfere with farming activities and which are approved in writing by Grantor, such approval not to be unreasonably withheld. (b) Ditching. Unless determined by an outside engineer to be impractical due to the existence of rock or material elevation change, all ditching shall be in accordance with the "double ditch" method whereby the top eighteen inches (18") of soil (the "Top Soil") shall be removed from the Pipeline trench (the "Trench") and stored in a pile that is segregated from all other material and debris, and the remaining soil (the `Bottom Soil") shall be removed from the Trench and stored in a pile that is segregated from the Top Soil. When the Trench is refilled after the Pipeline has been laid and the Pipeline Equipment installed, the Bottom Soil shall be placed in the trench first leaving room to fill the uppermost eighteen inches (18") of the Trench to be filled with Top Soil. Top Soil shall be used to fill the remainder of the Trench. Any Bottom Soil remaining after filling the Trench shall (i) on cultivated lands, be removed from the Easement Area and disposed of off of the property of Grantor, and (ii) on uncultivated lands, shall be spread over the Easement Area and Temporary Easement Area in a manner acceptable to Grantor and that will not restrict or limit the re -growth of natural vegetation. Rocks or other debris arising in connection with clearing the Easement Area and ditching the Trench for the Pipeline System shall be removed as set forth in Paragraph 4 (h) below. As stated above, single ditching shall be allowed in all areas where "double ditching" is impractical (as determined by an outside engineer) due to the existence of rock or material elevation change. (c) Trench Leveling. Within uncultivated areas, upon completion of construction of the Pipeline System, excess material may be mounded over the Trench and covered with Top Soil; provided that the mound will be limited to a maximum of one foot (1') in height and will be graded to allow natural drainage. Within cultivated areas, upon completion of construction of the Pipeline System, the Easement area shall be leveled to grade (or as otherwise agreed to by Grantor in writing). In all instances the Easement Area and Temporary Easement Area shall be cleaned up in a professional manner. (d) Maximum Oven Segments. The construction, installation, maintenance and repair of the Pipeline System shall be performed in segments so that there is never more than one thousand feet (1000') of open Trench at any one time and no open segment shall be open for more than seven (7) days; provided, however, that excavations for pipeline appurtenances and tunnel/bore crossings may remain open for up to thirty (30) days. (e) Com acp tion. Grantee shall mechanically compact all fill material to prevent any subsidence. To the extent there exists or hereafter arises any subsidence or erosion arising in connection with the construction, installation, maintenance or repair of the Pipeline System, Grantee shall refill with top soil, re - compact and re -grade all affected areas and take any further action reasonably required to return the surface to a substantially similar, or better, condition than adjacent undisturbed areas and prevent future subsidence or erosion. In furtherance of the foregoing, Grantee shall inspect the Pipeline at an interval of (i) six months, (ii) twelve months, and (iii) eighteen months after initial Pipeline System construction, and promptly refill and re -compact any subsidence or erosion existing at such times in order to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and take any further action reasonably required to prevent future subsidence or erosion. The inspections periods set forth above are not intended to be a limitation on Grantee's ongoing duty to fill, compact and maintain the grade of the land around the Pipeline. Accordingly, in the event that Grantor at any time discovers any subsidence or erosion after the installation of the Pipeline (whether before or after expiration of the inspection periods provided for above), Grantor may provide notice of such subsidence or erosion to Grantee. Within thirty (30) days' after Grantee's receipt of such notice, Grantee shall commence and thereafter diligently and without unreasonable delay refill with top soil, re -compact and re -grade all affected areas and take any additional action as may be reasonably required to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and to prevent future subsidence or erosion. (f) Disc Plowing. If requested by Grantor, after completion of construction of the Pipeline the top 6 to 12 inches of the Easement Area and Temporary Easement Area through cultivated fields shall be disc plowed to loosen up soil for farming operations. (g) Gates. Grantee shall install gates at each existing fence to be crossed within the Easement Area and the Temporary Easement Area in order to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, Grantee will set H-braces on the outside boundaries of the Temporary Easement and Easement Area (e.g. 120 feet apart) then tie -off and cut the fence adjacent to each H-brace. The Grantee shall then set temporary T-pasts and string barbed wire along the 120 foot opening and install a temporary barbed wire gate or gates, as needed. At the time of construction through the affected area, the Grantee will remove the temporary T-posts so as to permit construction activities. At night, Grantee will install temporary fencing. Upon completion of the subject Pipeline section, Grantee will install interior H-braces and a permanent 14 foot gate(s). Grantee will then install permanent T-posts and barbed wire to connect the H- braces. Fences, gates, gate posts and corners installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made apart hereof and shall be installed with professional care and according to standard industry practices. All gates installed by Grantee shall be made of painted steel pipe. Except during construction as described above, all fence gates on the exterior of Grantor's property shall be closed and locked at all times, unless Grantor in its sole discretion consents to temporary cattle guards or other arrangements. All gates on the interior of Grantor's property shall be left as found. All cattle guards on the exterior of Grantor's property shall be closed and locked at night unless otherwise requested by Grantor. After construction, Grantee shall put a lock on all gates and Grantor may install its own lock on such gates; provided, however, that at all times Grantor and Grantee shall have full and complete access to the Easement Area. (h) Debris Removal. Grantee covenants and agrees that at Grantee's sole cost and expense any and all debris materials of any kind arising in connection with the construction, installation, operation, inspection maintenance, replacement, repair and removal of the Pipeline System, including trash, trees, timber, wood, bushes, shrubs and brush, and other debris materials (collectively, "debris"), shall be removed by Grantee from Grantor's property and disposed of properly so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Further, all rocks and rubble arising in connection with the construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline System will be removed from Grantor's property so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Notwithstanding the foregoing, Grantee and Grantor by mutual agreement may determine that (i) Grantee may shred or mulch trees, timber, wood, bushes, shrubs and brush and scatter such debris over Grantor's property, (ii) Grantee may burn trees; timber, wood, bushes, shrubs and brush, (iii) Grantee may store or scatter rocks and rubble at locations designated by Grantor, or (iv) any other reasonable method to dispose of trees, timber, wood, bushes, shrubs, brush, rocks and rubble. If any trees, timber, wood, bushes, shrubs and brush are burned on site, the Grantee shall maintain constant watch over burn piles with adequate firefighting equipment on site. Grantee further agrees that neither Grantee nor its employees, contractors, agents nor representatives will burn any trees, timber, wood, bushes, shrubs or brush cleared from the Easement Area or the Temporary Easement Area during burn bans designated by county officials. (i) Temporary Crossings. During construction of the Pipeline System, crossovers shall be installed by the Grantee over the Trench to provide access for Grantor (and Grantor's personnel, equipment and livestock) over the Trench to and from Grantor's adjacent property (i) over all existing paved or unpaved roads, (ii) for livestock (at no less than 500 foot intervals), and (iii) at such other locations as are reasonably designated by Grantor. Further, Grantee may, at Grantee's option, construct temporary fencing near any open hole or trench. 0) Reseeding. If any of the Easement Area or Temporary Easement Area consists of grassland, Grantee shall, using the recommended procedure (either via drill or broadcast), plant a native (e.g. native to the local area) seed mix of grass and fortis selected by Grantor but subject to reasonable availability. (k) Existing Terraces, Damage to Adjacent Pronertv. (i) Terraces. Existing terraces in the Easement Area and Temporary Easement Area will be replaced upon the backfill of the trench excavated in connection with the construction of the Pipeline System. In the event that the breach of any existing terrace results in any damage to Grantor's adjacent property or the breach of any down grade terraces (whether or not within the Easement Area or the Temporary Easement Area), Grantee shall repair any such damage and return the surface of affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (ii) Damage to Adjacent Prop=. In the event that the activities of Grantee (or any of its agents, employees, contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles) within the Easement Area or Temporary Easement Area result in any damage or erosion to Grantor's property located outside of the Easement Area or Temporary Easement Area, Grantee shall repair any such damage or erosion and return the surface of the affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (1) Diversions; Terraces; Stream Beds. Grantee shall install water diversions and terraces where necessary or appropriate in order to divert water away from excavated areas, to prevent erosion and to permit the natural flow of water that existed prior to construction of the Pipeline. Further, where the Easement Area crosses any wet or seasonal stream beds, all Permitted Uses shall be conducted in a recognized manner to protect said stream beds and to prevent erosion (m) Blasting. Prior to blasting within the Easement Area, Grantee will notify Grantor. However, no blasting will be permitted within five hundred feet (500') of any existing buildings, pipelines or wells; provided, however, that Grantor shall provide written disclosure of the location of any such improvements that are located underground before such blasting. (n) Trail Road. The pipeline trail road shall not exceed twelve feet (121) in width. The trail road shall be constructed, repaired and maintained in a manner consistent with Grantee's needs and purposes; provided, however, such trail road shall include culverts and water diversions where appropriate to prevent washouts and erosion. Grantee shall level or fill all ruts and washouts and otherwise maintain the trail road on a reasonable basis. Grantor shall have use of such road within Grantor's property so long as Grantor's use does not unreasonably interfere with Grantee's use of. the Easement Area and Temporary Easement Area. After completion of the construction of the Pipeline System and except in cases of emergencies, in order to avoid ruts and washouts, Grantee and Grantor shall use reasonable efforts to avoid the use of the trail road when wet. (o) Necessary Temporary Use. Grantee shall have the right to use Grantor's property located immediately adjacent to the Easement Area and Temporary Easement Area for the following: (i) On rangeland, detouring around natural impassable impediments within the Easement Area or Temporary Easement Area such as canyons, large boulders or large trees; or (ii) the repair and removal of equipment or vehicles stranded within the Easement Area or Temporary Easement Area, but only to the extent is there not sufficient area within the Easement Area and Temporary Easement Area to permit such repair and removal. Except as provided in this Paragraph 4(o), Grantee (and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them) shall not at any time go upon the property of Grantor outside of the Easement Area and Temporary Easement Area. To the extent that any such incursion upon the lands of Grantor adjacent to the Easement Area and Temporary Easement Area results in any damage to such lands, Grantee shall be liable for such damage and in any event covenants and agrees that the affected areas shall be returned to the condition that is substantially similar to, or better than, adjacent undisturbed areas. (p) Staking of Easement. Prior to commencement of construction of the Pipeline System, Grantee shall stake the exterior boundaries of each side of the combined Easement Area and Temporary Easement Area (e.g. the parallel lines, 120 feet apart, that mark the outside boundaries of the combined 60 foot Easement Area and 60 foot Temporary Easement Area). Such boundary shall be staked with clearly visible, above ground markers so that all parties can easily view the boundary of the easements. Such markers shall be maintained until completion of construction of the Pipeline System. (q) Tree Grubbing. Upon commencement of work on the construction of the Pipeline System (and prior to trenching), Grantee shall grub (using an excavator modified to grub mesquite) all mesquite within the Easement Area and shall also grub any mesquite that has been destroyed, damaged, bladed, or cut within the Temporary Easement Area. At its option Grantee may grub the entire Temporary Easement Area. All debris arising as a result of grubbing activities will be disposed of in accordance with Paragraph 4(1) above. Grantor acknowledges that Grantee is not liable for any re -growth of vegetation after any tree grubbing identified in this Paragraph 4 (q) or after any double ditching as identified in Paragraph 4 (b) and that re -growth of vegetation will occur over time. 5. Cure Period. In the event that Grantee is in violation of any of the terms of this Agreement, Grantor shall give written notice of, and an opportunity to cure such violation to Grantee. Grantee covenants and agrees within thirty (30) days of receipt of such notice to commence to cure, and thereafter diligently and without unreasonable delay pursue to cure, such violation; provided, however, that the cure of any subsidence or erosion will be completed within one hundred and twenty (120) days after receipt of such notice to commence to cure. 6. Record Drawings To Be Provided to Grantor. Upon completion of the construction of the Pipeline System, Grantee shall, at Grantee's sole cost, provide to Grantor record drawings showing the location within the Easement Area of the Pipeline and each item of Pipeline Equipment. 7. Abandonment of Easement. Grantee may abandon the Pipeline System solely by an ordinance adopted by the City Council of The City of Lubbock, Texas (or any successor governing body of The City of Lubbock Texas) that authorizes the abandonment of the Pipeline System. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Easement Area is located. If Grantee should abandon the Pipeline System as aforesaid, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns, and title to the Pipeline System located within the Easement Area shall revert to Grantor, its successors and assigns and Grantor may, at its option, remove, dispose of and/or sell any pipe or Pipeline Equipment within the Easement Area. 8. Easement Term. The "Easement Term" is hereby defined as the period of time beginning with the Effective Date (hereinafter defined) and continuing until such time that the Pipeline System is abandoned by Grantee as provided in Paragraph 7 above. 9. Covenant to Maintain Pipeline. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, exercise due care and diligence in the use of the rights and privileges herein granted and keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement Area in good order, condition and repair and free of all debris following any work related to Permitted Uses on the Pipeline System. 10. Permits. Grantee shall be responsible for obtaining all permits necessary for Permitted Uses within the Easement Area and the Temporary Easement Area. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality relating to the Pipeline System and this Agreement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 11. Additional Uses. Subject to the limitations set forth in this paragraph, the Easement is non-exclusive and Grantor shall at all times have the right to (i) use and enjoy the Easement Area for any purpose not specifically prohibited herein; (ii) grant easements and rights of way over, under, upon, across and within the Easement Area to such persons as Grantor deems proper; (iii) construct and maintain improvements upon the Easement Area; and (iv) construct and maintain irrigation systems (including drip and overheard irrigation systems) and components and water distribution lines to cultivate and service Grantor's property (including the Easement Area), provided, however, (A) no buildings. or reservoirs may be constructed upon the Easement Area, (B) improvements (other than drip irrigation lines and overhead irrigation equipment) may not parallel the Pipeline within the Easement Area, (C) all power lines, pipelines (other than drip irrigation lines and overhead irrigation systems), and telephone and other telecommunication lines must cross the Easement Area at no less than a 45' (forty-five degree) angle, (D) underground power lines and any metallic pipelines (excluding irrigation water lines and water distribution lines used to service Grantor's property) must have a minimum separation of two feet (2') from the Pipeline and must meet industry standards in order not to adversely affect or damage the Pipeline, and (E) fences constructed by Grantor within the Easement Area must have gates installed so that Grantee at all times has access over and across the Easement Area. In the event that Grantor determines to construct (or grant the right to any third party to construct) improvements within the Easement Area that are not addressed above, Grantor shall provide not less than thirty (30) days prior written notice to Grantee during which time Grantee may have the proposed improvements analyzed by its outside engineers. If during such thirty (30) day period Grantee provides to Grantor a detailed analysis of why the proposed improvements will adversely affect the Pipeline or Pipeline System, Grantor shall not construct such improvements until such time as Grantor and Grantee's engineers agree upon a methodology for the construction of such improvements that will not adversely affect the Pipeline, such agreement not to be unreasonably withheld by either Grantor or Grantee. Grantee and Grantor will at all times use their good faith efforts to accommodate the needs and activities of one another. Grantee covenants and agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not unreasonably interfere with or endanger the operations or integrity of the Pipeline System. Grantee acknowledges and agrees that if the Easement Area is subject to one or more oil and gas leases in existence as of the Effective Date of this Easement, or if Grantor does not own the minerals under the Easement Area, Grantor does not have control over and is not responsible for, or liable for, compliance (or non-compliance) with this Paragraph 11 by any oil and gas lessee or mineral owner(s). 12. Compensation for Grant of Easement. As complete consideration for the execution and delivery of this Agreement by Grantor, contemporaneously with the execution hereof by Grantor the Grantee agrees to pay to Grantor (i) the sum of Eighty - Five Dollars ($55.00) per rod for a total of Four Thousand Fifty -Three and 65/100ths Dollars ($4,053.65) for the grant of the Easement and the grant of the Temporary Easement, (ii) the sum of ($ } for damage to, or the replacement of, machinery and equipment (including irrigation systems and equipment) and other personal property specified on Exhibit E, and (iii) the sum of for damage to crops. In the event that as a result of the time of year in which construction of the Pipeline will occur Grantor (or its lessee) will suffer crop losses for two consecutive years, prior to commencement of construction (or, if construction has already commenced, but was delayed or extended, prior to continuation of construction) Grantee shall pay to Grantor an additional sum for crop losses in the amount specified in item (iii) above. The foregoing consideration constitutes payment to Grantor and Grantor's successors, assigns, or agricultural lessees or tenants, if any, for the grant of the Easement and Temporary Easement and for damage to the specified equipment, machinery and crops resulting from the initial construction and installation of the Pipeline System. The market value of any damaged crop shall be calculated using the following formula: Affected Acres X Yield Per Acre X Unit Price for the affected crop = damages to be paid, where (i) the amount of the affected acreage will be reasonably determined by the Federal Farm Service Agency in the county where the premises is located, or if the Federal Farm Service Agency fails or refuses to make such calculation, as reasonably determined by Grantor, (ii) yield per acre will be the average of the previous three (3) years' yields according to the Grantor's (or Grantor's lessee's) records for the affected parcel, but if the Grantor (or Grantor's lessee) does not have yield records available, the parties will use Federal Farm Service Agency records or other commonly used yield information available for the area, and (iii) unit price will be based upon the average of the last previous March Pt and September 1" prices for the affected crop as set by the Chicago Board of Trade, New York Cotton Exchange, Kansas City Board of Trade, or other similar exchange, as appropriate for the affected crop. Notwithstanding the foregoing, the Parties hereto agree that the unit price for damages to cotton crops shall be $0.52 per pound. 13. Title. (a) Grantee acknowledges that at its sole cost and expense it has researched the title to the Easement Area and the Temporary Easement Area and, where it deemed it necessary, obtained abstracts or certificates of title or title insurance to such property. Grantor represents that to the best of its knowledge set forth on Exhibit F is a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject property, and (iii) all unrecorded easements granted by Grantor which encumber the subject property. Grantor will provide Grantee, at least thirty (30) days prior to the execution of this Agreement, with all documents identified and to be attached hereto as Exhibit F. The grant of the Easement herein contained is subject to (A) all items disclosed on Exhibit F, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property (which Grantor understands that Grantee has received and reviewed), (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rights -of -way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Elective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date. It shall be the obligation of Grantee to procure and have recorded without cost to Grantor all assurances of title and affidavits which Grantee determines are necessary and proper to show in Grantor title sufficient to grant this Easement. The expense of recording this Agreement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, at no expense to Grantor, to obtain any curative documents needed to the extent such cure would not affect Grantor's title. (b) If Grantee or Grantor determines that the easement intended to be conveyed to Grantee and described herein, or any part thereof or undivided interest therein, should be acquired by judicial procedure, either to procure good title or for any other reason, then Grantor and Grantee hereby stipulate that (i) an agreement, in the same form as this Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Grantor for the easement obtained by Grantee by judicial procedure, shall be the same as the consideration stated in Paragraph 12, but should the Grantor own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Grantee and described herein, such award shall not exceed that portion of the consideration stated in Paragraph 12 which the value of such lesser interest of Grantee bears to the value of the entire Easement Area or Temporary Easement Area described herein. 14. Recreation; Firearms; Hunting; Fishing; Dogs; Artifacts. At no time shall Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them (i) enter upon the Easement Area or Temporary Easement Area for sightseeing or other recreational purposes, all access being limited to Permitted Uses, (ii) kill or remove' from the Easement Area any plants (other than in connection with Permitted Uses) or any reptiles, fish, birds or animals or any artifacts (including arrowheads) or ether archeological items of any kind, (iii) bring upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor) any firearm (whether rifle, pistol, shotgun), bow of any type, arrow, trap, snare, net, fishing rod, or any other means whatsoever of taking wild game, fish or fowl, (iv) hunt, fish or trap upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), (v) bring dogs upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), or (vi) subject to the provisions of Paragraph 4(o) above, enter upon any part of the land of Grantor outside of the Easement Area or the Temporary Easement Area, or (vii) take any photographs in the Easement Area except in connection with Permitted Uses and for no other purposes, it being understood and agreed that all commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. Any person in violation of the foregoing shall be a trespasser and Grantee covenants and agrees not to interfere with the prosecution of any person accused of the foregoing and to prohibit any such person from thereafter going upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). Grantee consents and agrees that Grantor shall have the right at any time to inspect the interior of any vehicle brought upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). The Grantee shall include a covenant similar to the above in all contracts with any contractors having access to the Easement Area or the Temporary Easement Area. 15. Gender, Plural. Words of any gender used in this Agreement shall be held and construed to include aiy other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 16. Indemnity. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor and Grantor's family, officers, agents, servants, employees, representatives, contractors, independent contractors, and subcontractors (each, an "Indemnitee") harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs; collectively, the "Covered Losses"), that may be suffered or incurred by an Indemnitee, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement Area or the Temporary Easement Area after the Effective Date to the extent arising in whole or in part out of or in connection with any negligence or willful misconduct of Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles. When any losses, claims, demands, or causes of action of the types described above are the result of joint or concurrent negligence or willful misconduct of Grantee and Grantor or their respective employees, contractors or agents, it is understood and agreed that Grantee's indemnity obligations shall be effective and shall cover all such losses, claims, demands, or causes of action notwithstanding any negligence on the part of Grantor or Grantor's, employees, contractors (including independent contractors and subcontractors), agents or invitees. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the Easement and/or any rights granted hereunder, and Grantor shall be solely limited to the remedy of money damages for such claims. 17. Indemnity Regarding Pollution. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold each Indemnitee harmless from and against all Covered Losses of whatsoever nature arising from pollution or contamination emanating from the Pipeline System (the "Grantee pollution liabilities"); provided, however, that "Grantee pollution liabilities" shall exclude any pollution liabilities arising from any condition existing before the effective date of this Agreement. Grantor hereby releases Grantee from and against all Covered Losses of whatsoever nature arising from (i) pollution emanating from the property and equipment of Grantor, (ii) any condition existing before the Effective Date, (iii) pollution or contamination migrating or having migrated on, under, or to the Easement Area from any other location, and (v) the possession, occupation or use by Grantor (or any third party under rights granted by Grantor) of Grantor's property. 18. Insurance. During the construction and installation of the Pipeline System, Grantee shall maintain, or cause its primary contractor to maintain, comprehensive generally liability insurance in the amount of $1,000,000 and umbrella liability insurance in the amount of $2,000,000, covering "all risks" associated with the Permitted Uses of the Pipeline during construction and installation of the Pipeline System. Upon request Grantee shall provide a copy of such policies, and all renewals and replacements thereof, to Grantor. 19. Easement Only. It is understood and agreed that this Agreement is not a conveyance of the fee estate for any of the Easement Area, but is only an easement through, -over, under, upon, across and within the Easement Area and the Temporary Easement Area (for the term thereof). 20. Binding Agreement; Assignment. The provisions of this Agreement shall be binding upon and inure to the benefit of Grantor and Grantee and their respective successors, heirs and assigns; provided, however, Grantee shall not assign this Easement without the prior written consent of Grantor which consent shall not be unreasonably withheld. 21. Final Agreement. This Easement and the Exhibits attached hereto contain the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. Each Exhibit attached hereto shall be a part of, and incorporated into, this Agreement. 22. Unenforceable Provisions. 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 unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 23. Notices. Any notices or demands provided to be given herein by the parties shall be in writing and sent by facsimile or email (if a facsimile or email address is provided below) or mailed by certified mail or hand delivered to the other party at the address set forth below. In addition, telephone notices described in Paragraph 26 below shall be permitted to the telephone numbers set forth below. Notice of any breach of this Agreement must be in writing and mailed by certified mail or hand delivered to the other party at the address set forth below. Each party may rely on the addresses and contact information set forth below until changed in accordance with this Agreement. If Grantee determines that Grantor has conveyed the subject property without providing contact information for the new owner, Grantee may rely on the records of the local appraisal district. Either party may change its contact information for notices to it by written notice to the other party. Any notice or demand shall be deemed to have been received the earlier of (i) three (3) days after the date of mailing, (ii) the date of actual delivery as shown by the. addressee's certification or registry receipt. or (iii) the date of hand delivery. Grantee shall provide and maintain a person for emergency contact who is available at the below telephone (or such different phone number as set forth in notice from Grantee to Grantor). Grantee: The City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Facsimile: (806)775-2051 Email: MReed@mail.ci.lubbock.tx.us Contact Person: Marsha Reed Emergency contact: Emergency phone number: Grantor: E. B. Murphy 3200 Maxwell Midland, TX 79705-4824 Facsimile: Email: Contact Person: Phone number: (_} Cell number: C__) 24. Access Notice. Telephonic notices are acceptable for notice of emergencies and for inspections of the Easement Area, however, with regard to notices of inspection if the contact person cannot be reached by telephone, written notice must be provided. Except in the event of emergencies, after completion of construction of the Pipeline the Grantee shall provide at least 24 hour prior telephonic notice to Grantor prior to accessing the Easement Area. Voice mail messages shall not constitute notice hereunder. 25. Notice to Future Users. Grantor and Grantee agree and hereby give notice to any oil, gas, mineral, water, wind or energy lessee or grantee acquiring (after the Effective Date) any interest overlying or underlying the Easement Area, that Grantee will be operating the Pipeline System and conducting Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted in the vicinity of the Easement Area which would unreasonably interfere with the operations or integrity of the Pipeline System. Further, to the extent Grantor owns the oil, gas and other minerals under the Easement Area, Grantor hereby waives the right to use the surface of the Easement .A.rea for the drilling of any oil or gas wells subject, however, to the rights of any lessee under any oil, gas and other mineral lease in existence as of the Effective Date. 26. MineralWater Reservation. Grantor reserves and excepts from this Easement and retains for Grantor and Grantor's successors and/or assigns, all rights to explore for, to drill and produce wind, water, oil, gas and other minerals of every kind and description underlying or situated beneath the Easement Area by any means whatsoever, including wells or mines directionally drilled from surface locations on nearby lands so long as no surface operations are performed on the Easement Area and so long as such operations do not interfere with or endanger the operations or integrity of the Pipeline System. 27. References to Grantee. Where appropriate in this Agreement, references to Grantee in connection with the performance of Permitted Uses shall include Grantee and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 28. Limitation on Damages. Neither party shall be liable to the other party or any of such party's affiliates in any action or claim including without limitation, any action or claim for indemnity, for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 29. Force Majeure. When a time period is specified herein for the performance by either party of its obligations hereunder (except for the payment of money), such period shall be extended by the period that such parry's performance is prevented by reason of windstorm, hurricane, tornado, flood, earthquake or other acts of God or by war, riot, insurrection or workers' strike or by the unavailability of materials (each, an act of "Force Majeure"), however, in order for either party to take advantage of the extension provided above for an act of Force Majeure, such party must give written notice to the other party within five (5) days of the commencement thereof and must immediately commence performance of its obligations when the effect of the Force Majeure event has subsided. TO HAVE AND TO HOLD said Easement, together with all and singular, the rights and appurtenances thereto in anywise belonging unto Grantee, its successors and assigns during the Easement Term, subject to the terms and conditions hereof. The effective date of this Agreement (the "Effective Date") shall be the date this Agreement is last signed by Grantor or Grantee. [ Signatures of the Parties on Next Page ] EXECUTED this day of , 2010 (the "Effective Date"). GRANTOR: E.B. MURPHY, as his sole and separate property GRANTEE: The City of Lubbock LM TOM MARTIN, Mayor [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Terry Grantham Attorney for the City of Lubbock Zach Brady Attorney for City of Lubbock John Cox Attorney for Landowner STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on , 2010, by E.B. MURPHY. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on , 2010, by TOM MARTIN, Mayor. Notary Public, State of Printed Name of Notary My commission expires: Exhibits: A - Metes and Bounds Description of Easement Area B - Pipeline Right -Of -Way Safety Guidelines C - Location of Surface Pipeline Equipment D - Gate Construction Detail and Specifications E - Equipment Covered by Damage Payment under Paragraph 12(ii) F - Unrecorded Leases and Agreements, Unrecorded Deeds of Trust and Unrecorded Easements Exhibit A Survey and Metes and Bounds Description of the Easement Area EXH1131T 'A' Page f of 2 [ n.O 7 26 N 870 58'11" W 2663.6' ................................... a 60'COUNTY ROA t { •2 1 7 FD. CONC. MON. N: L d' cD Q°Q � o�Q - c �o Lr). �o a 30.0, 6V Temporary Const. Esmt. 126 Ac. &Y Permonef ., , Easement N 870 12306, LLC Vol.290 Pg.125 C0& ''o 9• I �° 47.69 Rods - Permanent Esmt. i t1.08 Ac.- Permanent EsmN Robert Lee Mock\-P O B :s1 Voi.223 Pg.113 X-1046477,69 30 Jock (Afte) Grlgg Vol 217 P /81 i 209e3 �Go S�-GT I ON 'I 2-16 Po 0. HAW, OKVEy &AKZA GOUN11Y, fEXAS i i PD. CONC. MON. I •= Set I/2" Rod W/Cap A legal description of even survey date herewith accompanies this survey plot. Sur a on the groun -kta h M , 2009 Registered 'P�Q�essionol Land Surveyor Date=�-�=,�.+uar•n�rar>nnnrr�n 1090.4 S 87° 58'59" E N W ® E S CENTERLINE 60' EASEMENT ORG. & 01ST. CURVE DATA �1 2 N 65° 10'.. w 735.21' R= 575.00' L- 51.64' DELTA• 5° Of3'43" All Nortbngs and Eastings shown ore prgpec' c��lin vt s•.' and may be converted to Texas State PIblw i111ates, North Central Zone, NAD83 by dividing by o =sui'p 'e`.` adjustment factor of 1.0002396 Sl Alt distonces shown ore surface distances. Ct DI Bearings shown ore grid bearings based on the Texas St State Plane Coordinate System, North Central Zone, FI NAD83 Datum. This survey and ollinformation hereon is for the exclusive use of CITY OF LUBBOCK and shollnol be copied or used except for the purpose for which it is expressly furnished. this drawing and ollcopies (portiolor complete) shollbe returned to the owner upon demand. t; r = 0UU' I rrty15IUN: I PLAT DATE= 4 IT: PARKHILL, SMITH & COOPER - CITY OF LUE IN BY: B. BURROW SURVEY DATE: 3- 'EYED BY: J.M. MARTIN CHECKED BY: G. WIL' PAR30.d n NO. 35,760 SHEET Ill9SI33M ST., SuITE 202 • LLURK. 7x. 79413 t606) M-0020 • FAX (606) 792.1646 EXHIBIT "A" Page 2 of 2 PARCEL NO.30 .SACK (MIKE) GRIGG Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located' in a 209.3 acre tract of land out of Section 1248, P.B. Hall Survey, Garza County, Texas and said pipeline centerline being described as follows: Beginning at a 1/2" iron rod with cap, set on the South line of the Northwest Quarter of Section 1248, for the beginning of this description, from whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter comer of said Section 1248, bears North 87059115" West, a distance of 753.91, said point of beginning having a project coordinate of Y = 7174076.91 and X 1046477.691 Thence along the arc of a curve to the left and being along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 51.64 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 5008'43"; Thence North 65010'36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 735.21 feet to a 1/2" iron rod with cap, set on the East right of way line of a sixty -foot county road, for the end of this description, whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter of Section 1248, bears North 87059115" West, a distance of 30.00 feet and South 1055'51" West, a distance of 307.16 feet. Containing 47.69 rods. (1.08 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 1.26 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Notes: 1. A survey plat of even survey date herewith accompanies this legal description. 2. Surveyed on the ground March -May, 2009. 3. Bearings shown are grid bearings based on the Texas State Plane Coordinate System, Texas North Central Zone, Nad83 Datum. 4. All distance shown are surface distances. S. Surface adjustment factor for entire project is 1.0002396 egistered fessional Land Surveyor ,r Date: 2L)+,;.;<"„., HIGH-TECH LAND AND GPS SURVEYORS, INC. 3330 70th St., Suite 202 - Lubbock, Texas 79413 (806) 788-0020 - Fax (806) 792-1646 Exhibit B Pipeline Safety Guidelines So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the Easement, as well as applicable laws and regulations: 1. Except during construction or maintenance of the Pipeline, driving within the Easement Area is limited to use of currently established roadways, if any, and any trail roads constructed by Grantee on non -cultivated lands. 2. Smoking outside vehicles within the Easement Area or lands or premises is prohibited. 3. No firearms, drugs, or alcohol are permitted in the Easement Area and no photographs may be taken in the Easement Area except in connection with Permitted Uses and for no other purposes. All commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. 4. Pedestrians and non -motorized traffic have right-of-way over motorized traffic 5. The maximum speed limit within the Easement Area is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 6. Use horn for safety at blind corners and when passing. 7. Use established hand signals or turn indicators 8 Observe all signs including pipeline markers. 9. Come to complete stop on entering or leaving gates within the Easement Area. J.O. All persons entering the Easement Area must be fully clothed. 11. No debris or trash shall be discarded on the Easement Area or the Temporary Easement Area. Exhibit C Locations of Surface Pipeline Equipment No Text Exhibit D Gate Construction Detail and Specifications S"x9'-6" SCH, 40 PIPE W/V4" 14'" fOP PLATE -0_ 3" COLLAR 40 PIPE i' I. SCH. 12" SCH, 40 PIPE 10 PIPE i I CONCRETE f i i W-0" 2" SCH. 40 2'" SCH. 40 PIPE W GUSSET PLATE WELD ALL AROUND (TYPICAL) NOTE: ALL CONNECTIONS ARE WELDED ALL AROUND. GATE DETAIL SCALE: 1/2"=V-0" 6"x9'-6" SCH. 40 PIPE W/Y," TOP PLATE 4-^ SEE NOTE 5 SEE DETAIL "C" -11-T - SHAPE POST a !JHI W 6'-6' LONG (1.33 #IFT.) A W/ANCHOR PLATE TAIL "A" IEET ip CONCRETE TYPICAL GATE SUPPORT DETAIL SCALE: 1 /2"=P-O" 18" DIA. HOLE (TYP.) 18" OIA, HOLE (TYP.) NOTES,TFOR FFNC9S AND P46TES: 1. GATES TO BE INSTALLED AT ALL FENCE CROSSINGS, UNLESS OTHERWISE DIRECTED BY THE OWNER. 2• ALL STEEL GATES, POSTS, CROSS $RACES, ETC., SHALL BE PAINTED BLUE, 3. PROVIDE 1" LINK CHAIN AROUND GATE AND WELD TO SUPPORT POST. PROVIDE ONE HEAVY DUTY LOCK PER GATE KEYED PER OWNER'S LOCM 4. CONTRACTOR SHALL VERIFY EXACT LOCATION OF ALL GATES WITH OWNER PRIOR TO CONSTRUCTION. 5. BARBED WIRE SHALL BE i2J,i GA. GALVANIZED BARBED WIRE, MINIMUM 5 STRAND FENCE OR AS PER EXISTING FENCE, WFOCHEVER IS GREATER. WHERE EXISTING FENCE HAS PANEL FABRIC, INSTALL 39" PANEL FABRIC WITH 3 STRAND BARBED WIRE, 47" PANEL FABRIC WITH T STRAND BARBED WIRE MINIMUM OR AS PER EXISTING, VAiICHEVER IS GREATER. 6. CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONNECT TO EXISTING FENCE. PRIOR TO CUTTING EXISTING FENCE. 7. DIMENSIONS SHOWN ARE FOR FENCES CROSSING AT PERPENDICULAR ANGLE TO PIPELINE. WHERE FENCE CROSSES PIPELINE AT SKEWED ANGLE, DIMENSIONS SHALL BE INCREASED ACCORDINGLY. SWING SECTION Qi �- 4"x4" MESH WELD TO GATE FRAME I" LONG ON 6" C/C Exhibit E Equipment Covered by Damage Payment under Paragraph 12(ii) Exhibit F Unrecorded Leases, Unrecorded Agreements, Unrecorded Deeds of Trust, and Unrecorded Easements No Text MEMORANDUM OF LEASE STATE OF TEXAS COUNTY OF GARZA Resolution No. 2010—RO163 This MEMORANDUM OF LEASE ("Memorandum") is made and executed to be effective as of February 27, 2008 by and among COLLINS FARM RENTAL (collectively, and together with their successors and assigns hereunder, "Owner"), and FREMANTLE ENERGY LLC, a Delaware limited liability company (together with its successors and assigns hereunder, "Tenant"). RECITALS: A. Owner is the owner of approximately 196.6 acres of land (the "Land") situated in C Garza County, Texas, described in Schedule I attached to and made a part of this Memorandum, together with all and singular (i) the wind and air rights on or pertaining to the Land (the "Wind Rights") and (ii) all other rights, interests, privileges and appurtenances pertaining to the Land, CJ including any easements and other rights as may be necessary for ingress, egress and maintenance of the Land and any and all right, title and interest of Owner in and to adjacent roads, streets, alleys or rights -of -way (such items in clause (ii) collectively, the "Other Appurtenances"). The Land, Wind Rights and Other Appurtenances are collectively referred to herein as the "Leased Property". B. On February 27, 2008 (the "Effective Date"), Owner and Tenant entered into a Lease Agreement (the "Lease") pursuant to which Owner leased to Tenant and Tenant leased from Owner the Leased Property. C. Owner and Tenant desire to execute this Memorandum to provide constructive notice of Tenant's rights under the Lease to all third parties. NOW, THEREFORE, for and in consideration of the mutual covenants and benefits herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Tenant hereby agree as follows: Section 1. Purpose of Memorandum. The purpose of this Memorandum is to give record notice of the Lease, and of the rights created thereby, all of which are hereby confirmed. The parties, however, advise all parties acquiring interests subsequent to the date of this Memorandum, that the Lease and any and all documents executed in connection therewith, may be amended from and after the date hereof with the consent of the parties thereto, and without amendment of this Memorandum. Without limiting the generality of the foregoing, the Lease, as the same may be amended from time to time without amendment of this Memorandum, shall be binding upon all parties taking interests in the Land subsequent to the date of recordation of this Memorandum. As such, all such parties are hereby on notice that they should inquire as to the terms of the Lease as in effect from time to time, and that third parties may rely on this Page 1 of 6 BOOK 2 v S PAGE 12 9% Austin 905479v.1 Memorandum solely for record notice of the existence of the Lease and certain of the provisions thereof as of the date of this Memorandum, and not with respect to the specifics of the terms thereof as the same may be in effect from time to time. Section 2. Term of Lease. After the Development Period, the Primary Term shall be for thirty (30) years from the Production Commencement Date, unless extended or sooner terminated as provided in the Lease. Tenant may, at its option extend the Primary Term for two (2) successive periods of ten (10) years each by written notice to Owner at least ninety (90) days prior to the last day of the Primary Term (as the same may have been extended). Section 3. Purpose of Lease. The Lease is for wind energy conversion to electricity on the Leased Property and for the collection and transmission of electric power, by developing and operating wind powered electricity generating projects on the Leased Property and other property, and for related activities and such Lease includes, without limitation, the following rights and privileges for Tenant: (a) the right to develop, erect, construct, install, replace, relocate, repair, remove, maintain, operate and use from time to time, wind turbines (and the foundations, footings and other appliances and fixtures for use with such wind turbines), underground and above -ground electrical transmission and communications lines related to the Q operation of wind turbines, electric transformers, energy storage facilities, W telecommunications equipment, roads, meteorological towers and wind measurement CJ equipment, control buildings, maintenance yards, and related facilities and equipment necessary and/or convenient for the operation and maintenance of one or more wind energy projects on the Leased Property and/or other property, in accordance with the Lease; (b) the right to capture and to convert all of the wind resources of the Land; (c) the right to develop, erect, construct, install, replace, relocate, remove, maintain, operate and use the following from time to time in connection with wind energy projects, whether located on the Leased Property or elsewhere, (i) a line or lines of poles or towers, together with such wires and cables as from time to time are suspended therefrom, and/or underground wires and cables, for the transmission of electrical energy and/or for communication purposes, and all necessary and proper anchor, support structures, foundations, footings, crossarms and other appliances and fixtures for use in connection with said towers, wires and cables; (ii) one or more substations or interconnection or switching facilities from which Tenant or others that generate energy may interconnect to a utility transmission system or the transmission system of another purchaser of electrical energy; and (iii) roads associated with the foregoing (such towers, wires, cables, substations, facilities and other enumerated items in clauses (i), (ii) and (iii) are herein collectively called the "Transmission Facilities"); (d) the right in connection with the use of the Leased Property, of pedestrian and vehicular ingress, egress and access over and across the Land by means of roads and lanes thereon if existing, or otherwise by such route or routes as Tenant may construct or improve from time to time; and Page 2of6 BooK 29-PAGE 139 Austin 905479v.1 (e) any and all right of Owner to select, determine, prohibit or control the location of sites for drilling and/or exploration of minerals in, to and under the Land. Section 4. Ownership of Wind Energy Prolects. Under the Lease, Owner covenanted that, except as otherwise provided in the Lease, Owner had no ownership or other interest in any Improvements (as defined below), and that Tenant could remove any or all such Improvements at any time. As used in the Lease, the term "Improvements" means all WTGs (as defined below), Transmission Facilities, structures, equipment, machinery, wire, conduit, fiber, cable, poles, materials and property of every kind and character constructed, installed and/or placed on, above or below the Leased Property by or on behalf of Tenant. "WTG" means any wind turbine generator or wind machine designed for the generation of electrical power from wind power, including without limitation, the associated towers, support structures, guy wires, braces and directly related equipment. Section 5. No Liens. Under the Lease, Owner is not allowed, without the prior written consent of Tenant, to create or permit to be created or to remain, any liens, encumbrances, leases (except for agricultural, ranching and hunting leases), mortgages, deeds of trust, security interests, licenses or other exceptions with respect to the Leased Property or any Q►j part thereof. Any such rights granted without Tenant's consent are void ab initio. Section 6. No Interference, No Third Party Rights. Owner covenanted and agreed W under the Lease that Tenant would have the quiet use and enjoyment of the Leased Property in accordance with the terms of the Lease without hindrance or interruption from Owner or any other person or persons. Without limiting the generality of the foregoing, Owner agreed that Owner would not and would cause the other Owner Parties (as defined below) not to construct or install any structure or other improvement that was either within five hundred feet (500') of any WTG or was more than thirty feet (30') in height. Further, Owner agreed that Owner would not, and would cause the other Owner Parties not to, take any action that could (a) interfere with or impair the availability, accessibility, flow, frequency or direction of air and wind over and above the Leased Property, (b) in any way interfere with or impair the transmission of electric, electromagnetic or other forms of energy to or from the Leased Property, or (c) interfere with or impair Tenant's access to the Improvements or to the Leased Property for the purposes specified in the Lease, (d) interfere with any permits required for Tenant's use of the Leased Property or (e) otherwise interfere with Tenant's intended use of the Leased Property. Owner also agreed Owner would not take any action or grant any third party any rights in the Leased Property that could materially interfere with the development, construction, installation, maintenance or operation of any wind energy projects on the Leased Property or that could allow any party other than Tenant to exploit the Wind Rights or that could materially and adversely affect Tenant's use of the Leased Property. Finally, Owner agreed that during the term of the Lease, Owner would not grant any rights to any third party to develop, construct, install or maintain or operate any wind energy projects on or around the Leased Property, including without limitation, construction or upgrading of any Transmission Facilities, without Tenant's prior written consent, which consent shall not be unreasonably withheld. Section 7. Release. Under the Lease, Owner on its own behalf and on behalf of each of Owner's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors, family members and Austin 905474v.1 Page 3 of 6 800K 2 9 8 PAGE 131 invitees (collectively, the "Owner Parties") has released and discharged each of Tenant and Tenant's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors and invitees (collectively, the "Tenant Parties") from any losses, liabilities, damages, costs, claims, suits and causes of action (including losses or claims for personal injuries or death and property damage and including reasonable attorneys' fees and costs of litigation) (collectively, "Losses") attributable to (a) interference with wind on any property owned in whole or in part by Owner that is adjacent to the Leased Property; and (b) dangers associated with electrical generating facilities, such as audible and electromagnetic fields, electromagnetic noise, electrical interference, radio frequency interference or cell tower interference (collectively, "Interference and Electrical Generating Facility Dangers"), even if such Losses are caused by or allegedly caused by any Tenant Party's sole, joint or concurrent negligence, strict liability or other legal fault. Section 8. Assignment. Subject to certain restrictions in the Lease, the Lease and the rights of any party to the Lease and the Leased Property, wind energy projects, Transmission Facilities and Improvements may be assigned, encumbered or mortgaged, in whole or in part, without the prior written consent of the non -assigning party but no such assignment, 0 0 encumbrance or mortgage shall operate to enlarge the obligations or diminish the rights of the 0 non -assigning party thereto. Owner and Grantee acknowledge that this Memorandum will CJ continue to be effective with respect to any assignment under the Lease by either party thereto. Section 9. Successors and Assigns. The Lease shall inure to the benefit of, and be binding upon, Owner and Tenant and their respective heirs, transferees, successors and assigns, and all persons claiming under them. Section 10. No Modification of the Lease. This Memorandum does not alter, amend or modify the terms and provisions of the Lease, but is executed solely for the purpose of giving notice of the existence of the Lease and the terms and conditions therein, which Lease is incorporated herein by reference for all purposes to the same extent and with the same effect as if set forth herein in full. Section 11. Governing Law. This Memorandum shall be governed by and construed, interpreted and enforced in accordance with the laws of the state in which the Leased Property is located. Section 12. Counterparts. This Memorandum may be executed by facsimile and in multiple counterparts, no one of which need be executed by all parties hereto, each of which shall constitute an original. Counterparts thus executed shall together constitute one and the same instrument. [Signatures on Following Page] anx 2 98 PAGE 13 2 Page 4 of 6 Austin 905479v.1 IN WITNESS WHEREOF, Owner and Tenant have caused this Memorandum to be executed and delivered by their duly authorized representatives as of the date first set forth above. "Owner" EB Murphy On behalf of Collins Farm Rental MJ G ' g C,® On b alf of Collins Farm Rental G3 "Tenant" Fremantle Energy, LLC, a Delaware limited liability company Name: ThomaA-l. Houle Title: Presid6dt Page 5 of 6 GOOK 298PAGE 133 Austin 905479v.I STATE OF TEXAS COUNTY OF & rze�, The foregoing instrument was acknowledged before me this 7-I'lay of f4 __, 2008, by EB Murphy, on behalf of Collins Farm Rental. dr- CID t* • ��;� JUNE MARIE M. GRAY I— NotaryP mmi State of Texas t Public in and for the exas My Commission Expires � � March 27, 2011 0 S y commission expires: 3 �27— Z // STATE OF TEXAS COUNTY OF &AIZ--` The foregoing instrument was acknowledged before me this '2.7 �day of Q�t , 2008, by MJ Grigg, on behalf of Collins Farm Rental. o��aYeof., JUNE MARIE M, GRAY ?' Notary Public, State of Texas Itary Public in and for th of Texas `rs My Commission Expires M commission expires: _ _ z o I, ,,, ,,,. March 27, 2011 ( Y p STATE OF TEXAS § § COUNTY O �t § The foregoing instrument was ac owledged before m this C�` day of 2008, by Zt �p the of Fremantle Ener ,LLC, a Delaware limited liability company. otary Public in anA for the Wte of Texas My commission expires: ~ iARA K. D- AV,� Notary Puhlic., State of Texas My Commission Expire;: •!t1!t& 22, 201 i Page 6 of 6 _`�" g;:!'• Austin 905479v.1 BOOK 2 9 S FA GC 134 SCHEDULEI Land THE FOLLOWING REAL PROPERTY LOCATED IN THE COUNTY OF GARZA, STATE OF TEXAS: In all 196.6 acres, more or less, more particularly described in the Warranty Deed recorded in the Garza County records as Vol. 210 Page 51-52, the Garza County tax records, and as shown in Schedule I -Page 2: Garza County, Deed Records 196.6 acres of land situated in GARZA COUNTY, TEXAS, more or less out of the North One- half (N/2) of Survey No. 1248, Certificate No. 1/378, B.S.&F. Abstract No. 892, Vol.31, Patent No. 388, Vol. 31, described by metes and bounds in Deed from Mrs. Maggie E. Dial to Roy Collins dated February 9, 1994, recorded in the Deed Records of Garza County, Texas. Garza County Tax Records AB 892 SEC 1248 B&LF 196.6 ACRES BLK 1 PER GRIGGS 5-16-94 BOOK 2 9 8 PAGE 13 5' Schedule I — Page 1 Austin 905479v.1 jEl&RRjfRW Gf" . G H , JH GIBBON, J H 1 67 \ 1266 4 , �./yltt ""= 1-- 7 k --L�b�KVYO�DD:'rNFT DAVI ,AF _ Kl ,R,E •'a k �` r' �) - 3 189{�7c EL&Rtt-RRf`16 •. t 6 L GIBS J H 1893tb _ 169686 . d { - ' u 721 GIBSON. J H GIBSON. J H JOHNSON. SA D&$ERR- - 7 1d 1¢9309 1696 5 &R R CO G J H GIBBON. H eu 1260 JbfINSON. SA 1 - 0093 '-' F• - �"'1' l �tr�a�. � '' - - t _. �- -. ti 7,20 4 B•,a arb 1tC�� t�1;O PB N4v- HA L, PTON; , � , -} `tom` 3 ,4�r '}+{. f!. ✓ h-. j X HA J 169759 160288 •AB&M BS&F . ., r I �6 F$5r - -- 1l}9894•. AIR IVA- GORDON•LP ,;,a 1248 a:{ --,,. - ,• 169344 F TT RR CO r - TT RR CI "�` - . I D&WO - .189292 j s *b&WRR124.4. G�' 246 - •TAILEY,,PH ».. I•BYSF.� `°- fit- -1239 9617 .189345 E. .. ' -'�+F v.. ESP HAYS.J r _+ fTTRRCd TT RR CO TT O52 80 ES. J R 4r,S, \ 1253 ) 1255 — = - 1256 TALLEY P'- t FRl �tnTLl SCHEDULE I SCALE: Not To Seale COLLINS -APPROX 196.6ACRES OUT OF FILE NANIE:ColinsSchedMep.pdf P SECTION 1248, ABSTRACT 892, BS&F SURVEY DATEBY: BR APP/2008 PE N E R G Y GARZA COUNTY, TX BY: ROVEE D: BR Schedule I — Page 2 Austin 905479v.I BOOK 2 9 8 PAGE 136 FILED FOR RECORD I� �Rol��rS 2042 at Ll o o'dock,..�M. JIM PLUMMER _ COUNTY CLERK. OARZA COUNTY, TEXAS Ey I,�,c c CS{ It { ieM _ x y�,D pttty No Text Resolution No. 2010—R0163 CONTRACT FOR PURCHASE OF EASEMENT This Contract For Purchase of Easement (the "Contract') is made on this day of , 2010 ("Effective Date"), by and between Randall R. Adams and wife, Tammy R. Adams (collectively referred to herein as 'Seller") and the City of Lubbock, Texas, a Texas home rule municipal corporation (referred to herein as "Bu er"). RECITALS WHEREAS, Seller owns the Easement Area (as defined in the Easement Agreement (the "Easement Agreement") attached hereto as Exhibit A) and the Temporary Easement Area (as defined in the Easement Agreement) (the Easement A;•,=a and the Temporary Easement Area shall be collectively referred to herein as the "Easement Area"); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a permanent and a temporary easement (collectively, the "Easement") over, across and upon the Easement Area and the Temporary Easement Area in accorde.nce with the terms of the Easement Agreement. ARTICLE I SALE OF EASEMENT For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Easement and all rights incident thereto as described in the Easement Agreement attached hereto and incorporated herein for all purposes. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Easement described herein is Dollars ($ ) (the "Purchase Price") which amount is the sum of the amounts set forth in Paragraph 12 (i), (ii) and (iii) of the Easement Agreement. 2.02 Independent Contract Consideration. Within seven (7) business days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of this Contract. The Independent Contract Consideration is to he credited against the Purchase Price at closing, if Closing (as identified below) occurs. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Within sixty (60) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Buyer and to Seller and to Seller's legal counsel a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by West Texas Title Company ("Title Company") setting forth its exceptions to title ("Exceptions") and copies of any such Exceptions. 3.02 Survey. Buyer, at Buyer's sole cost and expense, has previously caused a current on the ground survey for the Property (the "Survey") to.be delivered to Buyer. Within fifteen (15) days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Seller a copy of the Survey. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of ten (10) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Obiections"), if any. Buyer acknowledges and agrees that the Easement will be subject to (A) all items disclosed on Exhibit F to the Easement Agreement, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property, (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rights -of -way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date (the foregoing, together with any exceptions to title that are accepted or waived by Buyer in accordance with Section 3.04 shall be referred to herein as the "Permitted Exceptions"). 3.04 Seder's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies Seller of Objections to any of the matters furnished to Buyer pursuant to Section 3.03, the Seller shall, within ten (10) calendar days after Seller is provided notice, either to satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. If Seller is unwilling or unable to satisfy the Objections within such ten (10) calendar day period, Buyer or Seller may at its option extend the cure period up to an additional fifteen (15) days or Seller may inform Buyer that Seller is unable or unwilling to cure the Objections. If the Objections remain unsatisfied, and if Buyer and Seller do not agree in writing to an extension of that period, then Buyer has the option of either: waiving the unsatisfied Objections by, and only by, notice in writing to Seller within five (5) calendar days after the expiration of the cure period, in which event those Objections shall become Permitted Exceptions; or terminating this Contract by notice in writing and receiving back the Independent Consideration, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract, except as provided in Section 3.06 below. 3.05 Title Policy. At Closing, Buyer, at Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount o the Purchase Price and insuring that Buyer has an easement pursuant to the Easement Agreement over and across the Easement Area, subject only to the Permitted Exceptions and the terms of the Easement. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows: (i) if available based upon the Survey, the survey exception may be amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be bome solely by Buyer, of any required additional premium); no exception will be permitted for "visible and apparent easements" or words to that effect; (iii) no exception will be permitted for "rights of parties in possession" (provided that any inspection fees or expenses required by the Title Company to delete this exception shall be paid by Buyer); (iv) no liens will be shown on Schedule B, unless the holder thereof has subordinated its lien rights to the Easement. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exceptions it deems material, in its sole discretion. 3.06 Other Remedies. Notwithstanding anything contained in this Contract to the contrary, if Buyer determines that the easement intended to be conveyed to Buyer and described herein and in the Easement Agreement, or any part thereof or undivided interest therein, should be acquired by judicial procedure to procure good title, then Buyer and Seller hereby stipulate that (i) an agreement, in the same form as the Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Seller for the easement obtained by Buyer by judicial procedure, shall be the same as the consideration stated in Section 2.01 above and in Paragraph 12 of the Easement Agreement, but should the Seller own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Buyer and described herein, such award shall not exceed that portion of the consideration stated in Paragraph 12 of the Easement Agreement which the value of such lesser interest of Seller bears to the value of the entire Easement Area or Temporary Easement Area described herein. This Section 3.06 shall survive any termination of this Contract ARTICLE IV COVENANTS AND AGREEMENTS 4.01 Covenants and Agreements of Seller. Seiler represents and warrants that to Seller's knowledge and subject to the Permitted Exceptions Seller has good and indefeasible title to the Easement Area and further covenants and agrees with Buyer as follows: (a) Seller represents that to the best of its knowledge Exhibit F to the Easement Agreement, when prepared and Aelivered by Seller, will set forth a list of (1) all unrecorded agricultural leases and agreements which encumber the subject property, (li) all unrecorded mortgages or deeds of trust which encumber the subject property, and (III) all unrecorded easements granted by Grantor which encumber the subject property. Seller will provide to Buyer within thirty (30) days after Seller's receipt of. a copy of the Title Commitment, copies of all documents to be described in the Easement Agreement on Exhibit F that are not reflected in the Title Commitment. Buyer shall have ten (10) days after receipt of such documents to object to any matters set forth therein that are not contained in the Title Commitment. Thereafter, Buyer and Seller shall have the same objection and cure rights with respect to such objections as are set forth in Section 3.04. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall not sell, assign, or convey any right, title or interest whatsoever in or to the Easement Area, or create any lien, encumbrance, or charge thereon. ARTICLE V CLOSING 5.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company. The Closing Date (herein sometimes called), shall be on the earlier to occur of (I) the date that is ninety (90) days after the Effective Date; or (ii) such earlier date as mutually agreed on by Seller and Buyer. However, the closing date as identified herein may be extended by either party for a period of thirty (30) days in order to comply with the time limits contained in Article III and Article IV. 5.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to the Title Company the following items: (i) Art Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Seller and acknowledged; and (b) Buyer. At the Closing, Buyer shall deliver the Title Company, or obtain for itself, the following items: (i) The sum required by Section 2.01 in the form of immediately available funds to be paid immediately to Seller; (ii) The Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Buyer and acknowledged; and (III) The Title Policy in the form specified in Section 3.05; Both Buyer and Seller shall deliver other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. ARTICLE VI DEFAULTS AND REMEDIES 6.01 Seller's Defaultn and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Seller fails to meet, comply with or perform any covenant, agreement, or obligation on Seller's part required within the time limits and in the manner required in this Contract, or (ii) Seller fails to deliver at Closing, the items specified in Section 5.02(a) of this Contract for any reason other than a default by Buyer under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If 6.01(a) occurs, Independent Consideration as Buyer's performance. 6.02 Buyer's Default, Seller's Remedies. Buyer may: (i) terminate the Contract and receive the sole and exclusive remedy, or (ii) enforce specific (a) Buyer's Default. Buyer is in default under this Contract on the occurrence of any one or more of the following events: (i) Buyer fails to meet, comply with or perform any covenant, agreement, or. obligation on Buyer's part required within the time limits and in the manner required in this Contract, or (ii) Buyer fails to deliver at Closing, the items specified in Section 5.02(b) of this Contract for any reason other than a default by Seiler under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedies. If 6.02(a) occurs, Seller may: (i) terminate the Contract and retain the Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific performance. ARTICLE VII MISCELLANEOUS 7.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Randall R. and Tammy R. Adams 1420 Monticello Avenue Lubbock, TX 79416 Copies to: For Seiler: John C. Cox, Esq, K&L Gates, LLP 1717 Main, Suite:2800 Dallas, Texas 75201 Telecopy: (214) 939-5849 BUYER: Attn: Dave Booher City of Lubbock 162513th Street Lubbock, Texas 79401 Telecopy: (806)775-3074 For Buyer: Attn: Marsha Reed City of Lubbock 162513th Street Lubbock, Texas 79401 Telecopy: (806)775-2051 The parties may change their address effective in the same manner as other notices provided hereunder. 7.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN THE COUNTY WHERE THE PROPERTY IS LOCATED. 7.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Easement, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 7.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 7.06 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. 7.06 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 7.07 Agreement in Lieu of Condemnation. This Contract and the Easement Agreement are entered into by Buyer and Seiler as a settlement and compromise lieu of condemnation and the consideration set forth herein and the covenants and agreements of the Buyer set forth in the Easement Agreement are given to Seller in compensation for the acquisition of the Easement in accordance with the Easement Agreement. This Section 7.07 shall survive Closing and the execution and delivery of the Easement Agreement. 7.08 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City Council of the City of Lubbock to the Deputy City Manager of Buyer, or his designee. When the context requires; singular nouns and pronouns include the plural. The undersigned represent and warrant their respective authority to execute this contract, and to convey the interest in property described herein. Executed by Seller on the _— day of 2010. SELLER: RANDALL R. ADAMS TAMMY R. ADAMS Executed by Buyer on the _ day of 2010. CITY OF LUBBOCK TOM MARTIN, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Ryan J. Bigbee, Attorney for the City of Lubbock Exhibit A to Contract of Sate EASEMENT AGREEMENT SEE ATTACHED EASEMENT AGREEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF § Subject to the terms and conditions set forth in this Easement Agreement (this "Agreement'), Randall R. Adams and wife, Tammy R. Adams ("Grantor') whose address is 1420 Monticello Avenue, Lubbock, TX 79416 for and in consideration of the covenants contained herein and other good and valuable consideration to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 13t' Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, hereby grants unto Grantee an easement (the "Easement") subject to the terms of this Agreement through, over, under, upon, across and within the sixty foot (60') wide area described by metes and bounds on Exhibit A (the "Easement Area") situated in Garza County, Texas: The Easement shall be for the survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of (i) a single underground pipeline located within the Easement Area for the iransportation of fresh water (the "Pipeline'), and (ii) the following equipment and appurtenances related to the Pipeline and situated within. the Easement Area: conduits, drain (blow -off) valves, valve boxes, meter boxes, vents (air valves), manholes, manhole covers (with post around manholes), corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep well anode stations with power supplies, flow meters, system communication lines (including, but not limited to, fiber optic lines), splice boxes, and corrosion control equipment, corrosion monitoring equipment and other equipment and facilities related thereto (collectively, the "Pipeline Equipment')(the Pipeline together with the Pipeline Equipment shall be collectively referred to herein as the "Pipeline System"). Further, Grantor hereby grants unto Grantee a temporary construction easement (the "Temporary Easement") for the construction and installation of the Pipeline System over an area sixty feet (60') in width located adjacent to, and abutting, the Easement Area (the "Temporary Easement Area") on the northeast side of the Easement Area as more specifically described on Exhibit A. The Temporary Easement shall terminate and expire upon the earlier of (i) completion of all construction activities related to that portion of the Pipeline System situated within the Easement Area, or (ii) June 30, 2014 (the "Anticipated Pipeline Completion Date"). in the event that the Pipeline System within the Easement Area has not been completed by the Anticipated Pipeline Completion Date, Grantee shall have the option to extend the term of the Temporary Easement for up to two consecutive periods of two (2) years each with the first extension to commence on the Anticipated Pipeline Completion Date and the second extension to commence on the second anniversary of the Anticipated Pipeline Completion Date; provided, however, that the Temporary Easement shall in any event terminate and expire upon the completion of the Pipeline System within the Easement Area and thereafter be of no further force and effect.. In order to exercise its right to extend the Temporary Easement as aforesaid, not later than thirty (30) days prior to the Anticipated Pipeline Completion Date (or the second anniversary of such date if the Temporary Easement has already been extended) Grantee shall deliver to Grantor written notice that it intends to extend'the Temporary Easement and pay to Grantor of the sum of $ j**10% of the amount in paragraph 12(i) below**1 for each requested two (2) year extension. Upon request of Grantor, after completion of that portion of the Pipeline System situated within the Easement Area, or the termination and expiration of the Temporary Easement, Grantee shall execute and deliver to Grantor a release of the Temporary Easement in a form acceptable for filing. The Easement and Temporary Easement are specifically made by Grantor and accepted by Grantee subject to the following terms, covenants, obligations and conditions: I . Permitted Uses. Grantee may use and occupy (a) the Easement Area for the sole purpose of: (i) survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline and Pipeline Equipment; (ii) the construction, installation, maintenance and repair of a pipeline trail road within non -cultivated areas of the Easement Area, and (iii) ingress, egress and regress for people, material, and equipment along, over and across the Easement Area to accomplish the purposes stated in paragraph I (al(il provided that after completion of construction of the Pipeline System situated within the Easement Area, and except in cases of emergency or repair; on cultivated land ingress, egress and regress shall be permitted in, but limited to, the use of then -existing turn rows, and (b) the Temporary Easement Area (during the term thereof) for the sole purpose of (i) survey, construction and installation of the Pipeline and Pipeline Equipment; (ii) ingress, egress and regress for people, material, and equipment along, over and across the Temporary Easement Area to accomplish the foregoing, and (c) during the term of the Temporary Easement, the Easement Area and the Temporary Easement Area may be used for the temporary storage of materials and equipment (including pipe for the Pipeline and Pipeline Equipment) (collectively, the "Permitted Uses"). Grantee shall use the Easement Area and the Temporary Easement Area (for the term thereof) for the Permitted Uses, and activities reasonably related thereto, and for no other purposes or uses. 2. Legal Requirements-, No Interference. Grantee covenants and agrees that its use of the Easement Area and Temporary Easement Area, and its operations conducted thereon, shall at all times comply with this Agreement and all material applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all material environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and the safety guidelines shown on Exhibit B attached hereto and made a part hereof. Further, Grantor and Grantee shall each conduct their activities in such a manner as to not unreasonably interfere with, or cause disruption to, the other's business, operations and property or those of a third party entering or crossing the easement. 3. Due Care. Grantee covenants and agrees to construct the Pipeline System, and to perform its obligations under this Agreement, in a prudent manner and with due professional care for Grantor's property, business and operations, and according to standard industry practices. 4. Construction Specifications. Grantee covenants and agrees to construct, maintain, repair and replace the Pipeline System in the Easement Area in accordance with the following: (a) Minimum Pipeline Depth. The Pipeline System shall be so located or shall be buried at a sufficient depth so it will not interfere with farming activities currently in practice and cultivation of the soil at the soil levels as they exist at time of execution of this Easement and, in any event, the Pipeline shall be buried at such depth as will allow a minimum coverage of forty-eight inches (48") for current ranchland and a minimum coverage of sixty inches (60") for current farmland. Any Pipeline Equipment that will be installed above plow depth on cultivated lands shall only be installed at the locations identified on Exhibit C or, if no locations are specified on Exhibit C. at such other locations that will not interfere with farming activities and which are approved in writing by Grantor, such approval not to be unreasonably withheld. (b) Ditching. Unless determined by an outside engineer to be impractical due to the existence of rock or material elevation change, all ditching shall be in accordance with the "double ditch" method whereby the top eighteen inches (18") of soil (the "ToR Soil") shall be removed from the Pipeline trench (the "Trench") and stored in a pile that is segregated from all other material and debris, and the remaining soil (the "Bottom Soil") shall be removed from the Trench and stored in a pile that is segregated from the Top Soil. When the Trench is refilled after the Pipeline has been laid and the Pipeline Equipment installed, the Bottom Soil shall be placed in the trench first leaving room to fill the uppermost eighteen inches (18") of the Trench to be filled with Top Soil. Top Soil shall be used to fill the remainder of the Trench. Any Bottom Soil remaining after filling the Trench shall (i) on cultivated lands, be removed from the Easement Area and disposed of off of the property of Grantor, and (ii) on uncultivated lands, shall be spread over the Easement Area and Temporary Easement Area in a manner acceptable to Grantor and that will not restrict or limit the re -growth of natural vegetation. Rocks or other debris arising in connection with clearing the Easement Area and ditching the Trench for the Pipeline System shall be removed as set forth in Paragraph 4 (hl below. As stated above, single ditching shall be allowed in all areas where "double ditching" is impractical (as determined by an outside engineer) due to the existence of rock or material elevation change. (c) Trench Leveling. Within uncultivated areas, upon completion of construction of the Pipeline System, excess material may be mounded over the Trench and covered with Top Soil; provided that the mound will be limited to a maximum of one foot (P) in height and will be graded to allow natural drainage. Within cultivated areas, upon completion of construction of the Pipeline System, the Easement area shall be leveled to grade (or as otherwise agreed to by Grantor in writing). In all instances the Easement Area and Temporary Easement Area shall be cleaned up in a professional manner. (d) Maximum Open Segments. The construction, installation, maintenance and repair of the Pipeline System shall be performed in segments so that there is never more than one thousand feet (1000') of open Trench at any one time and no open segment shall be open for more than seven (7) days; provided, however, that excavations for pipeline appurtenances and tunnel/bore crossings may remain open for up to thirty (30) days. (e) Compaction. Grantee shall mechanically compact all fill material to prevent any subsidence. To the extent there exists or hereafter arises any subsidence or erosion arising in connection with the construction, installation, maintenance or repair of the Pipeline System, Grantee shall refill with top soil, re - compact, and re -grade all affected areas and take any further action reasonably required to return the surface to a substantially similar, or better, condition than adjacent undisturbed areas and prevent future subsidence or erosion. In furtherance of the foregoing, Grantee shall inspect the Pipeline at an interval of (i) six months, (ii) twelve months, and (iii) eighteen months after initial Pipeline System construction, and promptly refill and re -compact any subsidence or erosion existing at such times in order to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and take any further action reasonably required to prevent future subsidence or erosion. The inspections periods set forth above are not intended to be a limitation on Grantee's ongoing duty to fill, compact and maintain the grade of the land around the Pipeline. Accordingly, in the event that Grantor at any time discovers any subsidence or erosion after the installation of the Pipeline (whether before or after expiration of the inspection periods provided for above), Grantor may provide notice of such subsidence or erosion to Grantee. Within thirty (30) days' after Grantee's receipt of such notice, Grantee shall commence and thereafter diligently and without unreasonable delay refill with top soil, re -compact and re -grade all affected areas and take any additional action as may be reasonably required to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and to prevent future subsidence or erosion. (f) Disc Plowing. If requested by Grantor, after completion of construction of the Pipeline the top 6 to 12 inches of the Easement Area and Temporary Easement Area through cultivated fields shall be disc plowed to loosen up soil for farming operations. (g) Gates. Grantee shall install gates at each existing fence to be crossed within the Easement Area and the Temporary Easement Area in order to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, Grantee will set H-braces on the outside boundaries of the Temporary Easement and Easement Area (e.g. 120 feet apart) then tie -off and cut the fence adjacent to each H-brace. The Grantee shall then set temporary T-posts and string barbed wire along the 120 foot opening and install a temporary barbed wire gate or gates, as needed. At the time of construction through the affected area, the Grantee will remove the temporary T-posts so as to permit construction activities. At night, Grantee will install temporary fencing. Upon completion of the subject Pipeline section, Grantee will install interior H-braces and a permanent 14 foot gate(s). Grantee will then install permanent T-posts and barbed wire to connect the H- braces. Fences, gates, gate posts and corners installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made apart hereof and shall be installed with professional care and according to standard industry practices. All gates installed by Grantee shall be made of painted steel pipe. Except during construction as described above, all fence gates on the exterior of Grantor's property shall be closed and locked at all times, unless Grantor in its sole discretion consents to temporary cattle guards or other arrangements. All gates on the interior of Grantor's property shall be left as found. All cattle guards on the exterior of Grantor's property shall be closed and locked at night unless otherwise requested by Grantor. After construction, Grantee shall put a lock on all gates and Grantor may install its own lock on such gates; provided, however, that at all times Grantor and Grantee shall have full and complete access to the Easement Area. (h) Debris Removal. Grantee covenants and agrees that at Grantee's sole cost and expense any and all debris materials of any kind arising in connection with the construction, installation, operation, inspection maintenance, replacement, repair and removal of the Pipeline System, including trash, trees, timber, wood, bushes, shrubs and brush, and other debris materials (collectively, "debris"), shall be removed by Grantee from Grantor's property and disposed of properly so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Further, all rocks and rubble arising in connection with the construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline System will be removed from Grantor's property so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Notwithstanding the foregoing, Grantee and Grantor by mutual agreement may determine that (i) Grantee may shred or mulch trees, timber, wood, bushes, shrubs and brush and scatter such debris over Grantor's property, (ii) Grantee may burn trees, timber, wood, bushes, shrubs and brush, (iii) Grantee may store or scatter rocks and rubble at locations designated by Grantor, or (iv) any other reasonable method to dispose of trees, timber, wood, bushes, shrubs, brush, rocks and rubble. If any trees, timber, wood, bushes, shrubs and brush are burned on site, the Grantee shall maintain constant watch over burn piles with adequate firefighting equipment on site. Grantee further agrees that neither Grantee nor its employees, contractors, agents nor representatives will burn any trees, timber, wood, bushes, shrubs or brush cleared from the Easement Area or the Temporary Easement Area during burn bans designated by county officials. (i) Temporary Crossings. During construction of the Pipeline System, crossovers shall be installed by the Grantee over the Trench to provide access for Grantor (and Grantor's personnel, equipment and livestock) over the Trench to and from Grantor's adjacent property (i) over all existing paved or unpaved roads, (ii) for livestock (at no less than 500 foot intervals), and (iii) at such other locations as are reasonably designated by Grantor. Further, Grantee may, at Grantee's option, construct temporary fencing near any open hole or trench. 0) Reseeding. If any of the Easement Area or Temporary Easement Area consists of grassland, Grantee shall, using the recommended procedure (either via drill or broadcast), plant a native (e.g. native to the local area) seed mix of grass and forbs selected by Grantor but subject to reasonable availability. (k) Existing Terraces, Damage to Adjacent Property. (i) Terraces. Existing terraces in the Easement Area and Temporary Easement Area will be replaced upon the backfill of the trench excavated in connection with the construction of the Pipeline System. In the event that the breach of any existing terrace results in any damage to Grantor's adjacent property or the breach of any down grade terraces (whether or not within the Easement Area or the Temporary Easement Area), Grantee shall repair any such damage and return the surface of affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (ii) Damage to Adjacent Property. In the event that the activities of Grantee (or any of its agents, employees, contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles) within the Easement Area or Temporary Easement Area result in any damage or erosion to Grantor's property located outside of the Easement Area or Temporary Easement Area, Grantee shall repair any such damage or erosion and return the surface of the affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (1) Diversions. Terraces.• Stream Beds. Grantee shall install water diversions and terraces where necessary or appropriate in order to divert water away from excavated areas, to prevent erosion and to permit the natural flow of water that existed prior to construction of the Pipeline. Further, where the Easement Area crosses any wet or seasonal stream beds, all Permitted Uses shall be conducted in a recognized manner to protect said stream beds and to prevent erosion (m) Blasting. Prior to blasting within the Easement Area, Grantee will notify Grantor. However, no blasting will be permitted within five hundred feet (500') of any existing buildings, pipelines or wells; provided, however, that Grantor shall provide written disclosure of the location of any such improvements that are located underground before such blasting. (n) Trail Road. The pipeline trail road shall not exceed twelve feet (12') in width. The trail road shall be constructed, repaired and maintained in a manner consistent with Grantee's needs and purposes; provided, however, such trail road shall include culverts and water diversions where appropriate to prevent washouts and erosion. Grantee shall level or fill all ruts and washouts and otherwise maintain the trail road on a reasonable basis. Grantor shall have use of such road within Grantor's property so long as Grantor's use does not unreasonably interfere with Grantee's use of the Easement Area and Temporary Easement Area. After completion of the construction of the Pipeline System and except in cases of emergencies, in order to avoid ruts and washouts, Grantee and Grantor shall use reasonable efforts to avoid the use of the trail road when wet. (o) Necessary Temporary Use. Grantee shall have the right to use Grantor's property located immediately adjacent to the Easement Area and Temporary Easement Area for the following: (i) On rangeland, detouring around natural impassable impediments within the Easement Area or Temporary Easement Area such as canyons, large boulders or large trees; or (ii) the repair and removal of equipment or vehicles stranded within the Easement Area or Temporary Easement Area, but only to the extent is there not sufficient area within the Easement Area and Temporary Easement Area to permit such repair and removal. Except as provided in this Paragraph 4(o), Grantee (and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them) shall not at any time go upon the property of Grantor outside of the Easement Area and Temporary Easement Area. To the extent that any such incursion upon the lands of Grantor adjacent to the Easement Area and Temporary Easement Area results in any damage to such lands, Grantee shall be liable for such damage and in any event covenants and agrees that the affected areas shall be returned to the condition that is substantially similar to, or better than, adjacent undisturbed areas. (p) Staking of Easement. Prior to commencement of construction of the Pipeline System, Grantee shall stake the exterior boundaries of each side of the combined Easement Area and Temporary Easement Area (e.g. the parallel lines, 120 feet apart, that mark the outside boundaries of the combined 60 foot Easement Area and 60 foot Temporary Easement Area). Such boundary shall be staked with clearly visible, above ground markers so that all parties can easily view" the boundary of the easements. Such markers shall be maintained until completion of construction of the Pipeline System. (q) Tree Grubbing. Upon commencement of work on the construction of the Pipeline System (and prior to trenching), Grantee shall grub (using an excavator modified to grub mesquite) all mesquite within the Easement Area and shall also grub any mesquite that has been destroyed, damaged, bladed, or cut within the Temporary Easement Area. At its option Grantee may grub the entire Temporary Easement Area. All debris arising as a result of grubbing activities will be disposed of in accordance with Paragraph 4(h) above. Grantor acknowledges that Grantee is not liable for any re -growth of vegetation after any tree grubbing identified in this Paragraph 4 (q) or after any double ditching as identified in Paragraph 4 (b) and that re -growth of vegetation will occur over time. 5. Cure Period. In the event that Grantee is in violation of any of the terms of this Agreement, Grantor shall give written notice of, and an opportunity to cure such violation to Grantee. Grantee covenants and agrees within thirty (30) days of receipt of such notice to commence to cure, and thereafter diligently and without unreasonable delay pursue to cure, such violation; provided, however, that the cure of any subsidence or erosion will be completed within one hundred and twenty (120) days after receipt of such notice to commence to cure. 6. Record Drawings To Be Provided to Grantor. Upon completion of the construction of the Pipeline System, Grantee shall, at Grantee's sole cost, provide to Grantor record drawings showing the location within the Easement Area of the Pipeline and each item of Pipeline Equipment. 7. Abandonment of Easement. Grantee may abandon the Pipeline System solely by an ordinance adopted by the City Council of The City of Lubbock, Texas (or any successor governing body of The City of Lubbock Texas) that authorizes the abandonment of the Pipeline System. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Easement Area is located. If Grantee should abandon the Pipeline System as aforesaid, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns, and title to the Pipeline System located within the Easement Area shall revert 'o Grantor, its successors and assigns and Grantor may, at its option, remove, dispose of and/or sell any pipe or Pipeline Equipment within the Easement Area. 8. Easement Term. The "Easement Term" is hereby defined as the period of time beginning with the Effective Date (hereinafter defined) and continuing until such time that the Pipeline System is abandoned by Grantee as provided in Paragraph 7 above. 9. Covenant to Maintain Pipeline. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, exercise due care and diligence in the use of the rights and privileges herein granted and keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement Area in good order, condition and repair and free of all debris following any work related to Permitted Uses on the Pipeline System. 10. Permits. Grantee shall be responsible for obtaining all permits necessary for Permitted Uses within the Easement Area and the Temporary Easement Area. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality relating to the Pipeline System and this Agreement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 11. Additional Uses. Subject to the limitations set forth in this paragraph, the Easement is non-exclusive and Grantor shall at all times have the right to (i) use and enjoy the Easement Area for any purpose not specifically prohibited herein; (ii) grant easements and rights of way over, under, upon, across and within the Easement Area to such persons as Grantor deems proper; (iii) construct and maintain improvements upon the Easement Area; and (iv) construct and maintain irrigation systems (including drip and overheard irrigation systems) and components and water distribution lines to cultivate and service Grantor's property (including the Easement Area), provided, however, (A) no buildings or reservoirs may be constructed upon the Easement Area, (B) improvements (other than drip irrigation lines and overhead irrigation equipment) may not parallel the Pipeline within the Easement Area, (C) all power lines, pipelines (other than drip irrigation lines and overhead irrigation systems), and telephone and other telecommunication lines must cross the Easement Area at no less than a 45' (forty-five degree) angle, (D) underground power lines and any metallic pipelines (excluding irrigation water lines and water distribution lines used to service Grantor's property) must have a minimum separation of two feet (2') from the Pipeline and must meet industry standards in order not to adversely affect or damage the Pipeline, and (E) fences constructed by Grantor within the Easement Area must have gates installed so that Grantee at all times has access over and across the Easement Area. In the event that Grantor determines to construct (or grant the right to any third party to construct) improvements within the Easement Area that are not addressed above, Grantor shall provide not less than thirty (30) days prior written notice to Grantee during which time Grantee may have the proposed improvements analyzed by its outside engineers. If during such thirty (30) day period Grantee provides to Grantor a detailed analysis of why the proposed improvements will adversely affect the Pipeline or Pipeline System, Grantor shall not construct such improvements until such time as Grantor and Grantee's engineers agree upon a methodology for the construction of such improvements that will not adversely affect the Pipeline, such agreement not to be unreasonably withheld by either Grantor or Grantee. Grantee and Grantor will at all times use their good faith efforts to accommodate the needs and activities of one another. Grantee covenants and agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not unreasonably interfere with or endanger the operations or integrity of the Pipeline System. Grantee acknowledges and agrees that if the Easement Area is subject to one or more oil and gas leases in existence as of the Effective Date of this Easement, or if Grantor does not own the minerals under the Easement Area, Grantor does not have control over and is not responsible for, or liable for, compliance (or non-compliance) with this Paragraph 11 by any oil and gas lessee or mineral owner(s). 12. Compensation for Grant of Easement. As complete consideration for the execution and delivery of this Agreement by Grantor, contemporaneously with the execution hereof by Grantor the Grantee agrees to pay to Grantor (i) the sum of Eighty - Five Dollars ($85.00) per rod for a total of Seventeen Thousand Six Hundred Six and 90/100ths Dollars ($17,606.90) for the grant of the Easement and the grant of the Temporary Easement, (ii) the sum of ($ ) for damage to, or the replacement of, machinery and equipment (including irrigation systems and equipment) and other personal property specified on Exhibit E, and (iii) the sum of ($_____, for damage to crops. In the event that as a result of the time of year in which construction of the Pipeline will occur Grantor (or its lessee) will suffer crop losses for two consecutive years, prior to commencement of construction (or, if construction has already commenced, but was delayed or extended, prior to continuation of construction) Grantee shall pay to Grantor an additional sum for crop losses in the amount specified in item (iii) above. The foregoing consideration constitutes payment to Grantor and Grantor's successors, assigns, or agricultural lessees or tenants, if any, for the grant of the Easement and Temporary Easement and for damage to the specified equipment, machinery and crops resulting from the initial construction and installation of the Pipeline System. The market value of any damaged crop shall be calculated using the following formula: Affected Acres X Yield Per Acre X Unit Price for the affected crop = damages to be paid, where (i) the amount of the affected acreage will be reasonably determined by the Federal Farm Service Agency in the county where the premises is located, or if the Federal Farm Service Agency fails or refuses to make such calculation, as reasonably determined by Grantor, (ii) yield per acre will be the average of the previous three (3) years' yields according to the Grantor's (or Grantor's lessee's) records for the affected parcel, but if the Grantor (or Grantor's lessee) does not have yield records available, the parties will use Federal Farm Service Agency records or other commonly used yield information available for the area, and (iii) unit price will be based upon the average of the last previous March 1" and September 1s` prices for the affected crop as set by the Chicago Board of Trade, New York Cotton Exchange, Kansas City Board of Trade, or other similar exchange, as appropriate for the affected crop. Notwithstanding the foregoing, the Parties hereto agree that the unit price for damages to cotton crops shall be $0.52 per pound. 13. Title. (a) Grantee acknowledges that at its sole cost and expense it has researched the title to the Easement Area and the Temporary Easement Area and, where it deemed it necessary, obtained abstracts or certificates of title or title insurance to such property. Grantor represents that to the best of its knowledge set forth on Exhibit F is a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject property, and (iii) all unrecorded easements granted by Grantor which encumber the subject property. Grantor will provide Grantee, at least thirty (30) days prior to the execution of this Agreement, with all documents identified and to be attached hereto as Exhibit F. The grant of the Easement herein contained is subject to (A) all items disclosed on Exhibit F, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property (which Grantor understands that Grantee has received and reviewed), (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rights -of -way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date. It shall be the obligation of Grantee to procure and have recorded without cost to Grantor all assurances of title and affidavits which Grantee determines are necessary and proper to show in Grantor title sufficient to grant this Easement. The expense of recording this Agreement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, at no expense to Grantor, to obtain any curative documents needed to the extent such cure would not affect Grantor's title. (b) If Grantee or Grantor determines that the easement intended to be conveyed to Grantee and described herein, or any part thereof or undivided interest therein, should be acquired by judicial procedure, either to procure good title or for any other reason, then Grantor and Grantee hereby stipulate that (i) an agreement, in the same form as this Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Grantor for the easement obtained by Grantee by judicial procedure, shall be the same as the consideration stated in Paragraph 12, but should the Grantor own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Grantee and described herein, such award shall not exceed that portion of the consideration stated in Parag_raph 12 which the value of such lesser interest of Grantee bears to the value of the entire Easement Area or Temporary Easement Area described herein. 14. Recreation,• Firearms,• Hunting_ Fishing, Dogs, Artifacts. At no time shall Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them (i) enter upon the Easement Area or Temporary Easement Area for sightseeing or other recreational purposes, all access being limited to Permitted Uses, (ii) kill or remove from the Easement Area any plants (other than in connection with Permitted Uses) or any reptiles, fish, birds or animals or any artifacts (including arrowheads) or other archeological items of any kind, (iii) bring upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor) any firearm (whether rifle, pistol, shotgun), bow of any type, arrow, trap, snare, net, fishing rod, or any other means whatsoever of taking wild game, fish or fowl, (iv) hunt, fish or trap upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), (v) bring dogs upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), or (vi) subject to the provisions of Paragraph 4(o) above, enter upon any part of the land of Grantor outside of the Easement Area or the Temporary Easement Area, or (vii) take any photographs in the Easement Area except in connection with Permitted Uses and for no other purposes, it being understood and agreed that all commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. Any person in violation of the foregoing shall be a trespasser and Grantee covenants and agrees not to interfere with the prosecution of any person accused of the foregoing and to prohibit any such person from thereafter going upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). Grantee consents and agrees that Grantor shall have the right at any time to inspect the interior of any vehicle brought upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). The Grantee shall include a covenant similar to the above in all contracts with any contractors having access to the Easement Area or the Temporary Easement Area. 15. Gender. Plural. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 16. Indemnity. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor and Grantor's family, officers, agents, servants, employees, representatives, contractors, independent contractors, and subcontractors (each, an "Indemnitee") harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs; collectively, the "Covered Losses"), that may be suffered or incurred by an Indemnitee, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement Area or the Temporary Easement Area after the Effective Date to the extent arising in whole or in part out of or in connection with any negligence or willful misconduct of Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles. When any losses, claims, demands, or causes of action of the types described above are the result of joint or concurrent negligence or willful misconduct of Grantee and Grantor or their respective employees, contractors or agents, it is understood and agreed that Grantee's indemnity obligations shall be effective and shall cover all such losses, claims, demands, or causes of action notwithstanding any negligence on the part of Grantor or Grantor's, employees, contractors (including independent contractors and subcontractors), agents or invitees. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the Easement and/or any rights granted hereunder, and Grantor shall be solely limited to the remedy of money damages for such claims. 17. Indem&y Rearding Pollution. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold each Indemnitee harmless from and against all Covered Losses of whatsoever nature arising from pollution or contamination emanating from the Pipeline System (the "Grantee pollution liabilities"); provided, however, that "Grantee pollution liabilities" shall exclude any pollution liabilities arising from any condition existing before the effective date of this Agreement. Grantor hereby releases Grantee from and against all Covered Losses of whatsoever nature arising from (i) pollution emanating from the property and equipment of Grantor, (ii) any condition existing before the Effective Date, (iii) pollution or contamination migrating or having migrated on, under, or to the Easement Area from any other location, and (v) the possession, occupation or use by Grantor (or any third parry under rights granted by Grantor) of Grantor's property. 18. Insurance. During the construction and installation of the Pipeline System, Grantee shall maintain, or cause its primary contractor to maintain, comprehensive generally liability insurance in the amount of $1,000,000 and umbrella liability insurance in the amount of $2,000,000, covering "all risks" associated with the Permitted Uses of the Pipeline during construction and installation of the Pipeline System. Upon request Grantee shall provide a copy of such policies, and all renewals and replacements thereof, to Grantor. 19. Easement Gnly. It is understood and agreed that this Agreement is not a conveyance of the fee estate for any of the Easement Area, but is only an easement through, over, under, upon, across and within the Easement Area and the Temporary Easement Area (for the term thereof). 20. Binding Agreement; Assignment. The provisions of this Agreement shall be binding upon and inure to the benefit of Grantor and Grantee and their respective successors, heirs and assigns; provided, however, Grantee shall not assign this Easement without the prior written consent of Grantor which consent shall not be unreasonably withheld. 21. Final Agreement. This Easement and the Exhibits attached hereto contain the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. Each Exhibit attached hereto shall be a part of, and incorporated into, this Agreement. 22. Unenforceable Provisions. 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 unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 23. Notices. Any notices or demands provided to be given herein by the parties shall be in writing and sent by facsimile or email (if a facsimile or email address is provided below) or mailed by certified mail or hand delivered to the other party at the address set forth below. In addition, telephone notices described in Paragraph 26 below shall be permitted to the telephone numbers set forth below. Notice of any breach of this Agreement must be in writing and mailed by certified mail or hand delivered to the other party at the address set forth below. Each party may rely on the addresses and contact information set forth below until changed in accordance with this Agreement. If Grantee determines that Grantor has conveyed the subject property without providing contact information for the new owner, Grantee may rely on the records of the local appraisal district. Either party may change its contact information for notices to it by written notice to the other party. Any notice or demand shall be deemed to have been received the earlier of (i) three (3) days after the date of mailing, (ii) the date of actual delivery as shown by the addressee's certification or registry receipt. or (iii) the date of hand delivery. Grantee shall provide and maintain a person for emergency contact who is available at the below telephone (or such different phone number as set forth in notice from Grantee to Grantor). Grantee: The City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Facsimile: (806)775-2051 Email: MReed@mail.ci.lubbock.tx.us Contact Person: Marsha Reed Emergency contact: Emergency phone number: Grantor: Randall R. Adams and wife, Tammy R. Adams 1420 Monticello Avenue Lubbock, TX 79416 Facsimile: Email: Contact Person: Phone number: (_) Cell number: 24. Access Notice. Telephonic notices are acceptable for notice of emergencies and for inspections of the Easement Area, however, with regard to notices of inspection if the contact person cannot be reached by telephone, written notice must be provided. Except in the event of emergencies, after completion of construction of the Pipeline the Grantee shall provide at least 24 hour prior telephonic notice to Grantor prior to accessing the Easement Area. Voice mail messages shall not constitute notice hereunder. 25. Notice to Future Users. Grantor and Grantee agree and hereby give notice to any oil, gas, mineral, water, wind or energy lessee or grantee acquiring (after the Effective Date) any interest overlying or underlying the Easement Area, that Grantee will be operating the Pipeline System and conducting Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted in the vicinity of the Easement Area which would unreasonably interfere with the operations or integrity of the Pipeline System. Further, to the extent Grantor owns the oil, gas and other minerals under the Easement Area, Grantor hereby waives the right to use the surface of the Easement Area.for the drilling of any oil or gas wells subject, however, to the rights of any lessee under any oil, gas and other mineral lease in existence as of the Effective Date. 26. Mineral. Water Reservation. Grantor reserves and excepts from this Easement and retains for Grantor and Grantor's successors and/or assigns, all rights to explore for, to drill and produce wind, water, oil, gas and other minerals of every kind and description underlying or situated beneath the Easement Area by any means whatsoever, including wells or mines directionally drilled from surface locations on nearby lands so long as no surface operations are performed on the Easement Area and so long as such operations do not interfere with or endanger the operations or integrity of the Pipeline System. 27. References to Grantee. Where appropriate in this Agreement, references to Grantee in connection with the performance of Permitted Uses shall include Grantee and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 28. Limitation on Damages. Neither party shall be liable to the other party or any of such party's affdiates in any action or claim including without limitation, any action or claim for indemnity, for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 29. Force Majeure. When a time period is specified herein for the performance by either party of its obligations hereunder (except for the payment of money), such period shall be extended by the period that such party's performance is prevented by reason of windstorm, hurricane, tornado, flood, earthquake or other acts of God or by war, riot, insurrection or workers' strike or by the unavailability of materials (each, an act of "Force Majeure"), however, in order for either parry to take advantage of the extension provided above for an act of Force Majeure, such party must give written notice to the other party within five (5) days of the commencement thereof and must immediately commence performance of its obligations when the effect of the Force Majeure event has subsided. TO HAVE AND TO HOLD said Easement, together with all and singular, the rights and appurtenances thereto in anywise belonging unto Grantee, its successors and assigns during the Easement Term, subject to the terms and conditions hereof. The effective date of this Agreement (the "Effective Date") shall be the date this Agreement is last signed by Grantor or Grantee. [ Signatures of the Parties on Next Page ] EXECUTED this day of .2010 (the "Effective Date"). GRANTOR: RANDALL R. ADAMS TAMMY R. ADAMS GRANTEE: The City of Lubbock TOM MARTIN, Mayor [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Terry Grantham Attorney for the City of Lubbock Zach Brady Attorney for City of Lubbock John Cox Attorney for Landowner STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on 2010, by RANDALL R. ADAMS. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on , 2010, by TAMMY R. ADAMS. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on , 2010, by TOM MARTIN, Mayor. Notary Public, State of Printed Name of Notary My commission expires: Exhibits: A - Metes and Bounds Description of Easement Area B - Pipeline Right -Of -Way Safety Guidelines C - Location of Surface Pipeline Equipment D - Gate Construction Detail and Specifications E - Equipment Covered by Damage Payment under Paragraph 12(ii) F - Unrecorded Leases and Agreements, Unrecorded Deeds of Trust and Unrecorded Easements Exhibit A Survey and Metes and Bounds Description of the Easement Area 1 216 I'D. R.R SPK� &3' W. 2,4' S. 1216 EXHIBIT `A' � Wage 1 of 3 L OLOGK 0-18 Ronnie•(hmn vo1.2J5. f g, 349 88' 00.05" E 43,r6.76'— S 88° 00'05" E `27ri4,4'— 752.82 0!�.��—�; y/F0. CONC. �10N.�\ \ \ ro. 1" PIPE J .. 1593.94' 1.s'N. o Ovc.. 10 Vof.4S es�men Imo, rIM ltandol/RAGoms s !n U :,t` 471At- Au 0?t Vd 239 9 / ` `�J w: 9 S• tsnd• Si \`i a S 1.59*551, W Wd:e. = 14 - EsnaJ 72.70' S 13' 44'24" yy `••....-_. o \� N 63.03159" E�� I-D. r' PIPE t � _ 374.00' Z307.55' 6 S 1' 55'58'. W N S8' 0 18 w. 686.14' — �, . W r n ! PIP au- 7.233.79' (' FO. r' PILE 7 �} 1� P.O,B. C N 8. 04'S8, 8.15' ��. 5 1- Sb, 04' W x- 0' 1� Q �y N FD. CaNC. MON. 756,5 88• Ur'38" E —_._ ." —i \rO.%' ROD 1q. O M.& A/.Cnlerprlses . A Y I C val.259 Pa.922 SURV�Y r�gR�p GO RlfY) TEXAS &- Set 1/p" Rod W/Cop A IC901 description or even sur%owy date harewith accompanies this survey plot. Sur ed on the groun y, Z009 —�� 9 f ''7ed P L-Ssionnl Land Surveyox... "I'g.> s t%Ote / �_ vl"; •" ,,•�i't' V/7 �': 4 N�81� 1 J � '4pt;•1S.yCr'r r..•. (CpY;X�IOPR+vM:' � IV tl-�( • 1 yrb:b'�Sk� �K'•r .�.:• O N 4. AIINortt"fIgS find Eastin9r shown ore pro ff put Coordinates lled Nortond h Ct`nirollZone NAD83 byy dividing exot by funsurfacmates, odjuytmunt factor Uf 1.0002396 SCALE:1' - AJI distances shown are surface distances. CLi NT: p. tlt3urin g gs shown ore grid bear in a bored on the i ezas State Plone Coordinate System, North DRAWN 1 SURVEYEp NADR3 polum. Central Zone, Fit I`r ere" 1239 �i rD N L\ S\ 47' 51'C•1" W 1 14'4,51' PItrI. 6.3^ w'S9" w WNC. MfNJ. This survey find o04dormulion hereon is for file exClusiva use of - CITY OF LUBBOCK Sk MWEM Lft CPS and athoAnol he Copied of used Wept f(jr the Durpose for which it {s Mr"Ssly furnished. this drmrury and uficopies Ipartiolor J= 701hSt"MM ��r�tlOtk.tic 7Y�L1 complEte) challbC relurn¢d 1(: the owner upon demand, 18W'Q .MQ • FAX MIX) ]W-IP6 -22-09 SON 1 OF EXHIBIT -A- Page 2 of 3 PARCEL NO.26 RANDALL R. ADA14S Field Notes describing the centerline of a Sixty -Foot (60) wide permanent pipeline easement being descr-Inibed Section 1240, J. Hays Survey, Garza County, Texas and Bald pi06ilne centerline being Beginning at a Yz" iron rod with cap, set an the South line of a tract of land as described in Volume 239, Page 849, Deed Records of Gala County, Texas, for the whence a 8"x8" concrete monument found for the East Quarter corner Of said Sewon i24p, bears South 1059139" West, a distance isi' 785.78 feet ands beginning of this description, from said point of beginning having a project coordinate of Y South 8869176.26 and Xdis10 5279189; feet, Thence along the arc of a curve to the left and beings centerline of said Si Permanent pipeline easement, an arc distance of 265.02 teen to a xtY-Foot (601 wide Point fir th curve having a radius of 575.00 feet and a delta angle of 26c,24'28e end of this curve, said Thence North 88°02'18" West, along the centerline of said Sixty -Foot easement, a distance of 319.52 feet to the beginning of a cufrigOh wide permanent pipeline pThence along the arc of a curve to the right and being the centerline of said S: F e•.".. 8 anent pipeline easement, an arc distance of 369. Point for the end 'end oar of this cus cu „ride curve having a radius of 575.00 feet and a delta angle of 36 51,25 rve, said Thence North 51010'53" West, along the centerline of said Si easement, a dig -mince of 1002,26 fist to the Y`o wide permanent pipeline beglrtning of a curve tt right; the right; Thence along the arc of a curve to the right and being the centerline of said Si permanent pipeline easement, an arc distance of 451.60 feet to a point far the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 45°00'00"; . Sixty -Foot (60� wide Thence North 6°10'53" West, along the centerine of said Si easement, a distance of 188.33 feet to the beginning of a Curve tothe left,wide permanent pipeline Permanent Thence along the arc of a curve to the left and being the centerline of said curve havin01 wide g aeradius of 575.00 feeeasement, an t and a delta angle o 45o 0 a point for thSixty-Foot d of h6is curve, said angle of 45 00 00 , Thence North 51010'53" West, along the eenterine of said Sixty -Fact (60 wide e easement, a distance of 27.95 feet to the beginning of a curve to the left; p rmanent pipeline M HIGH-TECH LAND AND GPS•SURVEYORS, INiw 3330 70th St., Suite 202 - Lubbock, Texas 79413 (806) 788-0020 - Fax (806) 792-1646 EXHIBIT N n - Page 3 of 3 Thence along the arc of a curve to the left and being the centerline of said Sixty -Foot (607 wide Permanent pipeline easement, an arc distance of 140.4S feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 13659'44"; Thence North- 65Q10'36" West, along the centerline of said Sixty -'Foot (601 wide permanent pipeline easement, a distance of 176.22 feet to a point; Thence North 0000'00" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 25.02 feet to a jk" iron rod with cap, set on the South right of way line of F.M. 211, for the end of this description, whence a 411x4" concrete monument found for the North Quarter corner of said Section 1240, bears North 11059'55" East, a distance of 50.95 feet and South 88,100,05" East, a distance of 873.87 feet. Containing 207.14 rods. (4-70 acres) The above described sixty foot (60l wide permanent pipeline easement is also subject to a sixty foot (601 wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 4.71 acres of land. The said temporary construction easement shall expire as noted 'in the easement agreement. Noires: 1. A survey piat of even survey date herewith accompanies this legal description. 2. Surveyed on the ground March -May; Central Zone, Nad83 Datum. 2009. 3. Bearings shown are grid beatings based on the Texas State Plane Coordinate System, Texas North 4. All distance shown are surface distances. 5. Surface adjustment factor for entire projects :1.0002396 dl Land Surveyor~' °�° ~�_"^'''rTr�ion,.n•.e+r: Registered r fession �' Date: — 20 °",. "�•�t.^*,a ia,.er�' r El HIGH-TECH LAND AND GPSSURmrug !NG 3330 loth St., Suite 202 • Lubbock, Texas 79413 (806) 788-0020 - Fax (806) 792-1646 Exhibit B Pipeline Safety Guidelines So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the Easement, as well as applicable laws and regulations: 1. Except during construction or maintenance of the Pipeline, driving within the Easement Area is limited to use of currently established roadways, if any, and any trail roads constructed by Grantee on non -cultivated lands. 2. Smoking outside vehicles within the Easement Area or lands or premises is prohibited. 3. No firearms, drugs, or alcohol are permitted in the Easement Area and no photographs may be taken in the Easement Area except in connection with Permitted Uses and for no other purposes. All commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. 4. Pedestrians and non -motorized traffic have right-of-way over motorized traffic 5. The maximum speed limit within the Easement Area is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 6. Use horn for safety at blind corners and when passing. 7. Use established hand signals or turn indicators S Observe all signs including pipeline markers. 9. Come to complete stop on entering or leaving gates within the Easement Area. 10. All persons entering the Easement Area must be fully clothed. 11. No debris or trash shall be discarded on the Easement Area or the Temporary Easement Area. Exhibit C Locations of Surface Pipeline Equipment 4< Otmm tAyw: P\, (15) Mum-KAXulca Gj L/NEB 473+00 f r 1474 \ \11. ata \ I Al �a �Qgg 9 P�i' A Y iS CITY OF LUUDDCK LAKE ALAN HENRY WATER SUPPLY PROJECT CONTRACT B PIPELOI PUN"PKOFlLE STA. 473+00 TO STA. 498+00 wwa =inn im w��` No Text m T=U,cw u+om n- p0 \-1 1 1 1 524 \ \ W J 1 1 I 525+00 fsu__ I•'_ 626+q0 1 I 528+00 1 I I 1 529+0 1 s 1 I I 53 +00 532+00 51 L„ i I b I I 1 \ Iy - l ' 534+ .- I 537+00 I ' I I I S36+00 i 1 I 1 I 539+00 , 541 too 542+00 -• 544+00 Q a 1 Q� I ; us+Do J 1 � � 646+00 1 , , 1 1 547+00 Cry OF LU8000K LAKE ALAN HENRY WATER SUPPLY PROJECT CONTRACT R PIPELINE PLAN AND PROFILE Exhibit D Gate Construction Detail and Specifications 6"x9'-6" SCPI, 40 PIPE W/°h" 14 0 POP PLATE 3" COLLAR 2" SCH. 40 PIPE 40 X �/4" GUSSET PLATE '. WELD ALL AROUND ?" SCH. ! 2" SCH. 40 PIPE (TYPICAL) t0 PIPE CONCRETE ( 1 ' NOTE: ALL CONNECTIONS ARE WELDED ALL AROUND. GATE DETAIL SCALE: 1/2"=1'-0" % 6"x9'-6" SCH. 2" SCH. 40 PIPE-\ / 40 PIPE W/Ys" 1 TOP PLATE 1 01 LSEE NOTE 5 SEE DETAIL "C" -T - SHAPE POST o i W jy+» 6'-6 LONG (1,33 #/FT rAI ,) ( W/ANCHOR PLATE i'AIL "A" IEET ' CONCRETE TYPICAL GATE SUPPORT -DETAIL 1B" OIA HOLE (TYP,) SINGLE SWING GATE SECTION i I 'ELIi!>tta- MMlMMMI M!! lMMiMM■ MMM Miammumn OR MICRON ■>r=. m �� FFNCMS AND. GtaT€5; t. GATES TO BE INSTALLED AT ALL FENCE CROSSINGS, UNLESS OTHERWISE DIRECTED BY THE OWNER. 2. ALL STEEL GATES, POSTS, CROSS BRACES, ETC.. SHALL BE PAINTED BLUE. 3. PROVIDE I" LINK CHAIN AROUND GATE AND WELD TO SUPPORT POST. PROVIDE ONE HEAVY DUTY LOCK PER GATE KEYED PER OWNER'S LOCKS. 4. CONTRACTOR SHALL VERIFY EXACT LOCATION OF ALL GATES WITH OWNER PRIOR TO CONSTRUCTION. 5, BARBED WIRE SHALL BE 12Ji GA. GALVANIZED BARBED WIRE. MINIMUM 5 STRAND FENCE OR AS PER EXISTING FENCE, WHICHEVER IS GREATER, WHERE EXISTING FENCE HAS PANEL FABRIC, INSTALL 39" PANEL FABRIC WITH 3 STRAND BARBED WIRE, 47" PANEL FABRIC WITH I STRAND BARBED WIRE MINIMUM OR AS PER EXISTING, WHICHEVER IS GREATER. 6, CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONNECT TO EXISTING FENCE, PRIOR TO CUTTING EXISTING FENCE. 7. DIMENSIONS SHOWN ARE FOR FENCES CROSSING AT PERPENDICULAR ANGLE TO PIPELINE. WHERE FENCE CROSSES PIPELINE AT SKEWED ANGLE, DIMENSIONS SHALL BE INCREASED ACCORDINGLY. SCALE: 1 /2"-1'-0" Exhibit E Equipment Covered by Damage Payment under Paragraph 12(ii) Exhibit F Unrecorded Leases, Unrecorded Agreements, Unrecorded Deeds of Trust, and Unrecorded Easements Exhibit B MEMORANDUM OF LEASE STATE OF TEXAS COUNTY OF GARZA Resolution No. 2010-RO163 This MEMORANDUM OF LEASE ("Memorandum") is made and executed to be effective as of February 27, 2008 by and among RANDALL R. ADAMS and TAMMY R. ADAMS (collectively, and together with their successors and assigns hereunder, "Owner"), and FREMANTLE ENERGY LLC, a Delaware limited liability company (together with its successors and assigns hereunder, "Tenant"). RECITALS: A. Owner is the owner of approximately 255 acres of land (the "Land") situated in Garza County, Texas, described in Schedule I attached to and made a part of this Memorandum, CZ together with all and singular (i) the wind and air rights on or pertaining to the Land (the "Wind Rights") and (ii) all other rights, interests, privileges and appurtenances pertaining to the Land, including any easements and other rights as may be necessary for ingress, egress and: T maintenance of the Land and any and all right, title and interest of Owner in and to adjacent roads, streets, alleys or rights -of -way (such items in clause (ii) collectively, the "Other Appurtenances"). The Land, Wind Rights and Other Appurtenances are collectively referred to herein as the "Leased Property". B. On February 27, 2008 (the "Effective Date"), Owner and Tenant entered into a Lease Agreement (the "Lease") pursuant to which Owner leased to Tenant and Tenant leased from Owner the Leased Property. C. Owner and Tenant desire to execute this Memorandum to provide constructive notice of Tenant's rights under the Lease to all third parties. NOW, THEREFORE, for and in consideration of the mutual covenants and benefits herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Tenant hereby agree as follows: Section 1. Purpose of Memorandum. The purpose of this Memorandum is to give record notice of the Lease, and of the rights created thereby, all of which are hereby confirmed. The parties, however, advise all parties acquiring interests subsequent to the date of this Memorandum, that the Lease and any and all documents executed in connection therewith, may be amended from and after the date hereof with the consent of the parties thereto, and without amendment of this Memorandum. Without limiting the generality of the foregoing, the Lease, as the same may be amended from time to time without amendment of this Memorandum, shall be binding upon all parties taking interests in the Land subsequent to the date of recordation of Page 1 of 6 Austin 905479v.I ow 29SPAGE fib. this Memorandum. As such, all such parties are hereby on notice that they should inquire as to the terms of the Lease as in effect from time to time, and that third parties may rely on this Memorandum solely for record notice of the existence of the Lease and certain of the provisions thereof as of the date of this Memorandum, and not with respect to the specifics of the terms thereof as the same may be in effect from time to time. Section 2. Term of Lease. After the Development Period, the Primary Term shall be for thirty (30) years from the Production Commencement Date, unless extended or sooner terminated as provided in the Lease. Tenant may, at its option extend the Primary Term for two (2) successive periods of ten (10) years each by written notice to Owner at least ninety (90) days prior to the last day of the Primary Term (as the same may have been extended). Section 3. Purpose of Lease. The Lease is for wind energy conversion to electricity on the Leased Property and for the collection and transmission of electric power, by developing and operating wind powered electricity generating projects on the Leased Property and other property, and for related activities and such Lease includes, without limitation, the following rights and privileges for Tenant: (a) the right to develop, erect, construct, install, replace, relocate, repair, remove, maintain, operate and use from time to time, wind turbines (and the foundations, Q footings and other appliances and fixtures for use with such wind turbines), underground and above -ground electrical transmission and communications lines related to the operation of wind turbines, electric transformers, energy storage facilities, telecommunications equipment, roads, meteorological towers and wind measurement equipment, control buildings, maintenance yards, and related facilities and equipment necessary and/or convenient for the operation and maintenance of one or more wind energy projects on the Leased Property and/or other property, in accordance with the Lease; (b) the right to capture and to convert all of the wind resources of the Land; (c) the right to develop, erect, construct, install, replace, relocate, remove, maintain, operate and use the following from time to time in connection with wind energy projects, whether located on the Leased Property or elsewhere, (i) a line or lines of poles or towers, together with such wires and cables as from time to time are suspended therefrom, and/or underground wires and cables, for the transmission of electrical energy and/or for communication purposes, and all necessary and proper anchor, support structures, foundations, footings, crossarms and other appliances and fixtures for use in connection with said towers, wires and cables; (ii) one or more substations or interconnection or switching facilities from which Tenant or others that generate energy may interconnect to a utility transmission system or the transmission system of another purchaser of electrical energy; and (iii) roads associated with the foregoing (such towers, wires, cables, substations, facilities and other enumerated items in clauses (i), (ii) and (iii) are herein collectively called the "Transmission Facilities"); (d) the right in connection with the use of the Leased Property, of pedestrian and vehicular ingress, egress and access over and across the Land by means of roads and Page 2 of 6 Austin 905479v.1 lanes thereon if existing, or otherwise by such route or routes as Tenant may construct or improve from time to time; and (e) any and all right of Owner to select, determine, prohibit or control the location of sites for drilling and/or exploration of minerals in, to and under the Land. Section 4. Ownershin of Wind Energy Projects. Under the Lease, Owner covenanted that, except as otherwise provided in the Lease, Owner had no ownership or other interest in any Improvements (as defined below), and that Tenant could remove any or all such Improvements at any time. As used in the Lease, the term "Improvements" means all WTGs (as defined below), Transmission Facilities, structures, equipment, machinery, wire, conduit, fiber, cable, poles, materials and property of every kind and character constructed, installed and/or placed on, above or below the Leased Property by or on behalf of Tenant. "WTG" means any wind turbine generator or wind machine designed for the generation of electrical power from wind power, including without limitation, the associated towers, support structures, guy wires, braces and directly related equipment. Section 5. No Liens. Under the Lease, Owner is not allowed, without the prior written consent of Tenant, to create or permit to be created or to remain, any liens, encumbrances, leases (except for agricultural, ranching and hunting leases), mortgages, deeds of trust, security interests, licenses or other exceptions with respect to the Leased Property or any part thereof. Any such rights granted without Tenant's consent are void ab initio. CA Section 6. No Interference; No Third Party Rights. Owner covenanted and agreed under the Lease that Tenant would have the quiet use and enjoyment of the Leased Property in accordance with the terms of the Lease without hindrance or interruption from Owner or any other person or persons. Without limiting the generality of the foregoing, Owner agreed that Owner would not and would cause the other Owner Parties (as defined below) not to construct or install any structure or other improvement that was either within five hundred feet (500') of any WTG or was more than thirty feet (30') in height. Further, Owner agreed that Owner would not, and would cause the other Owner Parties not to, take any action that could (a) interfere with or impair the availability, accessibility, flow, frequency or direction of air and wind over and above the Leased Property, (b) in any way interfere with or impair the transmission of electric, electromagnetic or other forms of energy to or from the Leased Property, or (c) interfere with or impair Tenant's access to the Improvements or to the Leased Property for the purposes specified in the Lease, (d) interfere with any permits required for Tenant's use of the Leased Property or (e) otherwise interfere with Tenant's intended use of the Leased Property. Owner also agreed Owner would not take any action or grant any third party any rights in the Leased Property that could materially interfere with the development, construction, installation, maintenance or operation of any wind energy projects on the Leased Property or that could allow any party other than Tenant to exploit the Wind Rights or that could materially and adversely affect Tenant's use of the Leased Property. Finally, Owner agreed that during the term of the Lease, Owner would not grant any rights to any third party to develop, construct, install or maintain or operate any wind energy projects on or around the Leased Property, including without limitation, construction or upgrading of any Transmission Facilities, without Tenant's prior written consent, which consent shall not be unreasonably withheld. Page 3 of 6 Austin 905479v.1 Section 7. Release. Under the Lease, Owner on its own behalf and on behalf of each of Owner's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors, family members and invitees (collectively, the "Owner Parties") has released and discharged each of Tenant and Tenant's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors and invitees (collectively, the "Tenant Parties") from any losses, liabilities, damages, costs, claims, suits and causes of action (including losses or claims for personal injuries or death and property damage and including reasonable attorneys' fees and costs of litigation) (collectively, "Losses") attributable to (a) interference with wind on any property owned in whole or in part by Owner that is adjacent to the Leased Property; and (b) dangers associated with electrical generating facilities, such as audible and electromagnetic fields, electromagnetic noise, electrical interference, radio frequency interference or cell tower interference (collectively, "Interference and Electrical Generating Facility Dangers"), even if such Losses are caused by or allegedly caused by any Tenant Party's sole, joint or concurrent negligence, strict liability or other legal fault. Section 8. Assignment. Subject to certain restrictions in the Lease, the Lease and the rights of any party to the Lease and the Leased Property, wind energy projects, Transmission Facilities and Improvements may be assigned, encumbered or mortgaged, in whole or in part, without the prior written consent of the non -assigning party but no such assignment, encumbrance or mortgage shall operate to enlarge the obligations or diminish the rights of the non -assigning party thereto. Owner and Grantee acknowledge that this Memorandum will continue to be effective with respect to any assignment under the Lease by either party thereto. Section 9. Successors and Assigns. The Lease shall inure to the benefit of, and be binding upon, Owner and Tenant and their respective heirs, transferees, successors and assigns, and all persons claiming under them. Section 10. No Modification of the Lease. This Memorandum does not alter, amend or modify the terms and provisions of the Lease, but is executed solely for the purpose of giving notice of the existence of the Lease and the terms and conditions therein, which Lease is incorporated herein by reference for all purposes to the same extent and with the same effect as if set forth herein in full. Section 11. Governing Law. This Memorandum shall be governed by and construed, interpreted and enforced in accordance with the laws of the state in which the Leased Property is located. Section 12. Counterparts. This Memorandum may be executed by facsimile and in multiple counterparts, no one of which need be executed by all parties hereto, each of which shall constitute an original. Counterparts thus executed shall together constitute one and the same instrument. [Signatures on Following Page] Page 4 of 6 Austin 905479v. l IN WITNESS WHEREOF, Owner and Tenant have caused this Memorandum to be executed and delivered by their duly authorized representatives as of the date first set forth above. "Owner" Randall R. Adams J �� Tammy R. A&46s 0 C�8 "Tenant" Fremantle Energy, LLC, a Delaware limited liability company Name: Thom H. Houle Title: Presidkfit Page 5 of 6 gau S PAGE 11 Austin 905479v.1 STATE OF TEXAS COUNTY OF &K-TA The foregoing instrument was acknowledged before me this 27 day of , 2008, by Randall R. Adams. `t1YPttll JUNE MARIE M. GRAY ♦` 1�R. 48�h� ,��° • '' .�:� Notary Public, State of Texas i«o My Commission Expires ```44r�bF�Y�`` March 21, 2011 STATE OF TEXAS COUNTY OF (�' Ms6:• %4 I ary Public in and for the e of Texas o oys y commission expires: 3-27--2011 The foregoing instrument was acknowledged before me this -2�3 day of Fe br wm , 2008, by Tammy R. Adams. JUNE MARiE M. GRAY Notary Public, State of Texas My Commission Expires March 27, 2011 STATE OF TEXAS § COUNTY OF _ § 1 N Public in and for th exas M commission expires: — 2%r2cI' The foregoing instrument was acknowledged before me this day of 2008, by a14 YOL'-� , the _ of Fremantle Energy, LLC, a Delaware limited liability company. Notary Public in and for the State of Texas My commission expires: QI/L*1 ' 2.;'� Notary PuRb lc, State Page 6 of 6 % �F��;E*��` My Commission Cxp Texas n rnt°,� Jutle 22, 201, it Austin 905479v.1 BOOK 2 9 S PAGE 116 SCHEDULEI Land THE FOLLOWING REAL PROPERTY LOCATED IN THE COUNTY OF GARZA, STATE OF TEXAS: In all 255 acres, more or less, more particularly described in the Deed, Garza County tax records, and as shown in Schedule I -Page 2: Garza County Deed Records Being 267.4 acres, more or less, same being in the North half (Farm 1112 and North part 1110) out of Survey No. 1240, Certificate No. 21/G-D & W. R.R. Company, Abstract No. 666, Vol. 31, Patent No. 565, Vol. 20, Garza County, Texas, less: Right-of-way easement dated March 31, 1961, from Mrs. T.L. Barnes to the State of Texas, of record in Vol. 83, at Page 547 of the Deed Records of Garza County, Texas, conveying two (2) tracts of land for highway right-of-way purposes. One tract contains 9.862 acres and the other 2.526 acres of land. Garza County Tax Records AB 666 SEC 1240 J HAYS 255 ACRES BLK 3 Schedule I — Page 1 Austin 905479v.1 BOOK 2 9 8 PAGE 117 of tt i° t a 189437 d ` a J i HAY$ �j c t Ek&RR�Rco j GIBSON, J H "` `` ` , 1262 - �: - JOHNSON. SA �8} x - x ; D&SE,RR `+. GIBSO Jli `� = 7 $' u�l S ss� S `� -F . u 1200 .» �' i' J i t a t -r �n"3! ` 2 - e ` - i `• , i , t 'SOHNSON. Sr j ^�68893 .':� a., ,y lw..�i• 1;' - +r`i_ D&SE=RR C0�'i-'1301 726� t/ ?t J - .JT i t HALL. P B . s kea ti. .t l�pGr�6 �� 1M »x„ t o �`.: - � I � L�- ""k�'�,.�p l< � onit.n y✓� f t t 'QijP� -•. 189288 n, t' 169892 I # ?b BS&F •... _ --@S&F &SGR II kti9[ "= +ie i 1 -("Cu D8Sf3`O 18988ta PGFN aua L 47 . _.. F KS ♦L( P B -G.svxi Pi _ ( 18934g 49738 TT RR CO TT RR G&.db CO 5 .1246 _ I `:. f r i m ,. ,rEs+ S SCOTr. .TAt1EY, I , -1166342 TTR4 0 »„ TT RR CO ��f , _ i 18 40 'k;• aft ,1_ C `�5.: `��\ f •,.» I TT R- 12531 t - t`- u' t - ...� ' H&OB R CO 1256 y='�dK+ ,tit' a TALLEY. P�- w' O l « I gB$41 1 t i n i LOFTdN t ti t 7 fi�Gytvd� I r° g3 y?188 062 �\ 71 160739- ; 169a39 - I o _ ti f ,rf \. TTRR'CO1 "189287 1 HE& RR CO ` 1896G2 ;"'G 1234 - -nt. G. P� Z, ai .1?106RRi? TALLEY: P H. HALL PtB } I� = T289 a� 1 2 GALBRA .BJ j { q d tg' f F1<E��IA�TL1 SCHEDULE I SCALE: Not To Scale ADAMS —APPROX 255 ACRES OUT OF FILE NAME: AdamsSchedMap.pdf �.. SECTION 1240, ABSTRACT 666, J HAYS SURVEY DATE 02/1212008 ENERGY BY. BR GARZA COUNTY, TX APPROVED: BR Schedule I - Page 2 ��. FILED FOR RECORD I Austin 905479v. I � day of ?`'t^-.1, --20 12 BOOK 2 9 8 PAGE 118 at I` 40 o'clockf- M. JIM PLUMMER COUNTY CLERK. ,GAR7(% COUNTY, TEXAS By�� Sn4Ln,'->Deputy Resolution No. 2010-RO163 CONTRACT FOR PURCHASE OF EASEMENT This Contract For Purchase of Easement (the "Contract") is made on this day of , 2010 ("Effective Date"), by and between Ronnie Dunn and Ross L. Dunn (collectively referred to herein as "Seller") and the City of Lubbock, Texas, a Texas home rule municipal corporation (referred to herein as "Buyer"). RECITALS WHEREAS, Seller owns the Easement Area (as defined in the Easement Agreement (the "Easement Agreement') attached hereto as Exhibit A) and the Temporary Easement Area (as defined in the Easement Agreement) (the Easement Area and the Temporary Easement Area shall be collectively referred to herein as the "Easement Area"); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a permanent and a temporary easement (collectively, the "Easement") over, across and upon the Easement Area and the Temporary Easement Area in accordance with the terms of the Easement Agreement. ARTICLE I SALE OF EASEMENT For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Easement and all rights incident thereto as described in the Easement Agreement attached hereto and incorporated herein for all purposes. ARTICLE 11 PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Easement described herein is Dollars ($ ) (the "Purchase Price") which amount is the sum of the amounts set forth in Paragraph 12 (i), (ii) and (iii) of the Easement Agreement. 2.02 Independent Contract Consideration. Within seven (7) business days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and Nol100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of this Contract. The Independent Contract Consideration is to be credited against the Purchase Price at closing, if Closing (as identified below) occurs. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Within sixty (60) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Buyer and to Seller and to Seller's legal counsel a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by West Texas Title Company ("Title Company") setting forth its exceptions to `itle ("Exceptions") and copies of any such Exceptions. 3.02 Survey. Buyer, at Buyer's sole cost and expense, has previously caused a current on the ground survey for the Property (the "Survey") to be delivered to Buyer. Within fifteen (15) days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Seller a copy of the Survey. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of ten (10) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment and the Exception documents, in which to give written rotice to Seller, specifying Buyer's objections to one or more of the items ("Objections'), if any. Buyer acknowledges and agrees that the Easement will be subject to (A) all items disclosed on Exhibit 1= to the Easement Agreement, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property, (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rights -of -way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date (the foregoing, together with any exceptions to title that are accepted or waived by Buyer in accordance with Section 3.04 shall be referred to herein as the "Permitted Exceptions"). 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies Seller of Objections to any of the matters furnished to Buyer pursuant to Section 3.03, the Seiler shall, within ten (10) calendar days after Seller is provided notice, either to satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. If Seller is unwilling or unable to satisfy the Objections within such ten (10) calendar day period, Buyer or Seller may at its option extend the cure period up to an additional fifteen (15) days or Seller may inform Buyer that Seller is unable or unwilling to cure the Objections. if the Objections remain unsatisfied, and if Buyer and Seller do not agree in writing to an extension of that period, then Buyer has the option of either. (i) waiving the unsatisfied Objections by, and only by, notice in writing to Seller within five (5) calendar days after the expiration of the cure period, in which event those Objections shall become Permitted Exceptions; or (ii) terminating this Contract by notice in writing and receiving back the Independent Consideration, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract, except as provided in Section 3.06 below. 3.05 Title Policy. At Closing, Buyer, at Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has an easement pursuant to the Easement Agreement over and across the Easement Area, subject only to the Permitted Exceptions and the terms of the Easement. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows: (i) if available based upon the Survey, the survey exception maybe amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (ii) no exception will be permitted for "visible and apparent easements" or words to that effect; (iii) no exception will be permitted for "rights of parties in possession" (provided that any inspection fees or expenses required by the Title Company to delete this exception shall be paid by Buyer); (iv) no liens will be shown on Schedule B, unless the holder thereof has subordinated its lien rights to the Easement. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exceptions it deems material, in its sole discretion. 3.06 Other Remedies. Notwithstanding anything contained in this Contract to the contrary, if Buyer determines that the easement intended to be conveyed to Buyer and described herein and in the Easement Agreement, or any part thereof or undivided interest therein, should be acquired by judicial procedure to procure good title, then Buyer and Seller hereby stipulate that (i) an agreement, in the same form as the Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Seller for the easement obtained by Buyer by judicial procedure, shall be the same as the consideration stated in Section 2.01 above and in Paragraph 12 of the Easement Agreement, but should the Seller own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Buyer and described herein, such award shall not exceed that portion of the consideration stated in Paragraph 12 of the Easement Agreement which the value of such lesser interest of Seller bears to the value of the entire Easement Area or Temporary Easement Area described herein. This Section 3.06 shall survive any termination of this Contract. ARTICLE IV COVENANTS AND AGREEMENTS 4.01 Covenants and Agreements of Seller. Seller represents and warrants that to Seller's knowledge and subject to the Permitted Exceptions Seller has good and indefeasible title to the Easement Area and further covenants and agrees with Buyer as follows: (a) Seller represents that to the best of its knowledge Exhibit F to the Easement Agreement, when prepared and delivered by Seller, will set forth a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject property, and (iii) all unrecorded easements granted by Grantor which encumber the subject property. Seller will provide to Buyer within thirty (30) days after Seller's receipt of a copy of the Title Commitment, copies of all documents to be described in the Easement Agreement on Exhibit F that are not reflected in the Title Commitment. Buyer shall have ten (10) days after receipt of such documents to object to any matters set forth therein that are not contained in the Title Commitment. Thereafter, Buyer and Seller shall have the same objection and cure rights with respect to such objections as are set forth in Section 3.04. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall not sell, assign, or convey any right, title or interest whatsoever in or to the Easement Area, or create any lien, encumbrance, or charge thereon. ARTICLE V CLOSING 6.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company. The Closing Date (herein sometimes called), shall be on the earlier to occur of (1) the date that is ninety (90) days after the Effective Date, or (ii) such earlier date as mutually agreed on by Seller and Buyer. However, the closing date as identified herein may be extended by either party for a period of thirty (30) days in orderto comply with the time limits contained in Article III and Article IV. 5.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to the Title Company the following items: (i) An Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Seller and acknowledged; and (b) Buyer. At the Closing, Buyer shall deliver the Title Company, or obtain for itself, the following items: 0) The sum required by Section 2.01 in the form of immediately available funds to be paid immediately to Seller; (ii) The Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Buyer and acknowledged; and (iii) The Title Policy in the form specified in Section 3.05; Both Buyer and Seller shall deliver other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. ARTICLE VI DEFAULTS AND REMEDIES 6.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Seller fails to meet, comply with or perform any covenant, agreement, or obligation on Seller's part required within the time limits and in the manner required in this Contract, or (ii) Seller fails to deliver at Closing, the items specified In Section 5.02(a) of this Contract for any reason other than a default by Buyer under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Buyer's remedies. If 6.01(a) occurs, Buyer may: (i) terminate the Contract and receive the Independent Consideration as Buyer's sole and exclusive remedy, or (ii) enforce specific performance. 6.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract on the occurrence of any one or more of the following events: (1) Buyer fails to meet, comply with or perform any covenant, agreement, or. obligation on Buyer's part required within the time limits and in the manner required in this Contract, or (ii) Buyer fails to deliver at Closing, the items specified in Section 5.02(b) of this Contract for any reason other than a default by Seiler under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedies. If 6.02(a) occurs, Seller may: (i) terminate the Contract and retain the Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific performance. ARTICLE V11 MISCELLANEOUS 7.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Ronnie Dunn and Ross L. Dunn 1252 FM 399 Post, TX 79356 Copies to: For Seller: John C. Cox, Esq. K&L Gates, LLP 1717 Main, Suite 2800 Dallas, Texas 75201 Telecopy: (214) 939-5849 BUYER: Attn: Dave Booher City of Lubbock 162513th Street Lubbock, Texas 79401 Telecopy: (806)775-3074 For Buyer: Attn: Marsha Reed City of Lubbock 162513th Street Lubbock, Texas 79401 Telecopy: (806)775-2051 The parties may change their address effective in the same manner as other notices provided hereunder. 7.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN THE COUNTY WHERE THE PROPERTY IS LOCATED. 7.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Easement, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought 7.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 7.05 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. 7.06 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 7.07 Agreement in Lies of Condemnation. This Contract and the Easement Agreement are entered into by Buyer and Seller as a settlement and compromise lieu of condemnation and the consideration set forth herein and the covenants and agreements of the Buyer set forth in the Easement Agreement are given to Seller in compensation for the acquisition of the Easement in accordance with the Easement Agreement This Section 7.07 shall survive Closing and the execution and delivery of the Easement Agreement. 7.08 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City Council of the City of Lubbock to the Deputy City Manager of Buyer, or his designee. When the context requires, singular nouns and pronouns include the plural. The undersigned represent and warrant their respective authority to execute this contract, and to convey the interest in property described herein. Executed by Seller on the day of 2010. 614411 i RONNIE DUNN ROSS L. DUNN Executed by Buyer on the . day of 2010. BUYER: CITY OF LUBBOCK TOM MARTIN, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Ryan J. Bigbee, Attorney for the City of Lubbock Exhibit A to Contract of Sale EASEMENT AGREEMENT SEE ATTACHED EASEMENT AGREEMENT STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF Subject to the terms and conditions set forth in this Easement Agreement (this "Agreement'), Ronnie Dunn and Ross L. Dunn ("Grantor") whose address is 1252 FM 399, Post, TX 79356, for and in consideration of the covenants contained herein and other good and valuable consideration to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 13t' Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, hereby grants unto Grantee an easement (the "Easement") subject to the terms of this Agreement through, over, under, upon, across and within the sixty foot (60') wide area described by metes and bounds on Exhibit A (the "Easement Area") situated in Garza County, Texas: The Easement shall be for the survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of (i) a single underground pipeline located within the Easement Area for the transportation of fresh water (the "Pipeline"), and (ii) the following equipment and appurtenances related to the Pipeline and situated within the Easement Area: conduits, drain (blow -off) valves, valve boxes, meter boxes, vents (air valves), manholes, manhole covers (with post around manholes), corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep well anode stations with power supplies, flow meters, system communication lines (including, but not limited to, fiber optic lines), splice boxes, and corrosion control equipment, corrosion monitoring equipment and other equipment and facilities related thereto (collectively, the "Pipeline Equipment `)(the Pipeline together with the Pipeline Equipment shall be collectively referred to herein as the "Pipeline S s�"). Further, Grantor hereby grants unto Grantee a temporary construction easement (the "Temporary Easement") for the construction and installation of the Pipeline System over an area sixty feet (60') in width located adjacent to, and abutting, the Easement Area (the "Temporary Easement Area") on the northeast side of the Easement Area as more specifically described on Exhibit A. The Temporary Easement shall terminate and expire upon the earlier of (i) completion of all construction activities related to that portion of the Pipeline System situated within the Easement Area, or (ii) June 30, 2014 (the "Anticipated Pipeline Completion Date"). In the event that the Pipeline System within the Easement Area has not been completed by the Anticipated Pipeline Completion Date, Gcantee shall have the option to extend the term of the Temporary Easement for up to two consecutive periods of two (2) years each with the first extension to commence on the Anticipated Pipeline Completion Date and the second extension to commence on the second anniversary of the Anticipated Pipeline Completion Date; provided, however, that the Temporary Easement shall in any event terminate and expire upon the completion of the Pipeline System within the Easement Area and thereafter be of no further force and effect.. In order to exercise its right to extend the Temporary Easement as aforesaid, not later than thirty (30) days prior to the Anticipated Pipeline Completion Date (or the second anniversary of such date if the Temporary Easement has already been extended) Grantee shall deliver to Grantor written notice that it intends to extend the Temporary Easement and pay to Grantor of the sum of $ [* * 10% of the amount in paragraph 12(i) below**J_ for each requested two (2) year extension. Upon request of Grantor, after completion of that portion of the Pipeline System situated within the Easement Area, or the termination and expiration of the Temporary Easement, Grantee shall execute and deliver to Grantor a release of the Temporary Easement in a form acceptable for filing. The Easement and Temporary Easement are specifically made by Grantor and accepted by Grantee subject to the following terms, covenants, obligations and conditions: 1. Permitted Uses. Grantee may use and occupy (a) the Easement Area for the sole purpose of. (i) survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline and Pipeline Equipment; (ii) the construction, installation, maintenance and repair of a pipeline trail road within non -cultivated areas of the Easement Area, and (iii) ingress, egress and regress for people, material, and equipment along, over and across the Easement Area to accomplish the purposes stated in paragraph 1(a)(i) provided that after completion of construction of the Pipeline System situated within the Easement Area, and except in cases of emergency or repair,, on cultivated land ingress, egress and regress shall be permitted in, but limited to, the use of then -existing turn rows, and (b) the Temporary Easement Area (during the term thereof) for the sole purpose of. (i) survey, construction and installation of the Pipeline and Pipeline Equipment; (ii) ingress, egress and regress for people, material, and equipment along, over and across the Temporary Easement Area to accomplish the foregoing, and (c) during the term of the Temporary Easement, the Easement Area and the Temporary Easement Area may be used for the temporary storage of materials and equipment (including pipe for the Pipeline and Pipeline Equipment) (collectively, the "Permitted Uses"). Grantee shall use the Easement Area and the Temporary Easement Area (for the term thereof) for the Permitted Uses, and activities reasonably related thereto, and for no other purposes or uses. 2. Legal_ Requirements; No Interference. Grantee covenants and agrees that its use of the Easement Area and Temporary Easement Area, and its operations conducted thereon, shall at all times comply with this Agreement and all material applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all material environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and the safety guidelines shown on Exhibit B attached hereto and made a part hereof. Further, Grantor and Grantee shall each conduct their activities in such a manner as to not unreasonably interfere with, or cause disruption to, the other's business, operations and property or those of a third party entering or crossing the easement. 3. Due Care. Grantee covenants and agrees to construct the Pipeline System, and to perform its obligations under this Agreement, in a prudent manner and with due professional care for Grantor's property, business and operations, and according to standard industry practices. 4. Construction Specifications. Grantee covenants and agrees to construct, maintain, repair and replace the Pipeline System in the Easement Area in accordance with the following: (a) Minimum Pipeline Depth. The Pipeline System shall be so located or shall be buried at a sufficient depth so it will not interfere with farming activities currently in practice and cultivation of the soil at the soil levels as they exist at time of execution of this Easement and, in any event, the Pipeline shall be buried at such depth as will allow a minimum coverage of forty-eight inches (48") for current ranchland and a minimum coverage of sixty inches (60") for current farmland. Any Pipeline Equipment that will be installed above plow depth on cultivated lands shall only be installed at the locations identified on Exhibit C or, if no locations are specified on Exhibit C, at such other locations that will not interfere with farming activities and which are approved in writing by Grantor, such approval not to be unreasonably withheld. (b) Ditching. Unless determined by an outside engineer to be impractical due to the existence of rock or material elevation change, all ditching shall be in accordance with the "double ditch" method whereby the top eighteen inches (18") of soil (the "Top Soil") shall be removed from the Pipeline trench (the "Trench") and stored in a pile that is segregated from all other material and debris, and the remaining soil (the "Bottom Soil") shall be removed from the Trench and stored in a pile that is segregated from the Top Soil. When the Trench is refilled after the Pipeline has been laid and the Pipeline Equipment installed, the Bottom Soil shall be placed in the trench first leaving room to fill the uppermost eighteen inches (18") of the Trench to be filled with Top Soil. Top Soil shall be used to fill the remainder of the Trench. Any Bottom Soil remaining after filling the Trench shall (i) on cultivated lands, be removed from the Easement Area and disposed of off of the property of Grantor, and (ii) on uncultivated lands, shall be spread over the Easement Area and Temporary Easement Area in a manner acceptable to Grantor and that will not restrict or limit the re -growth of natural vegetation. Rocks or other debris arising in connection with clearing the Easement Area and ditching the Trench for the Pipeline System shall be removed as set forth in Paragraph 4 N below. As stated above, single ditching shall be allowed in all areas where "double ditching" is impractical (as determined by an outside engineer) due to the existence of rock or material elevation change. (c) Trench Leveling. Within uncultivated areas, upon completion of construction of the Pipeline System, excess material may be mounded over the Trench and covered with Top Soil; provided that the mound will be limited to a maximum of one foot (1') in height and will be graded to allow natural drainage. Within cultivated areas, upon completion of construction of the Pipeline System, the Easement area shall be leveled to grade (or as otherwise agreed to by Grantor in writing). In all instances the Easement Area and Temporary Easement Area shall be cleaned up in a professional manner. (d) Maximum Open Segments. The construction, installation, maintenance and repair of the Pipeline System shall be performed in segments so that there is never more than one thousand feet (1000') of open Trench at any one time and no open segment shall be open for more than seven (7) days; provided, however, that excavations for pipeline appurtenances and tunnel/bore crossings may remain open for up to thirty (30) days. (e) Compaction. Grantee shall mechanically compact all fill material to prevent any subsidence. To the extent there exists or hereafter arises any subsidence or erosion arising in connection with the construction, installation, maintenance or repair of the Pipeline System, Grantee shall refill with top soil, re - compact and re -grade all affected areas and take any further action reasonably required to return the surface to a substantially similar, or better, condition than adjacent undisturbed areas and prevent future subsidence or erosion. In furtherance of the foregoing, Grantee shall inspect the Pipeline at an interval of (i) six months, (ii) twelve months, and (iii) eighteen months after initial Pipeline System construction, and promptly refill and re -compact any subsidence or erosion existing at such times in order to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and take any further action reasonably required to prevent future subsidence or erosion. The inspections periods set forth above are not intended to be a limitation on Grantee's ongoing duty to fill, compact and maintain the grade of the land around the Pipeline. Accordingly, in the event that Grantor at any time discovers any subsidence or erosion after the installation of the Pipeline (whether before or after expiration of the inspection periods provided for above), Grantor may provide notice of such subsidence or erosion to Grantee. Within thirty (30) days' after Grantee's receipt of such notice, Grantee shall commence and thereafter diligently and without unreasonable delay refill with top soil, re -compact and re -grade all affected areas and take any additional action as may be reasonably required to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and to prevent future subsidence or erosion. (f) Disc Plowing. If requested by Grantor, after completion of construction of the Pipeline the top 6 to 12 inches of the Easement Area and Temporary Easement Area through cultivated fields shall be disc plowed to loosen up soil for fanning operations. (g) Gates. Grantee shall install gates at each existing fence to be crossed within the Easement Area and the Temporary Easement Area in order to enable Permitted Uses for the Pipeline System. Before a fence is out by Grantee, Grantee will set H-braces on the outside boundaries of the Temporary Easement and Easement Area (e.g, 120 feet apart) then tie -off and cut the fence adjacent to each H-brace. The Grantee shall then set temporary T-pasts and string barbed wire along the 120 foot opening and install a temporary barbed wire gate or gates, as needed. At the time of construction through the affected area, the Grantee will remove the temporary T-posts so as to permit construction activities. At night, Grantee will install temporary fencing. Upon completion of the subject Pipeline section, Grantee will install interior H-braces and a permanent 14 foot gate(s). Grantee will then install permanent T-posts and barbed wire to connect the H- braces. Fences, gates, gate posts and corners installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made apart hereof and shall be installed with professional care and according to standard industry practices. All gates installed by Grantee shall be made of painted steel pipe. Except during construction as described above, all fence gates on the exterior of Grantor's property shall be closed and locked at all times, unless Grantor in its sole discretion consents to temporary cattle guards or other arrangements. All gates on the interior of Grantor's property shall be left as found. All cattle guards on the exterior of Grantor's property shall be closed and locked at night unless otherwise requested by Grantor. After construction, Grantee shall put a lock on all gates and Grantor may install its own lock on such gates; provided, however, that at all times Grantor and Grantee shall have full and complete access to the Easement Area. (h) Debris Removal. Grantee covenants and agrees that at Grantee's sole cost and expense any and all debris materials of any kind arising in connection with the construction, installation, operation, inspection maintenance, replacement, repair and removal of the Pipeline System, including trash, trees, timber, wood, bushes, shrubs and brush, and other debris materials (collectively, "debris"), shall be removed by Grantee from Grantor's property and disposed of properly so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Further, all rocks and rubble arising in connection with the construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline System will be removed from Grantor's property so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Notwithstanding the foregoing, Grantee and Grantor by mutual agreement may determine that (i) Grantee may shred or mulch trees, timber, wood, bushes, shrubs and brush and scatter such debris over Grantor's property, (ii) Grantee may bum trees, timber, wood, bushes, shrubs and brush, (iii) Grantee may store or scatter rocks and rubble at locations designated by Grantor, or (iv) any other reasonable method to dispose of trees, timber, wood, bushes, shrubs, brush, rocks and rubble. If any trees, timber, wood, bushes, shrubs and brush are burned on site, the Grantee shall maintain constant watch over burn piles with adequate firefighting equipment on site. Grantee further agrees that neither Grantee nor its employees, contractors, agents nor representatives will burn any trees, timber, wood, bushes, shrubs or brush cleared from the Easement Area or the Temporary Easement Area during burn bans designated by county officials. (i) Temporary Crossings. During construction of the Pipeline System, crossovers shall be installed by the Grantee over the Trench to provide access for Grantor (and Grantor's personnel, equipment and livestock) over the Trench to and from Grantor's adjacent property (i) over all existing paved or unpaved roads, (ii) for livestock (at no less than 500 foot intervals), and (iii) at such other locations as are reasonably designated by Grantor. Further, Grantee may, at Grantee's option, construct temporary fencing near any open hole or trench. 0) Reseeding. If any of the Easement Area or Temporary Easement Area consists of grassland, Grantee shall, using the recommended procedure (either via drill or broadcast), plant a native (e.g. native to the local area) seed mix of grass and fortis selected by Grantor but subject to reasonable availability. (k) Existing Terraces; Damage to Adjacent Property. (i) Terraces. Existing terraces in the Easement Area and Temporary Easement Area will be replaced upon the backfiil of the trench excavated in connection with the construction of the Pipeline System. In the event that the breach of any existing terrace results in any damage to Grantor's adjacent property or the breach of any down grade terraces (whether or not within the Easement Area or the Temporary Easement Area), Grantee shall repair any such damage and return the surface of affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (ii) Damage to Adjacent Property. In the event that the activities of Grantee (or any of its agents, employees, contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles) within the Easement Area or Temporary Easement Area result in any damage or erosion to Grantor's property located outside of the Easement Area or Temporary Easement Area, Grantee shall repair any such damage or erosion and return the surface of the affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (1) Diversions-, Terraces; Stream Beds. Grantee shall install water diversions and terraces where necessary or appropriate in order to divert water away fiom excavated areas, to prevent erosion and to permit the natural flow of water that existed prior to construction of the Pipeline. Further, where the Easement Area crosses any wet or seasonal stream beds, all Permitted Uses shall be conducted in a recognized manner to protect said stream beds and to prevent erosion (m) Blasting. Prior to blasting within the Easement Area, Grantee will notify Grantor. However, no blasting will be permitted within five hundred feet (500') of any existing buildings, pipelines or wells; provided, however, that Grantor shall provide written disclosure of the location of any such improvements that are located underground before such blasting. (n) Trail Road. The pipeline trail road shall not exceed twelve feet (12') in width. The trail road shall be constructed, repaired and maintained in a manner consistent with Grantee's needs and purposes; provided, however, such trail road shall include culverts and water diversions where appropriate to prevent washouts and erosion. Grantee shall level or fill all ruts and washouts and otherwise maintain the trail road on a reasonable basis. Grantor shall have use of such road within Grantor's property so long as Grantor's use does not unreasonably interfere with Grantee's use of the Easement Area and Temporary Easement Area. After completion of the construction of the Pipeline System and except in cases of emergencies, in order to avoid ruts and washouts, Grantee and Grantor shall use reasonable efforts to avoid the use of the trail road when wet. (o) Necessary Temporary Use. Grantee shall have the right to use Grantor's property located immediately adjacent to the Easement Area and Temporary Easement Area for the following: (i) On rangeland, detouring around natural impassable impediments within the Easement Area or Temporary Easement Area such as canyons, large boulders or large trees; or (ii) the repair and removal of equipment or vehicles stranded within the Easement Area or Temporary Easement Area, but only to the extent is there not sufficient area within the Easement Area and Temporary Easement Area to permit such repair and removal. Except as provided in this Paragraph 4(o), Grantee (and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them) shall not at any time go upon the property of Grantor outside of the Easement Area and Temporary Easement Area. To the extent that any such incursion upon the lands of Grantor adjacent to the Easement Area and Temporary Easement Area results in any damage to such lands, Grantee shall be liable for such damage and in any event covenants and agrees that the affected areas shall be returned to the condition that is substantially similar to, or better than, adjacent undisturbed areas. (p) Staking of Easement. Prior to commencement of construction of the Pipeline System, Grantee shall stake the exterior boundaries of each side of the combined Easement Area and Temporary Easement Area (e.g. the parallel lines, 120 feet apart, that mark the outside boundaries of the combined 60 foot Easement Area and 60 foot Temporary Easement Area). Such boundary shall be staked with clearly visible, above ground markers so that all parties can easily view the boundary of the easements. Such markers shall be maintained until completion of construction of the Pipeline System. (q) Tree Grubbing. Upon commencement of work on the construction of the Pipeline System (and prior to trenching), Grantee shall grub (using an excavator modified to grub mesquite) all mesquite within the Easement Area and shall also grub any mesquite that has been destroyed, damaged, bladed, or cut within the Temporary Easement Area. At its option Grantee may grub the entire Temporary Easement Area. All debris arising as a result of grubbing activities will be disposed of in accordance with Paragraph 4 above. Grantor acknowledges that Grantee is not liable for any re -growth of vegetation after any tree grubbing identified in this Paragraph 4 (a) or after any double ditching as identified in Paragraph 4 (b) and that re -growth of vegetation will occur over time. 5. Cure Period. In the event that Grantee is in violation of any of the terms of this Agreement, Grantor shall give written notice of, and an opportunity to cure such violation to Grantee. Grantee covenants and agrees within thirty (30) days of receipt of such notice to commence to cure, and thereafter diligently and without unreasonable delay pursue to cure, such violation; provided, however, that the cure of any subsidence or erosion will be completed within one hundred and twenty (120) days after receipt of such notice to commence to cure. b. Record Drawings To Be Provided to Grantor. Upon completion of the construction of the Pipeline System, Grantee shall, at Grantee's sole cost, provide to Grantor record drawings showing the location within the Easement Area of the Pipeline and each item of Pipeline Equipment. 7. Abandonment of Easement. Grantee may abandon the Pipeline System solely by an ordinance adopted by the City Council of The City of Lubbock, Texas (or any successor governing body of The City of Lubbock Texas) that authorizes the abandonment of the Pipeline System. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Easement Area is located. If Grantee should abandon the Pipeline System as aforesaid, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns, and title to the Pipeline System located within the Easement Area shall revert to Grantor, its successors and assigns and Grantor may, at its option, remove, dispose of and/or sell any pipe or Pipeline Equipment within the Easement Area. 8. Easement Term. The "Easement Term" is hereby defined as the period of time beginning with the Effective Date (hereinafter defined) and continuing until such time that the Pipeline System is abandoned by Grantee as provided in Paragraph 7 above. 9. Covenant to Maintain Pipeline. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, exercise due care and diligence in the use of the rights and privileges herein granted and keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate; repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement Area in good order, condition and repair and free of all debris following any work related to Permitted Uses on the Pipeline System. 10. Permits. Grantee shall be responsible for obtaining all permits necessary for Permitted Uses within the Easement Area and the Temporary Easement Area. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality relating to the Pipeline System and this Agreement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 11. Additional Uses. Subject to the limitations set forth in this paragraph, the Easement is non-exclusive and Grantor shall at all times have the right to (i) use and enjoy the Easement Area for any purpose not specifically prohibited herein; (ii) grant easements and rights of way over, under, upon, across and within the Easement Area to such persons as Grantor deems proper; (iii) construct and maintain improvements upon the Easement Area; and (iv) construct and maintain irrigation systems (including drip and overheard irrigation systems) and components and water distribution lines to cultivate and service Grantor's property (including the Easement Area), provided, however, (A) no buildings. or reservoirs may be constructed upon the Easement Area, (B) improvements (other than drip irrigation lines and overhead irrigation equipment) may not parallel the Pipeline within the Easement Area, (C) all power lines, pipelines (other than drip irrigation lines and overhead irrigation systems), and telephone and other telecommunication lines must cross the Easement Area at no less than a 45° (forty-five degree) angle, (D) underground power lines and any metallic pipelines (excluding irrigation water lines and water distribution fines used to service Grantor's property) must have a minimum separation of two feet (2') from the Pipeline and must meet industry standards in order not to adversely affect or damage the Pipeline, and (E) fences constructed by Grantor within the Easement Area must have gates installed so that Grantee at all times has access over and across the Easement Area. In the event that Grantor determines to construct (or grant the right to any third party to construct) improvements within the Easement Area that are not addressed above, Grantor shall provide not less than thirty (30) days prior written notice to Grantee during which time Grantee may have the proposed improvements analyzed by its outside engineers. If during such thirty (30) day period Grantee provides to Grantor a detailed analysis of why the proposed improvements will adversely affect the Pipeline or Pipeline System, Grantor shall not construct such improvements until such time as Grantor and Grantee's engineers agree upon a methodology for the construction of such improvements that will not adversely affect the Pipeline, such agreement not to be unreasonably withheld by either Grantor or Grantee. Grantee and Grantor will at all times use their good faith efforts to accommodate the needs and activities of one another. Grantee covenants and agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not unreasonably interfere with or endanger the operations or integrity of the Pipeline System. Grantee acknowledges and agrees that if the Easement Area is subject to one or more oil and gas leases in existence as of the Effective Date of this Easement, or if Grantor does not own the minerals under the Easement Area, Grantor does not have control over and is not responsible for, or liable for, compliance (or non-compliance) with this Paragraph 11 by any oil and gas lessee or mineral owner(s). 12. Compensation for Grant of Easement. As complete consideration for the execution and delivery of this Agreement by Grantor, contemporaneously with the execution hereof by Grantor the Grantee agrees to pay to Grantor (i) the sum of Eighty - Five Dollars ($85.00) per rod for a total of Ten Thousand Two Hundred Eighty -Eight and 05/100ths Dollars ($10,288.05) for the grant of the Easement and the grant of the Temporary Easement, (ii) the sum of ($ ? for damage to, or the replacement of, machinery and equipment (including irrigation systems and equipment) and • other personal property specified on Exhibit E, and (iii) the sum of for damage to crops. In the event that as a result of the time of year in which construction of the Pipeline will occur Grantor (or its lessee) will suffer crop losses for two consecutive years, prior to commencement of construction (or, if construction has already commenced, but was delayed or extended, prior to continuation of construction) Grantee shall pay to Grantor an additional sum for crop losses in the amount specified in item (iii) above. The foregoing consideration constitutes payment to Grantor and Grantor's successors, assigns, or agricultural lessees or tenants, if any, for the grant of the Easement and Temporary Easement and for damage to the specified equipment, machinery and crops resulting from the initial construction and installation of the Pipeline System. The market value of any damaged crop shall be calculated using the following formula: Affected Acres X Yield Per Acre X Unit Price for the affected crop = damages to be paid, where (i) the amount of the affected acreage will be reasonably determined by the Federal Farm Service Agency in the county where the premises is located, or if the Federal Farm Service Agency fails or refuses to make such calculation, as reasonably determined by Grantor, (ii) yield per acre will be the average of the previous three (3) years' yields according to the Grantor's (or Grantor's lessee's) records for the affected parcel, but if the Grantor (or Grantor's lessee) does not have yield records available, the parties will use Federal Farm Service Agency records or other commonly used yield information available for the area, and (iii) unit price will be based upon the average of the last previous March Ist and September 0 prices for the affected crop as set by the Chicago Board of Trade, New York Cotton Exchange, Kansas City Board of Trade, or other similar exchange, as appropriate for the affected crop. Notwithstanding the foregoing, the Parties hereto agree that the unit price for damages to cotton crops shall be $0.52 per pound. 13. Title. (a) Grantee acknowledges that at its sole cost and expense it has researched the title to the Easement Area and the Temporary Easement Area and, where it deemed it necessary, obtained abstracts or certificates of title or title insurance to such property. Grantor represents that to the best of its knowledge set forth on Exhibit F is a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject property, and (iii) all unrecorded easements granted by Grantor which encumber the subject property. Grantor will provide Grantee, at least thirty (30) days prior to the execution of this Agreement, with all documents identified and to be attached hereto as Exhibit F. The grant of the Easement herein contained is subject to (A) all items disclosed on Exhibit F, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property (which Grantor understands that Grantee has received and reviewed), (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rigbts-of-way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date. It shall be the obligation of Grantee to procure and have recorded without cost to Grantor all assurances of title and affidavits which Grantee determines are necessary and proper to show in Grantor title sufficient to grant this Easement. The expense of recording this Agreement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, at no expense to Grantor, to obtain any curative documents needed to the extent such cure would not affect Grantor's title. (b) If Grantee or Grantor determines that the easement intended to be conveyed to Grantee and described herein, or any part thereof or undivided interest therein, should be acquired by judicial procedure, either to procure good title or for any other reason, then Grantor and Grantee hereby stipulate that (i) an agreement, in the same form as this Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Grantor for the easement obtained by Grantee by judicial procedure, shall be the same as the consideration stated in Par, ag aph 12, but should the Grantor own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Grantee and described herein, such award shall not exceed that portion of the consideration stated in Paragraph 12 which the value of such lesser interest of Grantee bears to the value of the entire Easement Area or Temporary Easement Area described herein. 14. Recreation; Firearms, Hunting, Fishing, Dogs, Artifacts. At no time shall Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them (i) enter upon the Easement Area or Temporary Easement Area for sightseeing or other recreational purposes, all access being limited to Permitted Uses, (ii) kill or remove from the Easement Area any plants (other than in connection with Permitted Uses) or any reptiles, fish, birds or animals or any artifacts (including arrowheads) or other archeological items of any kind, (iii) bring upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor) any firearm (whether rifle, pistol, shotgun), bow of any type, arrow, trap, snare, net, fishing rod, or any other means whatsoever of taking wild game, fish or fowl, (iv) hunt, fish or trap upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), (v) bring dogs upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), or (vi) subject to the provisions of Paragraph 4(o) above, enter upon any part of the land of Grantor outside of the Easement Area or the Temporary Easement Area, or (vii) take any photographs in the Easement Area except in connection with Permitted Uses and for no other purposes, it being understood and agreed that all commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. Any person in violation of the foregoing shall be a trespasser and Grantee covenants and agrees not to interfere with the prosecution of any person accused of the foregoing and to prohibit any such person from thereafter going upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). Grantee consents and agrees that Grantor shall have the right at any time to inspect the interior of any vehicle brought upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). The Grantee, shall include a covenant similar to the above in all contracts with any contractors having access to the Easement Area or the Temporary Easement Area. 15. Gender, Plural. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 16. Indgumi1y. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor and Grantor's family, officers, agents, servants, employees, representatives, contractors, independent contractors, and subcontractors (each, an "Indemnitee") harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs; collectively, the "Covered Losses"), that may be suffered or incurred by an Indemnitee, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement Area or the Temporary Easement Area after the Effective Date to the extent arising in whole or in part out of or in connection with any negligence or willful misconduct of Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles. When any losses, claims, demands, or causes of action of the types described above are the result of joint or concurrent negligence or willful misconduct of Grantee and Grantor or their respective employees, contractors or agents, it is understood and agreed that Grantee's indemnity obligations shall be effective and shall cover all such losses, claims, demands, or causes of action notwithstanding any negligence on the part of Grantor or Grantor's, employees, contractors (including independent contractors and subcontractors), agents or invitees. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the Easement and/or any rights granted hereunder, and Grantor shall be solely limited to the remedy of money damages for such claims. 17. Indemnity Regarding Pollution. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold each Indemnitee harmless from and against all Covered Losses of whatsoever nature arising from pollution or contamination emanating from the Pipeline System (the "Grantee pollution liabilities"); provided, however, that "Grantee pollution liabilities" shall exclude any pollution liabilities arising from any condition existing before the effective date of this Agreement. Grantor hereby releases Grantee from and against all Covered Losses of whatsoever nature arising from (i) pollution emanating from the property and equipment of Grantor, (ii) any condition existing before the Effective Date, (iii) pollution or contamination migrating or having migrated on, under, or to the Easement Area from any other location, and (v) the possession, occupation or use by Grantor (or any third party under rights granted by Grantor) of Grantor's property. 18. Insurance. During the construction and installation of the Pipeline System, Grantee shall maintain, or cause its primary contractor to maintain, comprehensive generally liability insurance in the amount of $1,000,000 and umbrella liability insurance in the amount of $2,000,000, covering "all risks" associated with the Permitted Uses of the Pipeline during construction and installation of the Pipeline System. Upon request Grantee shall provide a copy of such policies, and all renewals and replacements thereof, to Grantor. 19. Easement Only. It is understood and agreed that this Agreement is not a conveyance of the fee estate for any of the Easement Area, but is only an easement through, -over, under, upon, across and within the Easement Area and the Temporary Easement Area (for the term thereof). 20. Binding Agreement; Assignment. The provisions of this Agreement shall be binding upon and inure to the benefit of Grantor and Grantee and their respective successors, heirs and assigns; provided, however, Grantee shall not assign this Easement without the prior written consent of Grantor which consent shall not be unreasonably withheld. 21. Final Agreement. This Easement and the Exhibits attached hereto contain the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. Each Exhibit attached hereto shall be a part of, and incorporated into, this Agreement. 22. Unenforceable Provisions. 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 unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 23. Notices. Any notices or demands provided to be given herein by the parties shall lie in writing and sent by facsimile or email (if a facsimile or email address is provided below) or mailed by certified mail or hand delivered to the other party at the address set forth below. In addition, telephone notices described in Paragraph 26 below shall be permitted to the telephone numbers set forth below. Notice of any breach of this Agreement must be in writing and mailed by certified mail or hand delivered to the other party at the address set forth below. Each party may rely on the addresses and contact information set forth below until changed in accordance with this Agreement. If Grantee determines that, Grantor has conveyed the subject property without providing contact information for the new owner, Grantee may rely on the records of the local appraisal district. Either parry may change its contact information for notices to it by written notice to the other party. Any notice or demand shall be deemed to have been received the earlier of (i) three (3) days after the date of mailing, (ii) the date of actual delivery as shown by the addressee's certification or registry receipt. or (iii) the date of hand delivery. Grantee shall provide and maintain a person for emergency contact who is available at the below telephone (or such different phone number as set forth in notice from Grantee to Grantor). Grantee: The City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Facsimile: (806)775-2051 Email: MReed@mail.ei.lubbock.tx.us Contact Person: Marsha Reed Emergency contact: Emergency phone number: _ Grantor: Ronnie Lunn and Ross L. Dunn 1252 FM 399 Post, TX 79356 Facsimile: {� Email: Contact Person: Phone number: Cell number: (__) 24. Access Notice. Telephonic notices are acceptable for notice of emergencies and for inspections of the Easement Area, however, with regard to notices of inspection if the contact person cannot be reached by telephone, written notice must be provided. Except in the event of emergencies, after completion of construction of the Pipeline the Grantee shall provide at least 24 hour prior telephonic notice to Grantor prior to accessing the. Easement Area. Voice mail messages shall not constitute notice hereunder. 25. Notice to Future Users. Grantor and Grantee agree and hereby give notice to any oil, gas, mineral, water, wind or energy lessee or grantee acquiring (after the Effective Date) any interest overlying or underlying the Easement Area, that Grantee will be operating the Pipeline System and conducting Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted in the vicinity of the Easement Area which would unreasonably interfere with the operations or integrity of the Pipeline System. Further, to the extent Grantor owns the oil, gas and other minerals under the Easement Area, Grantor hereby waives the right to use the surface of the Easement Area for the drilling of any oil or gas wells subject, however, to the rights of any lessee under any oil, gas and other mineral lease in existence as of the Effective Date. 26. Mineral, Water Reservation. Grantor reserves and excepts from this Easement and retains for Grantor and Grantor's successors and/or assigns, all rights to explore for, to drill and produce wind, water, oil, gas and other minerals of every kind and description underlying or situated beneath the Easement Area by any means whatsoever, including wells or mines directionally drilled from surface locations on nearby lands so long as no surface operations are performed on the Easement Area and so long as such operations do not interfere with or endanger the operations or integrity of the Pipeline System. 27. References to Grantee. Where appropriate in this Agreement, references to Grantee in connection with the performance of Permitted Uses shall include Grantee and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 28. Limitation on Damages. Neither party shall be liable to the other party or any of such party's affiliates in any action or claim including without limitation, any action or claim for indemnity, for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 29. Force Majeure. When a time period is specified herein for the performance by either party of its obligations hereunder (except for the payment of money), such period shall be extended by the period that such party's performance is prevented by reason of windstorm, hurricane, tornado, flood, earthquake or other acts of God or by war, :lot, insurrection or workers' strike or by the unavailability of materials (each, an act of "Force Majeure'), however, in order for either party to take advantage of the extension provided above for an act of Force Majeure, such party must give written notice to the other party within five (5) days of the commencement thereof and must immediately commence performance of its obligations when the effect of the Force Majeure event has subsided. TO HAVE AND TO HOLD said Easement, together with all and singular, the rights and appurtenances thereto in anywise belonging unto Grantee, its successors and assigns during the Easement Term, subject to the terms and conditions hereof. The effective date of this Agreement (the "Effective Date") shall be the date this Agreement is last signed by Grantor or Grantee. [ Signatures of the Patties on Next Page EXECUTED this day of , 2010 (the "Effective Date"). ROSS L. DUNN GRANTEE: The City of Lubbock TOM MARTIN, Mayor [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Terry Grantham Attorney for the City of Lubbock Zach Brady Attorney for City of Lubbock John Cox Attorney for Landowner STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on DUNN. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF 2010, by RONNIE This instrument was acknowledged before me on , 2010, by ROSS L. DUNN. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on MARTIN, Mayor. Notary Public, State of Printed Name of Notary My commission expires: 2010, by TOM Exhibits: A - Metes and Bounds Description of Easement Area B - Pipeline Right -Of -Way Safety Guidelines C - Location of Surface Pipeline Equipment D - Gate Construction Detail and Specifications E - Equipment Covered by Damage Payment under Paragraph 12(ii) F - Unrecorded Leases and Agreements, Unrecorded Deeds of Trust and Unrecorded Easements Exhibit A Survey and Metes and Bounds Description of the Easement Area rn J. Donald Basinger Vol. E51 Pg.677 o �(�j r EXHIIBT 'A' Page 1 of 3 7 3 BIfOGK 0 - 16 /FD. CONC. MON. FD. CONC. MON. 7 S 874 59'20" E 2758.9' Q. 1-'� 6. I�. i6uKVg�Y i &AKZA GOUNrY, TEXAS Moore & Runkles Vol.166 Pg.848 'zo y n' Ito 1 } - Lance Dunn ` LO VoI 9J5 Pg.351 I � � l Barlk S 87° 59`4$" E 3980.1' 'V) Investments 0) Vol.45 Pg.613 ° W Permanent Esmt. 2 7 P . Ronnie Dunn 1 z 6fYTemppoatra � �•235 349 ` � Canst.Esmt. f2J3 AC. PermanntE �J f.tfWs V /� \�., 3 2 Y•7171260.73 FD. CONC, MON. Q• S 88° 00-05" 754.4' ............. 1 240 , g7-�i' . 7.3E \ 12,10 1234 Randall Adams Vo1239 Pg.849 J. NAYS 6UKVEY • - Set I/2" Iron Rod With Cop A legal description of even survey date herewith accompanies this survey plat. Sur arpon the ground- arch May, 2009 Registered r fessionalLand Survey',ar:,'ti`�;x' ,tc :` • . '':=�� is . Date ' S-.S•. AIINorthings and Eastings shown are project coordinates and may be converted to Texas State Plane Coordinates, North Central Zone, NAD83 by dividing by a surface Si adjustment factor of 1.0002396 All distances shown ore surface distances. Cl DI Beorings shown ore grid bearings based on the Texas SI State Plane Coordinate System, North Central Zone, FI NAD83 Datum. This survey and olliniormation hereon is for the exclusive use of CITY OF LUBBOCK and sholl not be copied or used except for the purpose for which it is expressly furnished. this drawing and all copies (partial or complete) shoilbe returned to the owner upon demand. : t' - 1000' 1 REVISION: I PLAT DATE: 4- ': PARKHILL SMITH & COOPER - CITY OF LUBE 1 BY: B. BURROW I SURVEY DATE: 3 I 33M lath ST SIRTE 202 • 1.e8OCK, Tx. 79413 <805I 788.0020 • FAX f8061 792-1545 EXHIBIT "A" Page 2of3 PARCEL NO.27 RONNIE DUNN Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 3, Block D-18, D. & S.E. Survey, Garza County, Texas and said pipeline centerline being described as follows: Beginning at a 1/2" iron rod with cap, set on the North right of way line of F.M. 211, for the beginning of this description, from whence a 4"x4" concrete monument found for the South Quarter corner of said Section 3, bears South 1°56'55" West, a distance of 49.05 feet and South 88000'05" East, a distance of 877.32 feet, said point of beginning having a project coordinate of Y = 7171260.73 and X = 1052841.90; Thence North 0000'00" West, along the centerline of said Sixty -Foot (60) wide permanent pipeline easement, a distance of 25.01 feet to a point; Thence North 77°19'34" West, along the centerline of said Sixty -Foot (60) wide permanent pipeline easement, a distance of 586.08 feet to the beginning of a curve to the right; Thence along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 121.93 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 12008'57"; Thence North 65010'36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1252.41 feet to a 1/2" iron rod with cap, set on the East right of way line of a Sixty -Foot county road, for the end of this description, whence a 8"x8" concrete monument found for the West Quarter corner of said Section 3, bears North 880001051, West, a distance of 30.00 feet and North 1049'03" East, a distance of 1936.73 feet. Containing 120.33 rods. (2.73 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 2.89 acres of land. The said temporary construction easement shall expire as noted In the easement agreement. ♦,r HIGH-TECH LAND AND GPS SURVEYORS, INC. 3330 70th St., Suite 202 - Lubbock, Texas 79413 (806) 788-0020 • Fax (806) 792-1646 EXHIBIT "An Page 3 of 3 Notes: 1. A survey plat of even survey date herewith accompanies this legal description. 2. Surveyed on the ground March -May, 2009. 3. Bearings shown are grid bearings based on the Texas State Plane Coordinate System, Texas North Central Zone, Nad83 Datum. 4. All distance shown are surface distances. S. Surface adjustment factor for entire project is 1.0002396 Registered Pqhf6ssional Land Surveyor -me^�-.r rf r•nMnr r- Date:� r'C's l�ir - . rr �+ HIGH -?TECH LAND AND GPS SURVEYORS, INC. 3330 70th St., Suite 202 • Lubbock, Texas 79413 (806) 788-0020 • Fax (806) 792-1646 Exhibit B Pipeline Safety Guidelines So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the Easement, as well as applicable laws and regulations: 1. Except during construction or maintenance of the Pipeline, driving within the Easement Area is limited to use of currently established roadways, if any, and any trail roads constructed by Grantee on non -cultivated lands. 2. Smoking outside vehicles within the Easement Area or lands or premises is prohibited. 3. No firearms, drugs, or alcohol are permitted in the Easement Area and no photographs may be taken in the Easement Area except in connection with Permitted Uses and for no other purposes. All commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. 4. Pedestrians and non -motorized traffic have right-of-way over motorized traffic 5. The maximum speed limit within the Easement Area is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 6. Use horn for safety at blind corners and when passing. 7. Use established hand signals or turn indicators 8 Observe all signs including pipeline markers. 9. Come to complete stop on entering or leaving gates within the Easement Area. 10. All persons entering the Easement Area must be fully clothed. 11. No debris or trash shall be discarded on the Easement Area or the Temporary Easement Area. Exhibit C Locations of Surface Pipeline Equipment No Text No Text Exhibit D Gate Construction Detail and Specifications 6"XW-6" SCH GO PIPE V!/yc" 14'-0" TOP PLATE — — "' —""' — -- NOTES FQR FENCES AND GATE — 3" COLLAR 1. GATES TO BE INSTALLED AT ALL FENCE CROSSINGS, UNLESS 2" SCH. 40 PIPE OTHERWISE DIRECTED BY THE OWNER. — 2. ALL STEEL GATES. POSTS, CROSS BRACES, ETC., SHALL BE PAINTED BLUE. 3. PROVIDE i" LINK CHAIN AROUND GATE AND WELD TO SUPPORT i—!h" SCH 40 PIPE . i POST. PROVIDE ONE HEAVY DUTY LOCK PER GATE KEYED PER OWNER'S i 1 , LOCKS. i 4. CONTRACTOR SHALL VERIFY EXACT LOCATION OF ALL GATES WITH OWNER PRIOR TO CONSTRUCTION. x ya" GUSSET PLATE S. BARBED WIRE SHALL BE 127E GA. GALVANIZED BARBED WIRE. MINIMUM 5 STRAND FENCE OR AS PER EXISTING FENCE. WHICHEVER WELD ALL AROUND IS GREATER. WHERE EXISTING FENCE HAS PANEL FABRIC, INSTALL f I" SCH. I 12" SCH. 40 PIPE (TYPICAL) 39 PANEL FABRIC PATH 3 STRAND BARBED WIRE, 47" PANEL 10 PIPE I FABRIC WITH 1 STRAND BARBED WIRE MINIMUM OR AS PER EXISTING, 18" DIA WHICHEVER IS GREATER. j HOLE (TYP.) 6. CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONCRETE CONNECT TO EXISTING FENCE, PRIOR TO CUTTING EXISTING FENCE. i ! NOTE: ALL CONNECTIONS ARE 7. DIMENSIONS SHOWN ARE FOR FENCES CROSSING AT PERPENDICULAR WELDED ALL AROUND. I ANGLE TO PIPELINE, WHERE FENCE CROSSES PIPELINE AT SKEWED ANGLE, DIMENSIONS SHALL BE INCREASED ACCORDINGLY. GATE DETAIL SCALE[ 1/2"a I'—O" WW-6" SCH. 2" SCH. 40 P1PE—�, 40 IPE /—TOPPPLATE y<' ol /• SEE NOTE 5 SEE DETAIL "C" —6" SCH. I GT — SHAPE POST v W/y4" j 6'-6' LONG (1.33 Ig/FT.} 4TE Ij W/ANCHOR PLATE TAIL "A" !I lEET ' CONCRETE to - TYPICAL GATE SUPPOR,Z DETAIL SCALE: SINGLE SWING GATE SECTION r mz5 I O � r � u. 2 �n 4"x4" MESH WELD 18" DIA. 70 GATE FRAME HOLE (TYP.) 1" LONG ON 6" C/C Exhibit E Equipment Covered by Damage Payment under Paragraph 12(ii) Exhibit F Unrecorded Leases, Unrecorded Agreements, Unrecorded Deeds of Trust, and Unrecorded Easements Resolution No. 2010-RO163 MEMORANDUM OF LEASE STATE OF TEXAS § COUNTY OF GARZA § This MEMORANDUM OF LEASE ("Memorandum") is made and executed to be effective as of February 27, 2008 by and among RONNIE DUNN (collectively, and together with their successors and assigns hereunder, "Owner"), and FREMANTLE ENERGY LLC, a Delaware limited liability company (together with its successors and assigns hereunder, "Tenant"). RECITALS: A. Owner is the owner of approximately 107 acres of land (the "Land") situated in Garza County, Texas, described in Schedule I attached to and made a part of this Memorandum, together with all and singular (i) the wind and air rights on or pertaining to the Land (the "Wind Rights") and (ii) all other rights, interests, privileges and appurtenances pertaining to the Land, X including any easements and other rights as may be necessary for ingress, egress and W maintenance of the Land and any and all right, title and interest of Owner in and to adjacent CJ roads, streets, alleys or rights -of -way (such items in clause (ii) collectively, the "Other Appurtenances"). The Land, Wind Rights and Other Appurtenances are collectively referred to herein as the "Leased Property". B. On February 27, 2008 (the "Effective Date"), Owner and Tenant entered into a Lease Agreement (the "Lease") pursuant to which Owner leased to Tenant and Tenant leased from Owner the Leased Property. C. Owner and Tenant desire to execute this Memorandum to provide constructive notice of Tenant's rights under the Lease to all third parties. NOW, THEREFORE, for and in consideration of the mutual covenants and benefits herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Tenant hereby agree as follows: Section 1. Purpose of Memorandum. The purpose of this Memorandum is to give record notice of the Lease, and of the rights created thereby, all of which are hereby confirmed. The parties, however, advise all parties acquiring interests subsequent to the date of this Memorandum, that the Lease and any and all documents executed in connection therewith, may be amended from and after the date hereof with the consent of the parties thereto, and without amendment of this Memorandum. Without limiting the generality of the foregoing, the Lease, as the same may be amended from time to time without amendment of this Memorandum, shall be binding upon all parties taking interests in the Land subsequent to the date of recordation of this Memorandum. As such, all such parties are hereby on notice that they should inquire as to the terms of the Lease as in effect from time to time, and that third parties may rely on this Austin 905479v.1 Pagel of 6 BOOK 2 9 8 PAGE 14 t)' Memorandum solely for record notice of the existence of the Lease and certain of the provisions thereof as of the date of this Memorandum, and not with respect to the specifics of the terms thereof as the same may be in effect from time to time. Section 2. Term of Lease. After the Development Period, the Primary Term shall be for thirty (30) years from the Production Commencement Date, unless extended or sooner terminated as provided in the Lease. Tenant may, at its option extend the Primary Term for two (2) successive periods of ten (10) years each by written notice to Owner at least ninety (90) days prior to the last day of the Primary Term (as the same may have been extended). Section 3. Purpose of Lease. The Lease is for wind energy conversion to electricity on the Leased Property and for the collection and transmission of electric power, by developing and operating wind powered electricity generating projects on the Leased Property and other property, and for related activities and such Lease includes, without limitation, the following rights and privileges for Tenant: (a) the right to develop, erect, construct, install, replace, relocate, repair, remove, maintain, operate and use from time to time, wind turbines (and the foundations, footings and other appliances and fixtures for use with such wind turbines), underground and above -ground electrical transmission and communications lines related to the U0 0 operation of wind turbines, electric transformers, energy storage facilities, W telecommunications equipment, roads, meteorological towers and wind measurement equipment, control buildings, maintenance yards, and related facilities and equipment necessary and/or convenient for the operation and maintenance of one or more wind energy projects on the Leased Property and/or other property, in accordance with the Lease; (b) the right to capture and to convert all of the wind resources of the Land; (c) the right to develop, erect, construct, install, replace, relocate, remove, maintain, operate and use the following from time to time in connection with wind energy projects, whether located on the Leased Property or elsewhere, (i) a line or lines of poles or towers, together with such wires and cables as from time to time are suspended therefrom, and/or underground wires and cables, for the transmission of electrical energy and/or for communication purposes, and all necessary and proper anchor, support structures, foundations, footings, crossarms and other appliances and fixtures for use in connection with said towers, wires and cables; (ii) one or more substations or interconnection or switching facilities from which Tenant or others that generate energy may interconnect to a utility transmission system or the transmission system of another purchaser of electrical energy; and (iii) roads associated with the foregoing (such towers, wires, cables, substations, facilities and other enumerated items in clauses (i), (ii) and (iii) are herein collectively called the "Transmission Facilities"); (d) the right in connection with the use of the Leased Property, of pedestrian and vehicular ingress, egress and access over and across the Land by means of roads and lanes thereon if existing, or otherwise by such route or routes as Tenant may construct or improve from time to time; and Page 2 of 6 BOOK 2 9 S PAGE 14 Austin 905479v.I (e) any and all right of Owner to select, determine, prohibit or control the location of sites for drilling and/or exploration of minerals in, to and under the Land. Section 4. Ownership of Wind Energy Projects. Under the Lease, Owner covenanted that, except as otherwise provided in the Lease, Owner had no ownership or other interest in any Improvements (as defined below), and that Tenant could remove any or all such Improvements at any time. As used in the Lease, the term "Improvements" means all WTGs (as defined below), Transmission Facilities, structures, equipment, machinery, wire, conduit, fiber, cable, poles, materials and property of every kind and character constructed, installed and/or placed on, above or below the Leased Property by or on behalf of Tenant. "WTG" means any wind turbine generator or wind machine designed for the generation of electrical power from wind power, including without limitation, the associated towers, support structures, guy wires, braces and directly related equipment. Section 5. No Liens. Under the Lease, Owner is not allowed, without the prior written consent of Tenant, to create or permit to be created or to remain, any liens, encumbrances, leases (except for agricultural, ranching and hunting leases), mortgages, deeds of trust, security interests, licenses or other exceptions with respect to the Leased Property or any part thereof. Any such rights granted without Tenant's consent are void ab initio. tz Section 6. No Interference; No Third Party Rights. Owner covenanted and agreed under the Lease that Tenant would have the quiet use and enjoyment of the Leased Property in accordance with the terms of the Lease without hindrance or interruption from Owner or any other person or persons. Without limiting the generality of the foregoing, Owner agreed that Owner would not and would cause the other Owner Parties (as defined below) not to construct or install any structure or other improvement that was either within five hundred feet (500') of any WTG or was more than thirty feet (30') in height. Further, Owner agreed that Owner would not, and would cause the other Owner Parties not to, take any action that could (a) interfere with or impair the availability, accessibility, flow, frequency or direction of air and wind over and above the Leased Property, (b) in any way interfere with or impair the transmission of electric, electromagnetic or other forms of energy to or from the Leased Property, or (c) interfere with or impair Tenant's access to the Improvements or to the Leased Property for the purposes specified in the Lease, (d) interfere with any permits required for Tenant's use of the Leased Property or (e) otherwise interfere with Tenant's intended use of the Leased Property. Owner also agreed Owner would not take any action or grant any third party any rights in the Leased Property that could materially interfere with the development, construction, installation, maintenance or operation of any wind energy projects on the Leased Property or that could allow any party other than Tenant to exploit the Wind Rights or that could materially and adversely affect Tenant's use of the Leased Property. Finally, Owner agreed that during the term of the Lease, Owner would not grant any rights to any third party to develop, construct, install or maintain or operate any wind energy projects on or around the Lcased Property, including without limitation, construction or upgrading of any Transmission Facilities, without Tenant's prior written consent, which consent shall not be unreasonably withheld. Section 7. Release. Under the Lease, Owner on its own behalf and on behalf of each of Owner's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors, family members and Page 3 of 6 Austin 905479v.1 OHM 2 9- PAGE 147 invitees (collectively, the "Owner Parties") has released and discharged each of Tenant and Tenant's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors and invitees (collectively, the "Tenant Parties') from any losses, liabilities, damages, costs, claims, suits and causes of action (including losses or claims for personal injuries or death and property damage and including reasonable attorneys' fees and costs of litigation) (collectively, "Losses") attributable to (a) interference with wind on any property owned in whole or in part by Owner that is adjacent to the Leased Property; and (b) dangers associated with electrical generating facilities, such as audible and electromagnetic fields, electromagnetic noise, electrical interference, radio frequency interference or cell tower interference (collectively, "Interference and Electrical Generating Facility Dangers"), even if such Losses are caused by or allegedly caused by any Tenant Party's sole, joint or concurrent negligence, strict liability or other legal fault. Section 8. Assignment. Subject to certain restrictions in the Lease, the Lease and the rights of any party to the Lease and the Leased Property, wind energy projects, Transmission Facilities and Improvements may be assigned, encumbered or mortgaged, in whole or in part, without the prior written consent of the non -assigning party but no such assignment,'i encumbrance or mortgage shall operate to enlarge the obligations or diminish the rights of the non -assigning party thereto. Owner and Grantee acknowledge that this Memorandum will continue to be effective with respect to any assignment under the Lease by either party thereto. Section 9. Successors and Assigns. The Lease shall inure to the benefit of, and be binding upon, Owner and Tenant and their respective heirs, transferees, successors and assigns, and all persons claiming under them. Section 10. No Modification of the Lease. This Memorandum does not alter, amend or modify the terms and provisions of the Lease, but is executed solely for the purpose of giving notice of the existence of the Lease and the terms and conditions therein, which Lease is incorporated herein by reference for all purposes to the same extent and with the same effect as if set forth herein in full. Section 11. Governing Law. This Memorandum shall be governed by and construed, interpreted and enforced in accordance with the laws of the state in which the Leased Property is located. Section 12. Counterparts. This Memorandum may be executed by facsimile and in multiple counterparts, no one of which need be executed by all parties hereto, each of which shall constitute an original. Counterparts thus executed shall together constitute one and the same instrument. [Signatures on Following Page] wK 2 9 - pAUE 14 8 Page 4 of 6 Austin 905479v. I IN WITNESS WHEREOF, Owner and Tenant have caused this Memorandum to be executed and delivered by their duly authorized representatives as of the date first set forth above. "Owner" Ronnie Dunn "Tenant" 9 Fremantle Energy, LLC, a Delaware limited liability company I 4twili, Name: Thom H. Houle Title: Presid nt Page 5 of 6 Austin 905479v.1 STATE OF TEXAS § COUNTY OF Cjr/r� § The foregoing instrument was acknowledged before me this _Z_7 day of 2008, by Ronnie Dunn. JUNE MARIE M. GRAY Notary Public, State of Texas *f MAY Commission Expires March 27, 2011 hnnu« t' STATE OF TEXAS § COUNTY OF § (�� vo�' (�. '�� No y Public in and for the State o xas My commission expires: 3��ol//Za/ / The foregoing instrument was acknowledged before me this Z-7 day of brit 2008, by Moo& ,3 H, Hoy b- the of Fremantle Energy, LLC, a Delaware limited liability company. ,,ao`" • •GB`ss JUKE MtARIE _. "= Notary Public, St e of Tex ± as �Ymrnission Expires March 27, 2011 Austin 905479v.1 (/I�" g� , O-.. /M Not Public in and for the State of T M ommission expires: 3_=,27 --Z o rl Page 6 of 6 BOOK 2 9 N PAGE 1 SCHEDULEI Land THE FOLLOWING REAL PROPERTY LOCATED IN THE COUNTY OF GARZA, STATE OF TEXAS: In all 107 acres, more or less, more particularly described in the Garza County tax records and Warranty Deed dated May 17, 1997, recorded in the Garza County records as Book 235, Page 349-350 and as shown in Schedule I- Page 3. Garza County Tax Records: AB 425 SEC 3 PT OF S/SIDE SW/PT BLK 1 D&SE GARZA COUNTY Garza County Deed Records: A tract of land out of Section 3, Block D-18, D & SE RR Co. Survey, Garza County, Texas, and being more particularly described as follows: BEGINNING at a 3/8" iron rod set in the West line of the Southwest Quarter (SW/4) of Section 3 for the Northwest and beginning comer of this tract, whence a found concrete monument at the Northwest corner of the Southwest Quarter (SW/4) bears North 0 degrees 18" East, 1490.3 feet; THENCE South 89 degrees 4T East at 30.0 feet pass a 3/8" iron rod, at 2758,33 feet pass a 3/8" iron rod set in the East line of the Southwest Quarter (SW/4) continuing for a total distance of 3981.94 feet to a 3/8" iron rod set in the West R.O.W. line of the Santa Fe Railroad for the Northeast comer of this tract; THENCE South 10 degrees 03' East along the West R.O.W. line of the Santa Fe Railroad, 582.42 feet to the P.C. of a curve to the left of radius 1532.69 feet; THENCE Southeasterly around the arc of a curve to the left, 695.39 feet to a 1" iron pipe set for the Southeast corner of this tract; THENCE North 89 degrees 4T West along the South line of Section 3, at 1598.2 feet pass a found concrete monument at the Southeast corner of the Southwest Quarter (SW/4) of Section 3, continuing for a total distance of 4356.53 feet to a railroad spike set 1.3 feet South of the centerline of F.M. 211, for the Southwest corner of this tract; and the Southwest corner of Section 3; THENCE North 0 degrees 18' East along the West line of Section 3, a distance of 1150.0 feet to the place of beginning. SAVE AND EXCEPT: A tract of land out of Section 3, Block D-18, D & SE RR Co. Survey, Garza County, Texas, and being more particularly described as follows: BEGINNING at a 3/8' iron rod set in the West line of the Southwest Quarter (SW/4) of Section 3 for the Northwest and beginning comer of this tract, whence a found concrete monument at the Northwest corner of the Southwest Quarter (SW/4) bears North 0 degrees 18" East, 1490.3 feet; THENCE South 89 degrees 42' East for a distance of 208.71 feet to a point in the North line of Section 3 for the Northeast corner of this tract; THENCE South 0 degrees 18' East for a distance of 208.71 feet to a point for the Southeast corner of this tract; BOOK 2 9 8 PAGE 1 5. Schedule I —Page 1 Austin 905479v.I THENCE North 89 degrees 42, West for a distance of 20831 feet to a point in the West line of Section 3 for the Southwest corner of this tract; THENCE North 0 degrees 18' East along the West line of Section 3 for a distance of 208.71 feet to the Place of Beginning. BOOK 2 9 8 PAGE 1 5 Schedule I — Page 2 Austin 905479v. t 16 OS_ 16910- �.,,F . A ti, . _ 6J3YJi�'•7t j i�. -1 1-r - 1NjL FR J. KING. - EL&RR;(4016 io 16 I N, J H GIBSON. J H 1 1262 JOHNSON.SA { ? :may^ 41 •-_�...£_� D&SE,RR09 TyT` 16 ( lk �30 4w 1 �906- IB . J H GIBSON. H ' j '��• J `tyH'ON + - 1 -� - \ F4 n & 00 )-INSO 0)N. S'A y w. +�•; r D&SERR CO •� ba ai '.�y)} c'a.'•- :,;. �� ye x. - onw i _ 7 26 k.is 1 ti u� i t �; rZ: a caPlbN. J T 1 - HA Lj P B 69769�v ' i ' ./� .. -., w eS �� i is !� _ `„f+(.lY -•44' B&M 18S&F8 . • �". ,�f 16�892 I I 2 1 s i'.` -- +°' ..-� J i a _: -E' �: 1250 .�� • • ( , .B6&F jGzn.. _ -I ' � Do DON", LP 12'�'� �,e.. ,1248 .r, I \4 ;4. �•'�3 >- __ s't} 8 -�- t �C•Ck'GO1 - - s ll. P jc—k— J, ti FLtYt4 kki G � i 6 & Tr RR Q J &f 344 ' 169738 I _ _ • '1'! RR CO%... I D&W fYH'CO -18929 �t1093g6 1 4¢ 124g d: t t > :r D&VVJfL CD TT RR - 'CO l`1246 TAII1246 EY g 701 ... ,. r jif ,tom : ¢ 291. _ B l -- YSJ.J,1612 _ 16 40 --'Y 4 t 1 TT RR CO/ I TT R O 18882� `12 �i �i j 1265 I 1266 TALLEY. P,' WfNp3r1 Ht vat, 169739 TT RRC4 . ,1611;_-%' ,w 789852 "169287" o i H5&Wf RR CO. I t _ 1254 TALLEY. PH _ HALL P B " 1 .81 "'" •�. 1 2 r r izr �I�1 �'I LL SCHEDULE `I SCALE: Not To Soale DUNN RONNIE -APPROX 107 ACRES OUT OF FILENAME: DunnRSchedMap.pnp SECTION 3, ABSTRACT 425, D&SE SURVEY DATE-,BY.BY. E N L R t, y GARZA COUNTY, TX APPROVED: BR Austin 905479v.I BOOK �� FILED FOR RECORD day d 2`1 e 20 B�— 0 8t I c `�� O'CIOCk.L—M. JIM PLUMMER COUNTY CLERK, OARZA COUNTY. TEXAS �y c- cSl t u +r . c--Denuty Resolution No. 2010-RO163 CONTRACT FOR PURCHASE OF EASEMENT This Contract For Purchase of Easement (the "Contract") is made on this day of 2010 ("Effective Date"), by and between Cecil Stolle a/k/a Cecil W. Stone and wife Carolyn Laverne Stolle (collectively referred to herein as "Seller") and the City of Lubbock, Texas, a Texas home rule municipal corporation (referred to herein as "Buyer"). RECITALS WHEREAS, Seller owns the Easement Area (as defined in the Easement Agreement (the "Easement Agreement') attached hereto as Exhibit A) and the Temporary Easement Area (as defined in the Easement Agreement) (the Easement Area and the Temporary Easement Area shall be collectively referred to herein as the "Easement Area"); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a permanent and a temporary easement (collectively, the "Easement") over, across and upon the Easement Area and the Temporary Easement Area in accordance with the terms of the Easement Agreement. ARTICLE I SALE OF EASEMENT For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Easement and all rights incident thereto as described in the Easement Agreement attached hereto and incorporated herein for all purposes. ARTICLE 11 PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Easement described herein is AND /100THS Dollars {$ ) (the "Purchase Price") which amount is the sum of the amounts set forth in Paragraph 12 (i), (ii) and (iii) of the Easement Agreement. 2.02 Independent Contract Consideration. Within seven (7) business days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of this Contract. The Independent Contract Consideration is to be credited against the Purchase Price at closing, if Closing (as identified below) occurs. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Within sixty (60) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Buyer and to Seiler and to Seller's legal counsel a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by West Texas Title Company ("Title Company") setting forth its exceptions to title ("Exceptions") and copies of any such Exceptions. 3.02 Survey. Buyer, aL Buyer's sole cost and expense, has previously caused a current on the ground survey for the Property (the "Survey") to be delivered to Buyer. Within fifteen (15) days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Seller a copy of the Survey. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of ten (10) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Obeections"), if any. Buyer acknowledges and agrees that the Easement will be subject to (A) all items disclosed on Exhibit F to the Easement Agreement, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property, (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rights -of -way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date (the foregoing, together with any exceptions to title that are accepted or waived by Buyer in accordance with Section 3.04 shall be referred to herein as the "Permitted Exceptions"). 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies Seller of Objections to any of the matters furnished to Buyer pursuant to Section 3.03, the Seller shall, within ten (10) calendar days after Seller is -provided notice, either to satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. If Seller is unwilling or unable to satisfy the Objections within such ten (10) calendar day period, Buyer or Seller may at its option extend the cure period up to an additional fifteen (15) days or Seller may inform Buyer that Seller is unable or unwilling to cure the Objections. If the Objections remain unsatisfied, and if Buyer and Seller do not agree in writing to an extension of that period, then Buyer has the option of either: 0) waiving the unsatisfied Objections by, and only by, notice in writing to Seller within five (5) calendar days after the expiration of the cure period, in which event those Objections shall become Permitted. Exceptions; or (ii) terminating this Contract by notice in writing and receiving back the Independent Consideration, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract, except as provided in Section 3.06 below. 3.05 Title Policy. At Closing, Buyer, at Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has an easement pursuant to the Easement Agreement over and across the Easement Area, subject only to the Permitted Exceptions and the terms of the Easement. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows: (I) if available based upon the Survey, the survey exception may be amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (ii) no exception will be permitted for "visible and apparent easements" or words to that effect; (iii) no exception will be permitted for "rights of parties in possession" (provided that any inspection fees or expenses required by the Title Company to delete this exception shall be paid by Buyer); (iv) no liens will be shown on Schedule B, unless the holder thereof has subordinated its lien rights to the Easement. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exceptions it deems material, in its sole discretion. 3.06 Other Remedies. Notwithstanding anything contained in this Contract to the contrary, if Buyer determines that the easement intended to be conveyed to Buyer and described herein and in the Easement Agreement, or any part thereof or undivided interest therein, should be acquired by judicial procedure to procure good title, then Buyer and Seller hereby stipulate that (i) an agreement, in the same form as the Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Seller for the easement obtained by Buyer by judicial procedure, shall be the same as the consideration stated in Section 2.01 above and in Paragraph 12 of the Easement Agreement, but should the Seller own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Buyer and described herein, such award shall not exceed that portion of the consideration stated in Paragraph 12 of the Easement Agreement which the value of such lesser interest of Seller bears to the value of the entire Easement Area or Temporary Easement Area described herein. This Section 3.06 shall survive any termination of this Contract. ARTICLE IV COVENANTS AND AGREEMENTS 4.01 Covenants and Agreements of Seller. Seller represents and warrants that to Seller's knowledge and subject to the Permitted Exceptions Seller has good and indefeasible title to the Easement Area and further covenants and agrees with Buyer as follows: (a) Seller represents that to the best of its knowledge Exhibit F to the Easement Agreement, when prepared and delivered by Seller, will set forth a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject property, and (iii) all unrecorded easements granted by Grantor which encumber the subject property. Seller will provide to Buyer within thirty (30) days after Seller's receipt of a copy of the Title Commitment, copies of all documents to be described in the Easement Agreement on Exhibit F that are not reflected in the Title Commitment. Buyer shall have ten (10) days after receipt of such documents to object to any matters set forth therein that - are not contained in the Title Commitment. Thereafter, Buyer and Seller shall have the same objection and cure rights with respect to such objections as are set forth in Section 3.04. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall not sell, assign, or convey any right, title or interest whatsoever in or to the Easement Area, or create any lien, encumbrance, or charge thereon. ARTICLE V CLOSING 5.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company. The Closing Date (herein sometimes called), shall be on the earlier to occur of (i) the date that is ninety (90) days after the Effective Date; or (ii) such earlier date as mutually agreed on by Seller and Buyer. However, the closing date as identified herein may be extended by either party for a period of thirty (30) days in order to comply with the time limits contained in Article III and Article IV. 6.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to the Title Company the following items: (i) An Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Seller and acknowledged; and (b) BuMr. At the Closing, Buyer shall deliver the Title Company, or obtain for itself, the following items: (i) The sum required by Section 2.01 in the form of immediately available Federal funds to be paid immediately to Seller; (ii) The Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Buyer and acknowledged; and (iii) The Title Policy in the form specified in Section 3.05; Both Buyer and Seller shall deliver other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 6.01 6.02 ARTICLE VI DEFAULTS AND REMEDIES Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Seller fails to meet, comply with or perform any covenant, agreement, or obligation on Seller's part required within the time limits and in the manner required in this Contract, or (ii) Seller fails to deliver at Closing, the items specified in Section 5.02(a) of this Contract for any reason other than a default by Buyer under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If 6.01(a) occurs, Independent Consideration as Buyer's performance. Buyer's Default, Seller's Remedies. Buyer may: (i) terminate the Contract and receive the sole and exclusive remedy, or (ii) enforce specific (a) Buyer's Default. Buyer is in default under this Contract on the occurrence of any one or more of the following events: (i) Buyer fails to meet, comply with or perform any covenant, agreement, or obligation on Buyer's part required within the time limits and in the manner required in this Contract, or (ii) Buyer fails to deliver at Closing, the items specified in Section 5.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedies. If 6.02(a) occurs, Seller may: (i) terminate the Contract and retain the Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific performance. ARTICLE VII MISCELLANEOUS 7.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Cecil Stolle and wife, Carolyn Laverne Stolle 815 S 2e Street Slaton, TX 79364 Copies to: For Seller: John C. Cox, Esq. K&L Gates, LLP 1717 Main, Suite 2800 Dallas, Texas 75201 Telecopy: (214) 939-5849 BUYER: Attn: Dave Booher City of Lubbock 1625 13th Street Lubbock, Texas 79401 Telecopy: (806)775-3074 For Buyer: Attn: Marsha Reed City of Lubbock 1625 13th Street Lubbock, Texas 79401 Telecopy: (806)775-2051 The parties may change their address effective in the same manner as other notices provided hereunder. 7.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN THE COUNTY WHERE THE PROPERTY IS LOCATED. 7.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Easement, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 7.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 7.05 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. 7.06 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 7.07 Agreement in Lieu of Condemnation. This Contract and the Easement Agreement are entered into by Buyer and Seller as a settlement and compromise lieu of condemnation and the consideration set forth herein and the covenants acid agreements of the Buyer set forth in the Easement Agreement are given to Seller in compensation for the acquisition of the Easement in accordance with the Easement Agreement. This Section 7.07 shall survive Closing and the execution and delivery of the Easement Agreement. 7.08 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City Council of the City of Lubbock to the Deputy City Manager of Buyer, or his designee. When the context requires, singular nouns and pronouns include the plural. The undersigned represent and warrant their respective authority to execute this contract, and to convey the interest in property described herein. Executed by Seller on the day of 2010. Executed by Buyer on the day of SELLER: Cecil Stolle a/k/a Cecil W. Stolle Laverne S Carolyn Laverne Stolle 2010. BUYER: rel TOM MARTIN, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Ryan J. Bigbee, Attorney for the City of Lubbock Exhibit A to Contract of Sale EASEMENT AGREEMENT SEE ATTACHED EASEMENT AGREEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF § Subject to the terms and conditions set forth in this Easement Agreement (this "Ageement'), Cecil Stolle a/k/a Cecil W. Stolle and wife Carolyn Laverne Stolle ("Grantor') whose address is 815 S 201h Street, Slaton, Lubbock County, TX 79364 for and in consideration of the covenants contained herein and other good and valuable consideration to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 13'h Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, hereby grants unto Grantee an easement (the "Easement') subject to the terms of this Agreement through, over, under, upon, across and within the sixty foot (60') wide area described by metes and bounds on Exhibit A (the "Easement Area") situated in Garza County, Texas: The Easement shall be for the survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of (i) a single underground pipeline located within the Easement Area for the transportation of fresh water (the "Pipeline"), and (ii) the following equipment and appurtenances related to the Pipeline and situated within the Easement Area: conduits, drain (blow -off) valves, valve boxes, meter boxes, vents (air valves), manholes, manhole covers (with post around manholes), corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep well anode stations with power supplies, flow meters, system communication lines (including, but not limited to, fiber optic lines), splice boxes, and corrosion control equipment, corrosion monitoring equipment and other equipment and facilities related thereto (collectively, the "Pipeline Equipment')(the Pipeline together with the Pipeline Equipment shall be collectively referred to herein as the "Pipeline System"). Further, Grantor hereby grants unto Grantee a temporary construction easement (the "Temporary Easement") for the construction and installation of the Pipeline System over an area sixty feet (60') in width located adjacent to, and abutting, the Easement Area (the "Temporary Easement Are on the northeast side of the Easement Area as more specifically described on Exhibit A. The Temporary Easement shall terminate and expire upon the earlier of (i) completion of all construction activities related to that portion of the Pipeline System situated within the Easement Area, or (ii) June 30, 2014 (the "Anticipated Pipeline Completion Date"). In the event that the Pipeline System within the Easement Area has not been completed by the Anticipated Pipeline Completion Date, Grantee shall have the option to extend the term of the Temporary Easement for up to two consecutive periods of two (2) years each with the first extension to commence on the Anticipated Pipeline Completion Date and the second extension to commence on the second anniversary of the Anticipated Pipeline Completion Date; provided, however, that the Temporary Easement shall in any event terminate and expire upon the completion of the Pipeline System within the Easement Area and thereafter be of no further force and effect.. In order to exercise its right to extend the Temporary Easement as aforesaid, not later than thirty (30) days prior to the Anticipated Pipeline Completion Date (or the second anniversary of such date if the Temporary Easement has already been extended) Grantee shall deliver to Grantor written notice that it intends to extend the Temporary Easement and pay to Grantor of the sum of $ f * * 10% of the amount in paragraph 126below**] for each requested two (2) year extension. Upon request of Grantor, after completion of that portion of the Pipeline System situated within the Easement Area, or the termination and expiration of the Temporary Easement, Grantee shall execute and deliver to Grantor a release of the Temporary Easement in a form acceptable for filing. The Easement and Temporary Easement are specifically made by Grantor and accepted by Grantee subject to the following terms, covenants, obligations and conditions: I. Permitted Uses. Grantee may use and occupy (a) the Easement Area for the sole purpose of: (i) survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline and Pipeline Equipment; (ii) the construction, installation, maintenance and repair of a pipeline trail road within non -cultivated areas of the Easement Area, and (iii) ingress, egress and regress for people, material, and equipment along, over and across the Easement Area to accomplish the purposes stated in paragraph I(a)(i) provided that after completion of construction of the Pipeline System situated within the Easement Area, and except in cases of emergency or repair,- on cultivated land ingress, egress and regress shall be permitted in, but limited to, the use of then -existing turn rows, and (b) the Temporary Easement Area (during the term thereof) for the sole purpose of (i) survey, construction and installation of the Pipeline and Pipeline Equipment; (ii) ingress, egress and regress for people, material, and equipment along, over and across the Temporary Easement Area to accomplish the foregoing, and (c) during the term of the Temporary Easement, the Easement Area and the Temporary Easement Area may be used for the temporary storage of materials and equipment (including pipe for the Pipeline and Pipeline Equipment) (collectively, the "Permitted Uses"). Grantee shall use the Easement Area and the Temporary Easement Area (for the term thereof) for the Permitted Uses, and activities reasonably related thereto, and for no other purposes or uses. 2. Legal Requirements; No Interference. Grantee covenants and agrees that its use of the Easement Area and Temporary Easement Area, and its operations conducted thereon, shall at all times comply with this Agreement and all material applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all material environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and the safety guidelines shown on Exhibit B attached hereto and made a part hereof. Further, Grantor and Grantee shall each conduct their activities in such a manner as to not unreasonably interfere with, or cause disruption to, the other's business, operations and property or those of a third party entering or crossing the easement. 3. Due Care. Grantee covenants and agrees to construct the Pipeline System, and to perform its obligations under this Agreement, in a prudent manner and with due professional care for Grantor's property, business and operations, and according to standard industry practices. 4. Construction Specifications. Grantee covenants and agrees to construct, maintain, repair and replace the Pipeline System in the Easement Area in accordance with the following: (a) Minimum Pipeline Degth. The Pipeline System shall be so located or shall be buried at a sufficient depth so it will not interfere with farming activities currently in practice and cultivation of the soil at the soil levels as they exist at time of execution of this Easement and, in any event, the Pipeline shall be buried at such depth as will allow a minimum coverage of forty-eight inches (48") for current ranchland and a minimum coverage of sixty inches (60") for current farmland. Any Pipeline Equipment that will be installed above plow depth on cultivated lands shall only be installed at the locations identified on Exhibit C or, if no locations are specified on Exhibit C, at such other locations that will not interfere with farming activities and which are approved in writing by Grantor, such approval not to be unreasonably withheld. (b) Ditching. Unless determined by an outside engineer to be impractical due to the existence of rock or material elevation change, all ditching shall be in accordance with the "double ditch" method whereby the top eighteen inches (18") of soil (the "Top Soil") shall be removed from the Pipeline trench (the "Trench") and stored in a pile that is segregated from all other material and debris, and the remaining soil (the "Bottom Soil") shall be removed from the Trench and stored in a pile that is segregated from the Top Soil. When the Trench is refilled after the Pipeline has been laid and the Pipeline Equipment installed, the Bottom Soil shall be placed in the trench first leaving room to fill the uppermost eighteen inches (18") of the Trench to be filled with Top Soil. Top Soil shall be used to fill the remainder of the Trench. Any Bottom Soil remaining after filling the Trench shall (i) on cultivated lands, be removed from the Easement Area and disposed of off of the property of Grantor, and (ii) on uncultivated lands, shall be spread over the Easement Area and Temporary Easement Area in a manner acceptable to Grantor and that will not restrict or limit the re -growth of natural vegetation. Rocks or other debris arising in connection with clearing the Easement Area and ditching the Trench for the Pipeline System shall be removed as set forth in Paragraph 4 (h) below. As stated above, single ditching shall be allowed in all areas where "double ditching" is impractical (as determined by an outside engineer) due to the existence of rock or material elevation change. (c) Trench Leveling. Within uncultivated areas, upon completion of construction of the Pipeline System, excess material may be mounded over the Trench and covered with Top Soil; provided that the mound will be limited to a maximum of one foot (1') in height and will be graded to allow natural drainage. Within cultivated areas, upon completion of construction of the Pipeline System, the Easement area shall be leveled to grade (or as otherwise agreed to by Grantor in writing). in all instances the Easement Area and Temporary Easement Area shall be cleaned up in a professional manner. (d) Maximum Open Segments. The construction, installation, maintenance and repair of the Pipeline System shall be performed in segments so that there is never more than one thousand feet (1000') of open Trench at any one time and no open segment shall be open for more than seven (7) days; provided, however, that excavations for pipeline appurtenances and tunnel/bore crossings may remain open for up to thirty (30) days. (e) Compaction. Grantee shall mechanically compact all fill material to prevent any subsidence. To the extent there exists or hereafter arises any subsidence or erosion arising in connection with the construction, installation, maintenance or repair of the Pipeline System, Grantee shall refill with top soil, re - compact and re -grade all affected areas and take any further action reasonably required to return the surface to a substantially similar, or better, condition than adjacent undisturbed areas and prevent future subsidence or erosion. In furtherance of the foregoing, Grantee shall inspect the Pipeline at an interval of (i) six months, (ii) twelve months, and (iii) eighteen months after initial Pipeline System construction, and promptly refill and re -compact any subsidence or erosion existing at such times in order to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and take any further action reasonably required to prevent future subsidence or erosion. The inspections periods set forth above are not intended to be a limitation on Grantee's ongoing duty to fill, compact and maintain the grade of the land around the Pipeline. Accordingly, in the event that Grantor at any time discovers any subsidence or erosion after the installation of the Pipeline (whether before or after expiration of the inspection periods provided for above), Grantor may provide notice of such subsidence or erosion to Grantee. Within thirty (30) days' after Grantee's receipt of such notice, Grantee shall commence and thereafter diligently and without unreasonable delay refill with top soil, re -compact and re -grade all affected areas and take any additional action as may be reasonably required to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and to prevent future subsidence or erosion. (f) Disc Plowing. If requested by Grantor, after completion of construction of the Pipeline the top 6 to 12 inches of the Easement Area and Temporary Easement Area through cultivated fields shall be disc plowed to loosen up soil for farming operations. (g) Gates. Grantee shall install gates at each existing fence to be crossed within the Easement Area and the Temporary Easement Area in order to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, Grantee will set H-braces on the outside boundaries of the Temporary Easement and Easement Area (e.g. 120 feet apart) then tie -off and cut the fence adjacent to each H-brace. The Grantee shall then set temporary T-posts and string barbed wire along the 120 foot opening and install a temporary barbed wire gate or gates, as needed. At the time of construction through the affected area, the Grantee will remove the temporary T-posts so as to permit construction activities. At night, Grantee will 'install temporary fencing. Upon completion of the subject Pipeline section, Grantee will install interior H-braces and a permanent 14 foot gate(s). Grantee will then install permanent T-posts and barbed wire to connect the H- braces. Fences, gates, gate posts and corners installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made apart hereof and shall be installed with professional care and according to standard 'industry practices. All gates installed by Grantee shall be made of painted steel pipe. Except during construction as described above, all fence gates on the exterior of Grantor's property shall be closed and locked at all times, unless Grantor in its sole discretion consents to temporary cattle guards or other arrangements. All gates on the interior of Grantor's property shall be left as found. All cattle guards on the exterior of Grantor's property shall be closed and locked at night unless otherwise requested by Grantor. After construction, Grantee shall put a lock on all gates and Grantor may install its own lock on such gates; provided, however, that at all times Grantor and Grantee shall have full and complete access to the Easement Area. (h) Debris Removal. Grantee covenants and agrees that at Grantee's sole cost and expense any and all debris materials of any kind arising in connection with the construction, installation, operation, inspection maintenance, replacement, repair and removal of the Pipeline System, including trash, trees, timber, wood, bushes, shrubs and brush, and other debris materials (collectively, "debris"), shall be removed by Grantee from Grantor's property and disposed of properly so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Further, all rocks and rubble arising in connection with the construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline System will be removed from Grantor's property so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Notwithstanding the foregoing, Grantee and Grantor by mutual agreement may determine that (i) Grantee may shred or mulch trees, timber, wood, bushes, shrubs and brush and scatter such debris over Grantor's property, (ii) Grantee may burn trees, timber, wood, bushes, shrubs and brush, (iii) Grantee may store or scatter rocks and rubble at locations designated by Grantor, or (iv) any other reasonable method to dispose of trees, timber, wood, bushes, shrubs, brush, rocks and rubble. If any trees, timber, wood, bushes, shrubs and brush are burned on site, the Grantee 'shall maintain constant watch over burn piles with adequate firefighting equipment on site. Grantee further agrees that neither Grantee nor its employees, contractors, agents nor representatives will bum any trees, timber, wood, bushes, shrubs or brush cleared from the Easement Area or the Temporary Easement Area during burn bans designated by county officials. (i) Temporary Crossings. During construction of the Pipeline System, crossovers shall be installed by the Grantee over the Trench to provide access for Grantor (and Grantor's personnel, equipment and livestock) over the Trench to and from Grantor's adjacent property (i) over all existing paved or unpaved roads, (ii) for livestock (at no less than 500 foot intervals), and (iii) at such other locations as are reasonably designated by Grantor. Further, Grantee may, at Grantee's option, construct temporary fencing near any open hole or trench. 0) Reseeding. If any of the Easement Area or Temporary Easement Area consists of grassland, Grantee shall, using the recommended procedure (either via drill or broadcast), plant a native (e.g. native to the local area) seed mix of grass and forbs selected by Grantor but subject to reasonable availability. (k) Existing Terraces; Damage to Adjacent Property. (i) Terraces. Existing terraces in the Easement Area and Temporary Easement Area will be replaced upon the backfill of the trench excavated in connection with the construction of the Pipeline System. In the event that the breach of any existing terrace results in any damage to Grantor's adjacent property or the breach of any down grade terraces (whether or not within the Easement Area or the Temporary Easement Area), Grantee shall repair any such damage and return the surface of affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (ii) Damage to Adjacent Property. In the event that the activities of Grantee (or any of its agents, employees, contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles) within the Easement Area or Temporary Easement Area result in any damage or erosion to Grantor's property located outside of the Easement Area or Temporary Easement Area, Grantee shall repair any such damage or erosion and return the surface of the affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (1) Diversions: Terraces: Stream Beds. Grantee shall install water diversions and terraces where necessary or appropriate in order to divert water away from excavated areas, to prevent erosion and to permit the natural flow of water that existed prior to construction of the Pipeline. Further, where the Easement Area crosses any wet or seasonal stream beds, all Permitted Uses shall be conducted in a recognized manner to protect said stream beds and to prevent erosion (m) Blastin . Prior to blasting within the Easement Area, Grantee will notify Grantor. However, no blasting will be permitted within five hundred feet (500') of any existing buildings, pipelines or wells; provided, however, that Grantor shall provide written disclosure of the location of any such improvements that are located underground before such blasting. (n) Trail Road. The pipeline trail road shall not exceed twelve feet (12') in width. The trail road shall be constructed, repaired and maintained in a manner consistent with Grantee's needs and purposes; provided, however, such trail road shall include culverts and water diversions where appropriate to prevent washouts and erosion. Grantee shall level or fill all ruts and washouts and otherwise maintain the trail road on a reasonable basis. Grantor shall have use of such road within Grantor's property so long as Grantor's use does not unreasonably interfere with Grantee's use of the Easement Area and Temporary Easement Area. After completion of the construction of the Pipeline System and except in cases of emergencies, in order to avoid ruts and washouts, Grantee and Grantor shall use reasonable efforts to avoid the use of the trail road when wet. (o) Necessary TempgM Use. Grantee shall have the right to use Grantor's property located immediately adjacent to the Easement Area and Temporary Easement Area for the following: (i) On rangeland, detouring around natural impassable impediments within the Easement Area or Temporary Easement Area such as canyons, large boulders or large trees; or (ii) the repair and removal of equipment or vehicles stranded within the Easement Area or Temporary Easement Area, but only to the extent is there not sufficient area within the Easement Area and Temporary Easement Area to permit such repair and removal. Except as provided in this Paragraph 4(o), Grantee (and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them) shall not at any time go upon the property of Grantor outside of the Easement Area and Temporary Easement Area. To the extent that any such incursion upon the lands of Grantor adjacent to the Easement Area and Temporary Easement Area results in any damage to such lands, Grantee shall be liable for such damage and in any event covenants and agrees that the affected areas shall be returned to the condition that is substantially similar to, or better than, adjacent undisturbed areas. (p) Staking of Easement. Prior to commencement of construction of the Pipeline System, Grantee shall stake the exterior boundaries of each side of the combined Easement Area and Temporary Easement Area (e.g. the parallel lines, 120 feet apart, that mark the outside boundaries of the combined 60 foot Easement Area and 60 foot Temporary Easement Area). Such boundary shall be staked with clearly visible, above ground markers so that all parties can easily view the boundary of the easements. Such markers shall be maintained until completion of construction of the Pipeline System. (q) Tree Grubbing. Upon commencement of work on the construction of the Pipeline System (and prior to trenching), Grantee shall grub (using an excavator modified to grub mesquite) all mesquite within the Easement Area and shall also grub any mesquite that has been destroyed, damaged, bladed, or cut within the Temporary Easement Area. At its option Grantee may grub the entire Temporary Easement Area. All debris arising as a result of grubbing activities will be disposed of in accordance with Paragraph 4(h) above. Grantor acknowledges that Grantee is not liable for any re -growth of vegetation after any tree grubbing identified in this Paragraph 4 W or after any double ditching as identified in Paragraph 4 (b) and that re -growth of vegetation will occur over time. 5. Cure Period. In the event that Grantee is in violation of any of the terms of this Agreement, Grantor shall give written notice of, and an opportunity to cure such violation to Grantee. Grantee covenants and agrees within thirty (30) days of receipt of such notice to commence to cure, and thereafter diligently and without unreasonable delay pursue to cure, such violation; provided, however, that the cure of any subsidence or erosion will be completed within one hundred and twenty (120) days after receipt of such notice to commence to cure. 6. Record Drawings To Be Provided to Grantor. Upon completion of the construction of the Pipeline System, Grantee shall, at Grantee's sole cost, provide to Grantor record drawings showing the location within the Easement Area of the Pipeline and each item of Pipeline Equipment. 7. Abandonment of Easement. Grantee may abandon the Pipeline System solely by an ordinance adopted by the City Council of The City of Lubbock, Texas (or any successor governing body of The City of Lubbock Texas) that authorizes the abandonment of the Pipeline System. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Easement Area is located. If Grantee should abandon the Pipeline System as aforesaid, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns, and title to the Pipeline System located within the Easement Area shall revert to Grantor, its successors and assigns and Grantor may, at its option, remove, dispose of and/or sell any pipe or Pipeline Equipment within the Easement Area. 8. Easement Term. The "Easement Term" is hereby defined as the period of time beginning with the Effective Date (hereinafter defined) and continuing until such time that the Pipeline System is abandoned by Grantee as provided in Paragraph 7 above. 9. Covenant to Maintain Pipeline. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, exercise due care and diligence in the use of the rights and privileges herein granted and keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall ke,:.p the Easement Area in good order, condition and repair and free of all debris following any work related to Permitted Uses on the Pipeline System. 10. Permits. Grantee shall be responsible for obtaining all permits necessary for Permitted Uses within the Easement Area and the Temporary Easement Area. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality relating to the Pipeline System and this Agreement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 11. Additional Uses. Subject to the limitations set forth in this paragraph, the Easement is non-exclusive and Grantor shall at all times have the right to (i) use and enjoy the Easement Area for any purpose not specifically prohibited herein; (ii) grant easements and rights of way over, under, upon, across and within the Easement Area to such persons as Grantor deems proper; (iii) construct and maintain improvements upon the Easement Area; and (iv) construct and maintain irrigation systems (including drip and overheard irrigation systems) and components and water distribution lines to cultivate and service Grantor's property (including the Easement Area), provided, however, (A) no buildings- or reservoirs may be constructed upon the Easement Area, (B) improvements (other than drip irrigation lines and overhead irrigation equipment) may not parallel the Pipeline within the Easement Area, (C) all power lines, pipelines (other than drip irrigation lines and overhead irrigation systems), and telephone and other telecommunication lines must cross the Easement Area at no less than a 45' (forty-five degree) angle, (D) underground power lines and any metallic pipelines (excluding irrigation water lines and water distribution lines used to service Grantor's property) must have a minimum separation of two feet (2') from the Pipeline and must meet industry standards in order not to adversely affect or damage the Pipeline, and (E) fences constructed by Grantor within the Easement Area must have gates installed so that Grantee at all times has access over and across the Easement Area. In the event that Grantor determines to construct (or grant the right to any third party to construct) improvements within the Easement Area that are not addressed above, Grantor shall provide not less than thirty (30) days prior written notice to Grantee during which time Grantee may have the proposed improvements analyzed by its outside engineers. If during such thirty (30) day period Grantee provides to Grantor a detailed analysis of why the proposed improvements will adversely affect the Pipeline or Pipeline System, Grantor shall not construct such improvements until such time as Grantor and Grantee's engineers agree upon a methodology for the construction of such improvements that will not adversely affect the Pipeline, such agreement not to be unreasonably withheld by either Grantor or Grantee. Grantee and Grantor will at all times use their good faith efforts to accommodate the needs and activities of one another. Grantee covenants and agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not unreasonably interfere with or endanger the operations or integrity of the Pipeline System. Grantee acknowledges and agrees that if the Easement Area is subject to one or more oil and gas leases in existence as of the Effective Date of this Easement, or if Grantor does not own the minerals under the Easement Area, Grantor does not have control over and is not responsible for, or liable for, compliance (or non-compliance) with this Paragraph 11 by any oil and gas lessee or mineral owner(s). 12. Compensation for Grant of Easement. As complete consideration for the execution and delivery of this Agreement by Grantor, contemporaneously with the execution hereof by Grantor the Grantee agrees to pay to Grantor (i) the sum of Eighty - Five Dollars ($85.00) per rod for a total of SIXTEEN THOUSAND TWO HUNDRED FIFTY-THREE AND 70/100THS Dollars ($1 b,253.70) for the grant of the Easement and the grant of the Temporary Easement, (ii) the sum of ($ �} for damage to, or the replacement of, machinery and equipment (including irrigation systems and equipment) and other personal property specified on Exhibit E, and (iii) the sum of for damage to crops. In the event that as a result of the time of year in which construction of the Pipeline will occur Grantor (or its lessee) will suffer crop losses for two consecutive years, prior to commencement of construction (or, if construction has already commenced, but was delayed or extended, prior to continuation of construction) Grantee shall pay to Grantor an additional sum for crop losses in the amount specified in item (iii) above. The foregoing consideration constitutes payment to Grantor and Grantor's successors, assigns, or agricultural lessees or tenants, if any, for the grant of the Easement and Temporary Easement and for damage to the specified equipment, machinery and crops resulting from the initial construction and installation of the Pipeline System. The market value of any damaged crop shall be calculated using the following formula: Affected Acres X Yield Per Acre X Unit Price for the affected crop = damages to be paid, where (i) the amount of the affected acreage will be reasonably determined by the Federal }arm Service Agency in the county where the premises is located, or if the Federal Farm Service Agency fails or refuses to make such calculation, as reasonably determined by Grantor, (ii) yield per acre will be the average of the previous three (3) years' yields according to the Grantor's (or Grantor's lessee's) records for the affected parcel, but if the Grantor (or Grantor's lessee) does not have yield records available, the parties will use Federal Farm Service Agency records or other commonly used yield information available for the area, and (iii) unit price will be based upon the average of the last previous March Vt and September I" prices for the affected crop as set by the Chicago Board of Trade, New York Cotton Exchange, Kansas City Board of Trade, or other similar exchange, as appropriate for the affected crop. Notwithstanding the foregoing, the Parties hereto agree that the unit price for damages to cotton crops shall be $0.52 per pound. 13. Title. (a) Grantee acknowledges that at its sole cost and expense it has researched the title to the Easement Area and the Temporary Easement Area and, where it deemed it necessary, obtained abstracts or certificates of title or title insurance to such property. Grantor represents that to the best of its knowledge set forth on Exhibit F is a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii), all unrecorded mortgages or deeds of trust which encumber the subject property, acid (iii) all unrecorded easements granted by Grantor which encumber the subject property. Grantor will provide Grantee, at least thirty (30) days prior to the execution of this Agreement, with all documents identified and to be attached hereto as Exhibit F. The grant of the Easement herein contained is subject to (A) all items disclosed on Exhibit F, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property (which Grantor understands that Grantee has received and reviewed), (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rights -of -way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date. It shall be the obligation of Grantee to procure and have recorded without cost to Grantor all assurances of title and affidavits which Grantee determines are necessary and proper to show in Grantor title sufficient to grant this Easement. The expense of *ecording this Agreement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, at no expense to Grantor, to obtain any curative documents needed to the extent such cure would not affect Grantor's title. (b) If Grantee or Grantor determines that the easement intended to be conveyed to Grantee and described herein, or any part thereof or undivided interest therein, should be acquired by judicial procedure, either to procure good title or for any other reason, then'Grantor and Grantee hereby stipulate that (i) an agreement, in the same form as this Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Grantor for the easement obtained by Grantee by judicial procedure, shall be the same as the consideration stated in Paragraph 12, but should the Grantor own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Grantee and described herein, such award shall not exceed that portion of the consideration stated in Para rah 12 which the value of such lesser interest of Grantee bears to the value of the entire Easement Area or Temporary Easement Area described herein. 14. Recreation,• Firearms,• Huntiniz, Fishing; Dogs, Artifacts. At no time shall Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them (i) enter upon the Easement Area or Temporary Easement Area for sightseeing 6r other recreational purposes, all access being limited to Permitted Uses, (d) kill or remove from the Easement Area any plants (other than in connection with Permitted Uses) or any reptiles, fish, birds or animals or any artifacts (including arrowheads) or other archeological items of any kind, (iii) bring upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor) any firearm (whether rifle, pistol, shotgun), bow of any type, arrow, trap, snare, net, fishing rod, or any other means whatsoever of taking wild game, fish or fowl, (iv) hunt, fish or trap upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), (v) bring dogs upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), or (vi) subject to the provisions of Paragraph 4(o) above, enter upon any part of the land of Grantor outside of the Easement Area or the Temporary Easement Area, or (vii) take any photographs in the Easement Area except in connection with Permitted Uses and for no other purposes, it being understood and agreed that all commercial photography and the sale of any photographs taken from the Easement AI -ea or surrounding lands of Grantor are expressly prohibited. Any person in violation of the foregoing shall be a trespasser and Grantee covenants and agrees not to interfere with the prosecution of any person accused of the foregoing and to prohibit any such person from thereafter going upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). Grantee consents and agrees that Grantor shall have the right at any time to inspect the interior of any vehicle brought upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). The Grantee shall include a covenant similar to the above in all contracts with any contractors having access to the Easement Area or the Temporary Easement Area. 15. Gender, Plural. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the pluxal, and vice versa, unless the context requires otherwise. 16. IndepIWty. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor and Grantor's family, officers, agents, servants, employees, representatives, contractors, independent contractors, and subcontractors (each, an "Indemnitee") harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs; collectively, the "Covered Losses"), that may be suffered.. 'or incurred by an Indemnitee, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement Area or the Temporary Easement Area after the Effective Date to the extent arising in whole or in part out of or in connection with any negligence or willful misconduct of Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles. When any losses, claims, demands, or causes of action of the types described above are the result of joint or concurrent negligence or willful misconduct of Grantee and Grantor or their respective employees, contractors or agents, it is understood and agreed that Grantee's indemnity obligations shall be effective and shall cover all such losses, claims, demands, or causes of action notwithstanding any negligence on the part of Grantor or Grantor's, employees, contractors (including independent contractors and subcontractors), agents or invitees. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the Easement and/or any rights granted hereunder, and Grantor shall be solely limited to the remedy of money damages for such claims. 17. Indemnit�RegaardingLPollution. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold each Indemnitee harmless from and against all Covered Losses of whatsoever nature arising from pollution or contamination emanating "from the Pipeline System (the "Grantee pollution liabilities"); provided, however, that "Grantee pollution liabilities" shall exclude any pollution liabilities arising from any condition existing before the effective date of this Agreement. Grantor hereby releases Grantee from and against all Covered Losses of whatsoever nature arising from (i) pollution emanating from the property and equipment of Grantor, (ii) any condition existing before the Effective Date, (iii) pollution or contamination migrating or having migrated on, under, or to the Easement Area from any other location, and (v) the possession, occupation or use by Grantor (or any third party under rights granted by Grantor) of Grantor's property. 18. Insurance. During the construction and installation of the Pipeline System, Grantee shall maintain, or cause its primary contractor to maintain, comprehensive generally liability insurance in the amount of $1,000,000 and umbrella liability insurance in the amount of $2,000,000, covering "all risks" associated with the Permitted Uses of the Pipeline during construction and installation of the Pipeline System. Upon request Grantee shall provide a copy of such policies, and all renewals and replacements thereof, to Grantor. 19. Easement Only. It is understood and agreed that this Agreement is not a conveyance of the fee estate for any of the Easement Area, but is only an easement through, over, under, upon, across and within the Easement Area and the Temporary Easement Area (for the term thereof). 20. Binding .Agreement; Assignment. The provisions of this Agreement shall be binding upon and inure to the benefit of Grantor and Grantee and their respective successors, heirs and assigns; provided, however, Grantee shall not assign this Easement without the prior written consent of Grantor which consent shall not be unreasonably withheld. 21. Final Agreement. This Easement and the Exhibits attached hereto contain the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. Each Exhibit attached hereto shall be a part of, and incorporrted into, this Agreement. 22. • Unenforceable Provisions. 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 unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 23. Notices. Any notices or demands provided to be given herein by the parties shall be in vaing and sent by facsimile or email (if a facsimile or email address is provided below) or mailed by certified mail or hand delivered to the other party at the address set forth below. In addition, telephone notices described in Paragraph 26 below shall be permitted to the telephone numbers set forth below. Notice of any breach of this Agreement must be in writing and mailed by certified mail or hand delivered to the other party at the address set forth below. Each party may rely on the addresses and contact information set forth below until changed in accordance with this Agreement. If Grantee determines that Grantor has conveyed the subject property without providing contact information for the new owner, Grantee may rely on the records of the local appraisal district. Either parry may change its contact information for notices to it by written notice to the other party. Any notice or demand shall be deemed to have been received the earlier of (i) three (3) days after the date of mailing, (ii) the date of actual delivery as shown by the addressee's certification or registry receipt. or (iii) the date of hand delivery. Grantee shall provide and maintain a person for emergency contact who is available at the below telephone (or such different phone number as set forth in notice from Grantee to Grantor). Grantee: The City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Facsimile: (806)775-2051 Email: MReed@mail.ci.lubbock.tx.us Contact Person: Marsha Reed Emergency contact: Emergency phone number: Grantor: Cecil Stolle a/k/a Cecil W. Stolle and wife Carolyn Laverne Stolle 815 S 20th Street Slaton, TX 79364 Facsimile: (___) Email: Contact Person: Phone number: C__D Cell number: C__) 24. Access Notice. Telephonic notices are acceptable for notice of emergencies and for inspections of the Easement Area, however, with regard to notices of inspection if the contact person cannot be reached by telephone, written notice must be provided. Except in the event of emergencies, after completion of construction of the Pipeline the Graiitee shall provide at least 24 hour prior telephonic notice to Grantor prior to accessing the Easement Area. Voice mail messages shall not constitute notice hereunder. 25. Notice to Future Users. Grantor and Grantee agree and hereby give notice to any oil, gas, mineral, water, wind or energy lessee or grantee acquiring (after the Effective Date) any interest overlying or underlying the Easement Area, that Grantee will be operating the Pipeline System and conducting Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted in the vicinity of the Easement Area which would unreasonably interfere with the operations or integrity of the Pipeline System. Further, to the extent Grantor owns the oil, gas and other minerals under the Easement Area, Grantor hereby waives the right to use the surface of the Easement Area for the drilling of any oil or gas wells subject, however, to the rights of any lessee under any oil, gas and other mineral lease in existence as of the Effective Date. 26. Mineral Water Reservation. Grantor reserves and excepts from this Easement and retains for Grantor and Grantor's successors and/or assigns, all rights to explore for, to drill and produce wind, water, oil, gas and other minerals of every kind and description underlying or situated beneath the Easement Area by any means whatsoever, including wells or mines directionally drilled from surface locations on nearby lands so long as no surface operations are performed on the Easement Area and so long as such operations do not interfere with or endanger the operations or integrity of the Pipeline System. 27; References to Grantee. Where appropriate in this Agreement, references to Grantee in connection with the performance of Permitted Uses shall include Grantee and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 28. Limitation on Damages. Neither party shall be liable to the other party or any of such parry's affiliates in any action or claim including without limitation, any action or claim for indemnity, for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 29. Force Majeure. When a time period is specified herein for the performance by either party of its obligations hereunder (except for the payment of money), such period shall be extended by the period that such parry's performance is prevented by reason of windstorm, hurricane, tornado, flood, earthquake or other acts of God or by war, riot, insurrection or workers' strike or by the unavailability of materials (each, an act of "Force Majeure"), however, in order for either party to take advantage of the extension provided above for an act of Force Majeure, such party must give written notice to the other party within five (5) days of the commencement thereof and must immediately commence performance of its obligations when the effect of the Force Majeure event has subsided. TO HAVE AND TO HOLD said Easement, together with all and singular, the rights and appurtenances thereto in anywise belonging unto Grantee, its successors and assigns during the Easement Term, subject to the terms and conditions hereof. The effective date of this Agreement (the "Effective Date") shall be the date this Agreement is last signed by Grantor or Grantee. [ Signatures of the Parties on Next Page ] EXECUTED this day of , 2010 (the "Effective Date"). GRANTOR: Cecil Stolle a/k/a Cecil W. Stolle Carolyn Laverne Stolle GRANTEE: The City of Lubbock LIM TOM MARTIN, Mayor [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Terry Grantham Attorney for the City of Lubbock Zach Brady Attorney for City of Lubbock John Cox Attorney for Landowner STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on Stolle a/k/a Cecil W. Stolle. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on Laverne Stolle. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF LUBBOCK 2010, by Cecil 2010, by Carolyn This instrument was acknowledged before me on , 2010, by TOM MARTIN, Mayor. Notary Public, State of Printed Name of Notary My commission expires: Exhibits: A - Metes and Bounds Description of Easement Area B - Pipeline Right -Of -Way Safety Guidelines C - Location of Surface Pipeline Equipment D - Gate Construction Detail and Specifications E - Equipment Covered by Damage Payment under Paragraph 12(ii) F - Unrecorded Leases and Agreements, Unrecorded Deeds of Trust and Unrecorded Easements Exhibit A Survey and Metes and Bounds Description of the Easement Area EXHIBIT 'A►® { 40 I V-FD.CONC. MON. N 88° 00'ii" W 2641.1V l FD. CONC. MON. iU ° YY o S�GTION 1263 N 88'00'Ir W 30' \ ° ? 1155 O N 6 U K V[�, Y GOUNT"Y, T�,XA6 CO 60' Permanent CD \� Easement w: } u',: 60' Tempror000): y In: 00 Canst. EEsmt. 451 AC, 0 cv Cedl Stolle Vo1.291 P9.107\\ ` /91.22 Rods - Pere t Esmt \\�` 14.35 Ac. -Permanent Esmt\�\ 1 265 �`�`• FD. CONC. MON. \� �`, F0. CONC. MON. 127.1 1 273 $..88, oo'" ..264�:0� ... .... K.E. Davles Estate Vol.284 Pg.331 P.O.B. '244.76, ®- Set 1/2" Iron Rod With Cap Y-7182520.75 j A legal description of even survey dote herewith X-1032554.67 accompanies this survey plot. : - . N Sur a edLonhe gr rc -Moy, 2009 %� •gOpgqAQODC-CQQQ°0006ggR�'�e. W E Registered r fessional Land Surveyor 4 e�saggQDacnqrqqasxanvr= Date, f a+tl 2 vaq •�ressaQ t' S All Northings and Eastings shown are project coordirid r and may a converted to Texas State Plane Coordinates; North Central Zone, NAD83 by dividing by a surface SCALE: 1' - 600' REVISION: PLAT DATE. 4-30 adjustment factor of 1.00023915 All distances shown ore surface distances. CLIENT: PARKHILL, SMITH & COOPER - CITY OF LUBBOC DRAWN BY: B. BURROW SURVEY DATE:3-5,20i Bearings shown are grid bearings based on the Texas SURVEYED BY: J.M. MARTIN CHECKED BY: G. WILSON State Plane Coordinate System, North Central Zone, FILE: PAR40.d n FILE NO. 35 7fi0 SHEET 1 OF NAD83 Datum. This survey and allinformation hereon is for the exclusive use ofV3M �L t€�*- CITY OF LUBBOCK and shall not be copied or used except for the purpose for which 70td S%SWIE 202-LU6806K,TX.79413 it is expressly furnished. this drawing and oil copies (partial or'606,788.0020 • FAX t806f 792-1646 complete) shall be returned to the owner upon demand. EXHIBIT "A" PARCEL NO.40 CECIL STOLLE Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southwest Quarter of Section 1263, J.H. Gibson Survey, Lynn County, Texas and said pipeline centerline being described as follows: Beginning at a 1/2" Iron rod with cap, set on the North right of way line of a sixty -foot county road, for the beginning of this description, from whence a 81`x8" concrete monument found for the Southeast corner of the Southwest Quarter of said Section 1263, bears South 2000'08" West, a distance of 30.00 and South 88°p0'01" ]East, a distance of 244.76 feet, said point of beginning having a project coordinate of Y = 7182520.75 and X = 1032554.67; once North 46035'11" West, along the centerline of said Sixty -Foot (601 wide permanent pipeline cement, a distance of 3155.21 feet to a 1/2" iron rod with cap, set on the East right of way line of ry-foot county road, for the end of this description, whence a 4"x4" concrete monument found for the thwest corner of the Southwest Quarter of Section 1263, bears North 8800011" West, a distance of 00 feet and North 1059'53" East, a distance of 524.47 feet. 191.22 rods (4.35 acres). 'he above described sixty foot (601 wide permanent pipeline easement is also subject to a sixty foot 60') wide temporary construction easement being parallel and adjacent to said permanent pipeline Casement, located and shown on the accompanying survey plat and said temporary construction easement contains 4.51 acres of land. The said temporary construction easement shall expire as noted n the easement agreement. . A survey plat of even survey date herewith accompanies this legal description. . Surveyed on the ground March -May, 2009. . Bearings shown are grid bearings based on the Texas State Plane Coordinate System, Texas North entral Zone, Nad83 Datum. . All distance shown are surface distances. . Surface adjustment factor for entire project is 1.0002396 OF P . ereVP ofessional Land Surveyor sj?,��V��a,� p 1- d bQ14.PLLQ[GI.I�DOO..••••" `i (MRY D, VOi ROW t•.laoa. a.cf6DDDtUa.e.•+pare 14. -a_.A AS1ER _W r Ph � U 14 HIGH-TECH LAND AND GPS ►SURVEYORS, INC. 3330 70th St, Suite 202 - Lubbock, Texas 79413 (806) 788-0020 - Fax (806) 792-1646 Exhibit S Pipeline Safety Guidelines So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the Easement, as well as applicable laws and regulations: 1. Except during construction or maintenance of the Pipeline, driving within the Easement Area is limited to use of currently established roadways, if any, and any trail roads constructed by Grantee on non -cultivated lands. 2. Smoking outside vehicles within the Easement Area or lands or premises is prohibited. 3. No firearms, drugs, or alcohol are permitted in the Easement Area and no photographs may be taken in the Easement Area except in connection with Permitted Uses and for no other purposes. All commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. 4. Pedestrians and non -motorized traffic have right-of-way over motorized traffic 5. The maximum speed limit within the Easement Area is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 6. Use hom for safety at blind corners and when passing. 7. Use established hand signals or turn indicators S Observe all signs including pipeline markers. 9. Come to complete stop on entering or leaving gates within the Easement Area. 10. All persons entering the Easement Area must be fully clothed. 11. No debris or trash shall be discarded on the Easement Area or the Temporary Easement Area. Exhibit C Locations of Surface Pipeline Equipment No Text No Text Exhibit D Gate Construction Detail and Specifications 5"x9'-6" SCH, 40 PIPE W/%4" i0F PLATE--\�T-- NOTES FOR FSES AND GATFS; /- 3" COLLAR D" SI t0 P, CON 2' SCH. 40 PIPE a MINN tlfa��f.rR,ll•Q.� •>Aman V4, GUSSET PLATE 17 r ALL AROUND FE WELDED ALL AROUND. _ GATE DETAIL SCALE: 1/2'-T'-0" IPE 6"x9'-6" SCH. 2" SCH. 40 POPE^ \ TOPPPLATE s' '-SEE NOTE 5 SEE DETAIL 'C"-/ io -6" SCH. T - SHAPE POST W/" Y4" 6'-6LONG (1.33 #/FT.) 4TE W/ANf3lOR PLATE FAIL FEET lu! IL � a CONCRETE T. GATES TO BE INSTALLED AT ALL FENCE CROSSINGS, UNLESS OTHERWISE DIRECTED BY THE OWNER. 2 ALL STEEL GATES, POSTS, CROSS BRACES, ETC., SHALL BE PAINTED BLUE, 3. PROVIDE 1" LINK CHAIN AROUND GATE AND (VELD TO SUPPORT POST. PROVIDE ONE HEAVY DUTY LOCK PER GATE KEYED PER OWNER'S LOCKS. 4. CONTRACTOR SHALL VERIFY EXACT LOCATION OF ALL GATES WITH OWNER PRIOR TO CONSTRUCTION, 5. MINIMUDM 5 5T STRAND FLL ENCE OR AS PERAEXISTINGFENCE WHICHEVER IS GREATER. WHERE EXISTING FENCE HAS PANEL FABRIC, INSTALL 39" PANEL FABRIC WITH 3 STRAND BARBED WIRE, 47" PANEL FABRIC WITH i STRAND BARBED WIRE MINIMUM OR AS PER EXISTING, WHICHEVER IS GREATER. 6. CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONNECT TO EXISTING FENCE, PRIOR TO CUTTING EXISTING FENCE. 7. DIMENSIONS SHOWN ARE FOR FENCES CROSSING AT PERPENDICULAR ANGLE TO PIPELINE. WHERE FENCE CROSSES PIPELINE AT SKEWED ANGLE, DIMENSIONS SHALL BE INCREASED ACCORDINGLY. ' SWING SECTION i 4"x4" MESH WELD 18" OIA. TO GATE FRAME HOLE (TYP.) 1" LONG ON 6" C/C TYPICAL GATE SUPPORT DETAIL SCALE: 1 /2"=7'-O" Exhibit E Equipment Covered by Damage Payment under Paragraph 12(ii) Exhibit F Unrecorded Leases, Unrecorded Agreements, Unrecorded Deeds of Trust, and Unrecorded Easements 4 3 Resolution No. 2010-RO163 TRANSMISSION EASEMENT AGREEMENT STATE OF TEXAS § COUNTY OF LYNN § This TRANSMISSION EASEMENT AGREEMENT (this "Agreement") is made and executed to be effective as of ZX - a _, 2009 (the "Effective Date") by and among CECIL STOLLE, ALSO KNOWN AS CECIL W. STOLLE and CAROLYN LAVERNE STOLLE, ALSO KNOWN AS CAROLYN L. STOLLE (collectively, and together with their heirs, successors and assigns hereunder, "Owner") for the benefit of RED HOLLOW WIND, LLC, a Delaware limited liability company (together with its successors and assigns hereunder, "Grantee"). RECITALS: A. Owner is the owner of the approximately 160 acres of land (the "Land") situated in Lynn County, Texas, described in Schedule I attached to and made a part of this Agreement. B. Owner desires to convey to Grantee an easement pursuant to the terms of this Agreement. NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Owner hereby agrees as follows: ARTICLE 1 THE EASEMENT Section I. L Grant of Easement. Owner hereby grants and conveys to Grantee, subject to the matters set forth herein, (a) an exclusive easement in gross for the term set forth in Section 4.8 below upon, through, under, over, across and above that portion of the Land designated in Schedule 11 attached to and made a part of this Agreement for the purposes set forth in Section 1.2 below (the "Transmission Easement") and (b) an easement in gross for the purposes of ingress, egress and access upon, through, over and across the Land by means of roads and lanes thereon if existing, or otherwise by such route or routes as Grantee may construct or improve from time to time for purposes of access to the Transmission Easement and its ownership and operation thereof (the "Ingress and Egress Easement") (the Transmission Easement and the Ingress and Egress Easement are collectively referred to herein as the "Easement"). The phrase "in gross" with respect to the Easement means that the Easement is an interest that is not tied to any particular use or ownership by Grantee or its successors or assigns of any land that is adjacent to the Land or otherwise. Owner further hereby grants and conveys to Page 1 of 13 308OOv.2 No Text Grantee, subject to the matters set forth herein, a temporary construction and maintenance easement (the "Construction Easement") to install, construct and maintain the Transmission Facilities (hereinafter defined), said Construction Easement being located immediately adjacent to the Transmission Easement and extending 50 feet from the Transmission Easement and being effective only during periods of time when Grantee installs, constructs and/or maintains the Transmission Facilities. Section 1.2. Transmission Easement Purpose. The Transmission Easement shall be for the purpose of the development, erection, construction, installation, replacement, repair, relocation, removal, maintenance, operation and use of the following from time to time in connection with wind energy projects, whether located on the Land or elsewhere (the "Wind Energy Project(s)"): (a) a line or lines of poles or towers, together with such wires and cables as from time to time are suspended therefrom, and/or underground wires and cables, for the transmission of electrical energy and/or for communication purposes, and all necessary and proper anchors, support structures, foundations, footings, crossarms and other appliances and fixtures for use in connection with said towers, wires and cables and (b) roads associated with the foregoing (such towers, wires, cables, facilities and other enumerated items in clauses (a) and (b) are herein collectively called the "Transmission Facilities"). In the construction and installation of Transmission Facilities, Tenant agrees, if feasible in the reasonable determination of Tenant, to utilize single pole structures and to install the Transmission Facilities in or in close proximity to the road easement of County Road 8. Section 1.3. Use of Easement. The Easement shall be for the use and enjoyment of Grantee and its employees, contractors, subcontractors, agents, licensees, and invitees; provided that, subject to the restrictions set forth in Section 3.2 and elsewhere in this Agreement, Owner expressly reserves unto itself and its employees, contractors, subcontractors, agents, licensees and invitees the right to use and enjoy the Land and land owned by Owner that is adjacent to the Land for any purpose whatsoever. Section 1.4 Condemnation. Should title or possession of all of the Easement be taken in condemnation proceedings by a government agency or governmental body under the exercise of the right of eminent domain, or should a partial taking render the remaining portion of the Easement unsuitable for Grantee's use, Grantee shall be entitled to any award made for (a) the cost of removal and relocation of any Transmission Facilities that Grantee has the right to remove, (b) the loss of or damage to any Transmission Facilities that Grantee elects or is required not to remove, and (c) the loss of use of the Easement. It is agreed that Grantee shall have the right to participate in any settlement discussions related to any eminent domain proceedings concerning the portion of the Land upon which the Easement is located. ARTICLE 11 RELEASE Section 2.L Release by Owner. OWNER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, SUCCESSORS AND ASSIGNS AND ALL SUCH PARTIES' STOCKHOLDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS, Page 2 of 13 3osaov.2 EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, FAMILY MEMBERS AND INVITEES (COLLECTIVELY, THE "OWNER PARTIES"), HEREBY RELEASES AND DISCHARGES EACH OF GRANTEE AND GRANTEE'S AFFILIATES, SUCCESSORS AND ASSIGNS AND ALL SUCH PARTIES' STOCKHOLDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS AND INVITEES (COLLECTIVELY, THE "GRANTEE PARTIES") FROM ANY LOSSES, LIABILITIES, DAMAGES, COSTS, CLAIMS, SUITS AND CAUSES OF ACTION (INCLUDING LOSSES OR CLAIMS FOR PERSONAL INJURIES OR DEATH AND PROPERTY DAMAGE AND INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF LITIGATION) (COLLECTIVELY, "LOSSES") ATTRIBUTABLE TO (i) INTERFERENCE WITH WIND ON ANY PROPERTY OWNED IN WHOLE OR IN PART BY OWNER THAT IS ADJACENT TO THE EASEMENT; AND (ii) DANGERS, HAZARDS, NUISANCES AND/OR OTHER CONDITIONS ASSOCIATED WITH ELECTRICAL GENERATING FACILITIES, SUCH AS AUDIBLE AND ELECTROMAGNETIC FIELDS, ELECTROMAGNETIC NOISE, ELECTRICAL INTERFERENCE, RADIO FREQUENCY INTERFERENCE OR CELL TOWER INTERFERENCE (COLLECTIVELY, "INTERFERENCE AND ELECTRICAL GENERATING FACILITY DANGERS"), EVEN IF SUCH LOSSES ARE CAUSED BY OR ALLEGEDLY CAUSED BY ANY GRANTEE PARTY'S SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT. OWNER, ON BEHALF OF OWNER AND THE OWNER PARTIES, FURTHER WAIVES THE RIGHT TO MAKE ANY CLAIMS FOR LOSSES AS A RESULT OF INTERFERENCE AND ELECTRICAL GENERATING FACILITY DANGERS. Section 2.2. Unknown Claims. Owner hereby agrees, represents and warrants that it realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to claims or Losses which are presently unknown, unanticipated and unsuspected, and it further agrees, represents and warrants that the release set forth in Section 2.1 has been negotiated and agreed upon in light of that realization and that it nevertheless hereby intends to release, discharge and acquit the Grantee Parties from any such unknown claims or Losses relating to Interference and Electrical Generating Facility Dangers. Section 2.3. Limitation of Liability. Neither Owner nor Grantee shall be liable for consequential, incidental, special, punitive, exemplary or indirect damages of any kind or nature, regardless of the form of action, whether in contract, tort or otherwise (including, but not limited to, loss of profits or revenue and losses of rent, business opportunities and the like that may result from a loss of use of the Easement or any portion thereof or otherwise), except to the extent any such party suffers such damages to an unaffiliated third -party in connection with a Loss. ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS Page 3 of 13 30800v.2 Section 3.1. Representations and Warranties by Owner. Owner hereby represents and warrants to Grantee as follows: (a) Authority. Owner is the sole owner and holder of fee simple title to the surface estate of the Land and all appurtenant rights thereto. Owner has full power, authority, capacity and legal right to enter into, execute and deliver this Agreement, and to assign, warrant, set -over, transfer and convey the Easement pursuant to the terms of this Agreement. Each person signing this Agreement on behalf of Owner is authorized to do so. This Agreement constitutes a valid and binding agreement enforceable against Owner and the Land in accordance with its terms. (b) Legal Status; Approvals. Owner, if other than an individual, (i) is duly organized or formed, validly existing and in good standing under the laws of its state of organization or formation, (ii) is duly qualified to transact business and is in good standing in the state where the Land is located, and (iii) has full power and authority to own the Land and carry on its business as now conducted and proposed to be conducted. Owner has all necessary approvals, governmental and otherwise, to own the Land and to execute and deliver this Agreement and the execution and delivery of this Agreement by Owner will not place Owner in default of any agreements to which Owner is a party or bound. (c) No Liens: Warranty. Except as set forth on Schedule III hereto, as of the Effective Date, there are no liens, encumbrances, leases, mortgages, deeds of trust, security interests, licenses or other exceptions (collectively, "Liens") encumbering or affecting all or any portion of the Easement. Owner hereby warrants and agrees to defend title to the Easement unto Grantee against every person whomsoever claiming or to claim the same or any part thereof, by, through, or under Owner but not otherwise. (d) No Third Partftkh . Except as set forth on Schedule III hereto, there are no currently existing options, rights of refusal, sales contracts, or other such rights in favor of any third parties relating to the Easement or any interest therein that could materially interfere with the development, construction, installation, maintenance or operation by Grantee of Transmission Facilities on the Easement or that could materially and adversely affect Grantee's use of the Easement. (e) Hazardous Materials. There are no hazardous or toxic materials (as defined in any applicable federal, state or local laws or regulations) located on the Easement in any amount which would require reporting under applicable environmental laws, and the Easement has not been used for the generation, treatment, storage or disposal of hazardous materials and there are no underground storage tanks located on the Easement. (f) No Litigation. Owner is not a party to any, and to Owner's best knowledge, there are no pending or threatened, legal, administrative, arbitral or Page 4 of 13 30800v.2 other proceedings, claims, actions or governmental or regulatory investigations of any kind or nature whatsoever against Owner (i) challenging the validity or propriety of this Agreement and/or transactions contemplated in this Agreement or (ii) which could reasonably be expected to have a material adverse effect on the ownership, operation or value of the Easement or any part thereof or interest therein. (g) Non Foreign Owner. Owner is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related Treasury Department regulations, including temporary regulations. Section 3.2. Covenants of Owner. Owner covenants and agrees as follows: (a) Maintenance of Land. Owner shall operate and maintain the Land so as not to, and so as to cause third parties not to interfere with Grantee's use of the Easement. Without limiting the generality of the foregoing, Owner shall not violate any federal, state or local law, ordinance or regulation relating to the generation, manufacture, production, use, storage, release or threatened release, discharge, disposal, transportation or presence of any substance, material or waste which is now or hereafter classified as hazardous or toxic, or which is regulated under current or future federal, state or local laws or regulations, on or under the Easement. (b) No Interference. Owner agrees that Owner will not, and will cause the other Owner Parties (as defined in Section 2.1) not to, construct or install any structure or other improvement on the Transmission Easement. Further, Owner shall not and shall cause the other Owner Parties not to take any action that could (i) in any way interfere with or impair the transmission of electric, electromagnetic or other forms of energy across the Transmission Easement, (ii) interfere with or impair Grantee's access to the Transmission Easement, or (iii) otherwise interfere with Grantee's intended use of the Easement. Owner shall not take any action or grant any third party any rights in the Easement that could materially interfere with the development, construction, installation, maintenance or operation of any Transmission Facilities on the Easement or that could materially and adversely affect Grantee's use of the Easement. In no event shall Owner grant any rights to any third party to develop, construct, install or maintain or operate any Transmission Facilities on or around the Easement without Grantee's prior written consent, which consent may be withheld in Grantee's sole discretion. Owner shall not, and shall not permit any third party to, use the Easement for hunting purposes. (c) Liens. Owner shall not, without the prior written consent of Grantee, create or permit to be created or to remain, any Liens with respect to the Easement or any part thereof. Concurrently herewith, Owner has caused to be delivered to Grantee a Subordination and Non -Disturbance Agreement (as defined below) from each party that holds a Lien on any portion of the real property that is subject to the Easement or has other rights that might interfere with Grantee's Page 5 of 13 308OOv.2 rights under this Agreement. A "Subordination and Non -Disturbance Agreement" shall mean an agreement between Grantee and the holder of a Lien that provides that the holder of such Lien shall (i) subordinate such Lien to Grantee's interest under this Agreement, (ii) agree not to disturb Grantee's possession or rights under this Agreement, (iii) provide notice to Grantee and its lenders of defaults under the Lien documents, and (iv) comply with such other requirements as may be reasonably required by Grantee or its lenders to protect the interests of Grantee or its lenders. If, after the date hereof, Grantee consents to the creation by Owner of additional Liens with respect to the Easement or any part thereof, Owner shall, prior to granting such Lien, obtain a Subordination and Non -Disturbance Agreement in favor of Grantee from each party that will hold a Lien on any portion of the Easement or will have other rights that might interfere with Grantee's rights under this Agreement. All Subordination and Non -Disturbance Agreements obtained by Owner pursuant to this Section 3.2(c) shall be in a form reasonably acceptable to Grantee and Grantee's lenders, if any, and shall be in a form that may be recorded following their execution. Owner and Grantee agree that any Liens granted in violation of this Section shall be deemed void ab initio. (d) Requirements of Governmental Agencies. Owner shall fully cooperate with Grantee, at no out-of-pocket expense to Owner, in connection with (i) Grantee's negotiation and execution of access or transmission easements with owners of properties adjacent to or in the vicinity of the Easement, (ii) obtaining and complying with any land use or environmental permits and approvals, building permits, environmental impact reviews or any other approvals required for the financing, construction, installation, relocation, replacement, maintenance, operation or removal of any Transmission Facilities upon the Transmission Easement, including, without limitation, execution of applications for such approvals, and (iii) providing affidavits or documents from Owner customarily required by title companies. In connection with any application by Grantee for a governmental use permit, approval, authorization or other consent, or any governmental review of any previously issued permit for the installation, continued operation, modification or replacement of Transmission Facilities on the Easement, Owner agrees to support and not oppose, in any way, whether directly or indirectly, any such application or approval, at any administrative, judicial or legislative level. (e) Cooperation with Litigation. Owner shall promptly (i) inform Grantee of any disagreements, disputes, threatened litigation or pending litigation between any Owner and any other party that may materially impact Grantee's use of the Easement, (ii) promptly give Grantee copies of any notices, correspondence or other written or digital communication received by Owner in connection with any such disagreement, dispute, threatened litigation or pending litigation, and (iii) vigorously defend against any such disagreement, dispute, threatened litigation or pending litigation, if the same will have, or could reasonably be expected to have, a material adverse effect on Grantee's use of the Easement. Page 6 of 13 30800v.2 Section 3.3 Representations. Warranties and Covenants by Grantee. Grantee hereby represents and warrants to Owner and covenants and agrees as follows: (a) Authority. Grantee has full power, authority, capacity and legal right to enter into, execute and deliver this Agreement. Each person signing this Agreement on behalf of Grantee is authorized to do so. This Agreement constitutes a valid and binding agreement enforceable against Grantee in accordance with its terms. (b) Legal Status; Approvals. Grantee (i) is duly organized or formed, validly existing and in good standing under the laws of its state of organization or formation, (ii) is duly qualified to transact business and is in good standing in the state where the Land is located, and (iii) has full power and authority to carry on its business as now conducted and proposed to be conducted. Grantee has all necessary approvals, governmental and otherwise, to execute and deliver this Agreement and the execution and delivery of this Agreement by Grantee will not place Grantee in default of any agreements to which Grantee is a party or bound. (c) Weed Control. After written request by Owner and to the extent that the presence of noxious weeds in the vicinity of the Transmission Facilities are the result of Grantee's actions, Grantee shall apply an herbicide or soil sterilant within five (5) feet from the base of the Transmission Facilities once every three (3) years during the term of this Agreement until the noxious weeds are controlled or eradicated. ARTICLE IV MISCELLANEOUS Section 4.1. Notices. All notices, requests and communications under this Agreement shall be given in writing by (a) personal delivery (confirmed by the courier delivery service), (b) expedited delivery with proof of delivery, (c) facsimile and confirmed with a copy of such notice sent by mail, or (d) first class registered or certified mail, postage prepaid, return receipt requested, to the individuals and addresses indicated below: If to Owner: Cecil and Carolyn Laverne Stolle 815 S 20" St. Slaton, TX 79364 Phone: (806) 828-6782 If to Grantee: Red Hollow Wind, LLC Page 7 of 13 30800v.2 Attn: Thomas H. Houle/Charles D. Jennings 2700 Via Fortuna Suite 150 Austin, TX 78746 Phone: (512) 732-2099 Fax: (512) 732-2045 Except as expressly provided herein, any notice provided for herein shall become effective only upon and at the time of first receipt by the party to whom it is given, unless such notice is mailed by certified mail, return receipt requested, in which case it shall be deemed to be received two (2) business days after the date that it is mailed. Any party may, by proper written notice hereunder to the other party, change the individual address to which such notice shall thereafter be sent; provided, however, such new notice address will not be effective until ten (10) business days after delivery of notice of the new notice address. Section 4.2. Assignment. Subject to Section 3.2(c), this Agreement and the rights of any party to this Agreement and the Easement may be assigned, encumbered or mortgaged, in whole or in part, without the prior written consent of the non -assigning party but no such assignment, encumbrance or mortgage shall operate to enlarge the obligations or diminish the rights of the non -assigning party hereto (except as expressly provided below, with respect to the release of the assigning party). Notwithstanding the foregoing, no assignment, encumbrance or mortgage of this Agreement or the rights of any party hereunder or to the Easement, however accomplished, shall be binding on the non -assigning party until twenty (20) days after the non -assigning party has been furnished with written notice thereof and an executed original counterpart of the instrument establishing such persons' rights under this Agreement and/or to the Easement. In the event of an assignment of this Agreement by any party hereto that is not for collateral or other security purposes, such party shall be relieved of all obligations under this Agreement as to the interest so assigned to the extent that such obligations relate to periods of time following such assignment and are assumed by the party to whom assigned, and liability for obligations relating to the interest so assigned and assumed and relating to the periods of time from and after such assignment shall rest exclusively upon such assignee. Without limiting the generality of the foregoing, any such assignment shall not relieve the assigning party from any obligation that arose or accrued prior to such assignment. Section 4.3. Successors and Assigns. The Easement shall run with the Land and be binding on Owner and on all subsequent owners of the Land. This Agreement shall inure to the benefit of and be binding upon Owner and Grantee, and their respective heirs, transferees, successors and assigns, and all persons claiming under them. Section 4.4. Entire Agreement; Amendments. Owner and Grantee hereby agree as follows: (a) General. This Agreement, including all of the Schedules attached hereto, constitutes the entire agreement between Owner and Grantee respecting Page 8of13 30800v.2 the Easement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties pertaining to the Easement. Any agreement, understanding or representation respecting the Easement or any other matter referenced herein that is not expressly set forth in this Agreement or in a subsequent writing signed by both parties shall be null and void and of no force or effect. This Agreement shall not be modified or amended, except in writing signed by both parties and no purported modifications or amendments, including, without limitation, any oral agreement, course of conduct or absence of a response to a unilateral communication, shall be binding on either Ply (b) Schedule H Amendments, If Grantee determines that the Transmission Facilities must be installed on a portion of the Land not described in Schedule II or that the width of the Transmission Easement is not sufficient for the installation of the Transmission Facilities or any portion thereof, Grantee shall consult with Owner regarding the alternate location or width, and Owner agrees to execute an amendment to this Agreement to modify the location and/or width and legal description of the Transmission Easement in Schedule 11 within twenty (20) days of written request by Grantee. Section 4.5. Further Assurances. Owner will, whenever reasonably requested by Grantee, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, all conveyances, assignments and all other instruments and documents as may be reasonably necessary in order to complete the transactions herein provided and to carry out the terms and provisions of this Agreement. Section 4.6. Governing Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of Texas. Section 4.7. Severabili y. If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby and the parties shall promptly negotiate to restore this Agreement as near as possible to its original intent and economic effect. Section 4.8. Term. Subject to Grantee's right to terminate this Agreement as hereafter provided, the initial term of this Agreement shall be for a period of forty (40) years commencing on the Effective Date, and may be automatically renewed by Grantee for two (2) additional ten (10) year terms with one hundred and twenty (120) days prior written notice to Owner. Grantee shall have the right to terminate this Agreement as to all or any part of the Transmission Easement at any time, effective upon thirty (30) days' written notice to Owner. Page 9 of 13 308OOv_2 Section 4.9. Ca tp ions. The captions in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Agreement or the scope or content of any of its provisions. Section 4.10. Gender and Number. Within this Agreement, words of any gender shall be held and construed to include any other gender, and words in the singular number shall be held and construed to include the plural, unless the context otherwise requires. Section 4.11 Compensation. Owner and Grantee agree that the terms for the compensation to be paid by Grantee to Owner in consideration of Owner's grant of the Easement, the Construction Easement and the other covenants and agreements of Owner herein are set forth in an unrecorded letter agreement between Owner and Grantee dated as of the Effective Date and, by reference, are incorporated into and made a part of this Agreement for all purposes. [SIGNATURE TO FOLLOW] Page 10 of 13 30800v.2 IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date. "Owner" Cecil Stolle, also known as Cecil W. Stolle 01', , -V, - -,0, -7 Carolyn L Verne 8tolle, also known as Carolyn L. Stolle "Grantee" RED HOLLOW WIND, LLC, a Delaware limited liability company By: Fremantle Energy Holdings LLC, a Delaware limited liability company Its Sole Member Houle, Director Jennings, Director Page 11 of 13 30800v.2 STATE OF TEXAS § COUNTY OF The foregoing instrument was acknowledged before me this P6 day of 2009, by Cecil Stolle, also known as Cecil W. Stolle. "o'NIstArELSY D. MEANS i 01 t M'j, XPIRES COMMISSION E 27,200 STATE OF TEXAS COUNTY OF Ll-6"j- I Notary PubliY in and for the State of Texas My commission expires: 12 2--7 - 10 The foregoing instrument was acknowledged before me this c9 L day of RujL's 3- , 2009, by Carolyn LaVerne Stolle, also known as Carolyn L. Sto-fle. SHELBY D. MEANS ,MY COMMISSION EXPIRES December 27,2010 STATE OF TEXAS § COUNTY OF TRAVIS § Notary Public in and for the State of Texas My commission expires: 1-2-1-7-1 D The foregoing instrument was acknowledged before me this 31 day of 2009, by Thomas H. Houle, Director of Fremantle Energy Hofdin>s, LLC, a Delaware limited liability company, the sole member of Red Hollow Wind, LLC, a Delaware limited liability company on behalf of said limited liability company. L('Lm—mltd" — �—tary Public n and for id State of Texas JUNE MARIE M. GRAY N o Notary Public, state of Texas My commission expires: 3-2-7--Ze-qj My Commission Expires Motch 27, 2011 Page 12 of 13 308OOv.2 STATE OF TEXAS COUNTY OF TRAV IS The foregoing instrument was acknowledged before me this 31 day of A , g s- , 2009, by Charles D. Jennings, Director of Fremantle Energy H dis, LLC, a Delaware limited liability company, the sole member of Red Hollow Wind, LLC, a Delaware limited liability company on behalf of said limited liability company. No ry Public in and for the4tate of Texas My commission expires: 3-27-2-al i JUNE MARES M, 01k1 " Notary Public, Stag of Texas My Commission E, Match V. 2011 I Page 13 of 13 30800v.2 SCHEDULEI LAND THE FOLLOWING REAL PROPERTY LOCATED IN THE LYNN COUNTY, TEXAS: 160 acres, more or less, more particularly described below and in the Warranty Deed recorded in Vol. 291 Page 108 in the Real Property Records of Lynn County, Texas as: Southwest One -Quarter (SW/4) of Survey No. 1263, Abstract No. 1277, John H. Gibson Survey, Pat. No. 375, Vol. 30, dated April 26, 1978, Lynn County, Texas containing 160 acres, more or less Schedule I - Page I 30800v.2 SCHEDULE II LEGAL DESCRIPTION OF TRANSMISSION EASEMENT THE FOLLOWING REAL PROPERTY LOCATED IN THE LYNN COUNTY, TEXAS: 6 acres, more or less, shown in Schedule II- Page 2 and more particularly described as: A 100 foot wide strip, more or less, being approximately 'h mile in length, running adjacent and parallel to the county road easement along the southern property boundary of the Southwest Quarter (SW/4) of Survey No. 1263, Abstract No. 1277, John H. Gibson Survey in Lynn County, Texas. Schedule 11- Page 1 30800v.2 LEGEND r a�. w Easement��, k iProperty Boundary ' Road N A Ir r r i t 1 i 1 1 1 - 1 t 1 1 � 1 i _ � 1 ��•;; / - 8 100 +/. Foot Wide Easement rxF.NIANTI.h SCHEDULE II SCALE: Not To Scale FILENAME: Sto0eEaaementSchedMaP.pn9 ? STOLLE - APPROX 6 ACRES OUT OF SECTION 1263, ABSTRACT 1277, J.H. GIBSON SURVEY DATE:BROw zoos EA F,IZGY BY:v:BR LYNN COUNTY, TX APPROVED: BR Schedule II - Page 2 30800v.2 SCHEDULE III LIENS AND THIRD PARTY RIGHTS Mineral Rights Owners — Cecil and LaVerne Stolle — %2 interest Carol Cowen —'/2 interest Easements- CO2 pipeline easement - Oil pipeline easement Schedule III - Page 1 30800v.2 Resolution No. 2010—R0163 CONTRACT FOR PURCHASE OF EASEMENT This Contract For Purchase of Easement (the "Contract") is made on this day of - , 2010 ("Effective Date"), by and between Martha Basinger, Individually and as Executrix of the Estate of J.D. Basinger, Deceased (referred to herein as "Seller" whether one or more) and the City of Lubbock, Texas, a Texas home rule municipal corporation (referred to herein as "Buyer"). RECITALS WHEREAS, Seller owns the Easement Area (as defined in the Easement Agreement (the "Easement Agreement") attached hereto as Exhibit A) and the Temporary Easement Area (as defined in the Easement Agreement) (the Easement Area and the Temporary Easement Area shall be collectively referred to herein as the "Easement Area"); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a permanent and temporary easement (collectively, the "Easement") over, across and upon the Easement Area, and the Temporary Easement Area in accordance with the terms of the Easement Agreement. ARTICLE I SALE OF EASEMENT For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Easement and all rights incident thereto as described in the Easement Agreement attached hereto and incorporated herein for all purposes. ARTICLE If PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Easement described herein is the sum of Dollars ($ ) (the "Purchase Price") which amount is the sum of the amounts set forth in Paragraph 16 of the Easement Agreement. 2.02 Independent Contract Consideration. Within seven (7) business days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of this Contract. The Independent Contract Consideration is to be credited against the Purchase Price at closing, if Closing (as identified below) occurs. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Within fifteen (15) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by West Texas Title Company ("Title Company") setting forth its exceptions to title ("Exception/Exceptions") and copies of any such Exceptions. 3.02 Survey. Buyer, at Buyer's sole cost and expense, has caused a current on the ground survey for the Property (the "Survey") to be delivered to Buyer. Seller shall furnish any affidavits, certificates, assurances, and/or resolutions required by the Title Company, if any, in order to amend the survey exceptions as required by Section 3.05 below. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of forty- five (45) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Objections"), if any. Ail items set forth in the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released at or prior to Closing, shall be deemed to be Objections. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies Seller of Objections to any of the matters furnished to Buyer pursuant to Section 3.03, the Seller shall, within fifteen (15) calendar days after Seller is provided notice, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. If Seller fails or refuses to satisfy any Objections within the allowed fifteen (15) calendar day period, such cure period shall be automatically extended an additional fifteen (15) days. If the obligation remains unsatisfied, and if Buyer and Seller do not agree in.writing to an extension of that period, then Buyer has the option of either: (i) waiving the unsatisfied Objections by, and only by, notice in writing to Seller within forty-five (45) calendar days after the expiration of the Title Review Period, in which event those Objections shall become Permitted Exceptions (herein so called); or (ii) terminating this Contract by notice in writing and receiving back the Independent Consideration, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has fee simple title to, and can convey, an easement pursuant to the Easement Agreement over and across the Easement Area, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows: (i) survey exception may be amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (ii) no exception will be permitted for "visible and apparent easements" or words to that effect; (iii) no exception will be permitted for "rights of parties in possession'; (iv) no liens will be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exceptions it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 9 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending ninety (90) calendar days thereafter (the "Absolute Review Period"), based on such tests, examinations, studies, investigations and inspections of the Easement the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Easement suitable for Buyer's purposes. Buyer is granted the right to conduct engineering and/or market and economic feasibility studies of the Easement, and to conduct a physical inspection of the Easement Area, including inspections that invade the surface and subsurface of the Easement Area. If Buyer determines, in its sole judgment, that the Easement Area is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as CONTRACT OF SALE Basinger — City of Lubbock El reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, and neither Buyer nor Seller shall have any further duties or obligations hereunder. ARTICLE V REPRESENTATIONS WARRANTIES COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Easement in accordance with the terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that the Seller has good and marketable fee simple title to the Easement Area, subject only to the Permitted Exceptions. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Unless stated otherwise, within ten (10) days after the Effective Date, Seller, at Buyer's sole cost and expense, shall deliver to Buyer, with respect to the Easement Area, true, correct, and complete copies or notice of all oral or written leases or agreements and/or occupancy agreements of any kind or nature relating to the possession of the Easement Area, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases"); (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall not sell, assign, or convey any right, title or interest whatsoever in or to the Easement Area, or create, or permit to exist, any lien, encumbrance, or charge thereon. 6.03 Survival Beyond Closing. The representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing. ARTICLE VI CLOSING 6.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company. The Closing Date (herein sometimes called), shall be on the earlier to occur of (i) five (5) days following the completion of all conditions precedent to Buyer's performance of this Contract, so long as said date is after the expiration of the Absolute Review Period, unless Buyer elects, in its sole discretion, to close prior to the expiration of the Absolute Review Period; or (ii) as mutually agreed on by Seller and Buyer. Unless provided otherwise herein or agreed upon by Buyer and Seller, Closing shall not be later than fifteen (15) calendar days after the expiration of the Absolute Review Period. 6.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title Company the following items: (i) The Title Policy in the form specified in Section 3.05; (ii) An Easement Agreement, in the form as attached hereto as Exhibit "A", duly executed by Seller and acknowledged; and (b) Buffer. At the Closing, Buyer shall deliver to Seller or the Title Company, the following items: (i) The sum required by Section 2.01 in the form of certified or cashier's check, check or other readily available funds; Both Buyer and Seller shall deliver other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. CONTRACT OF SALE Basinger -- City of Lubbock ARTICLE VII DEFAULTS AND REMEDIES 7.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract. (b) Buyer's Remedies. If 7.01(a) occurs, Buyer may: (i) terminate the Contract and receive the Independent Consideration as Buyer's sole and exclusive remedy, or (Ii) enforce specific performance. 7.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the Items specified in Section 6.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedies. If 7.02(a) occurs, Seller may: (i) terminate the Contract and retain the Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific performance. 7.03 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, In a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: BUYER: Martha Basinger 1419 Quaker Avenue Slaton, TX 79364 Copies to: For Seller: Attn: Dave Booher City of Lubbock 1625 13th Street Lubbock, Texas 79401 Telecopy: (806)775-3074 r Bu er: Attn: Marsha Reed City of Lubbock 1625 13th Street Lubbock, Texas 79401 Telecopy: (806)775-2051 The parties may change their address effective in the same manner as other notices provided hereunder. ARTICLE Vill MISCELLANEOUS 8.01 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and CONTRACT OF SALE Basinger — City of Lubbock interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN LUBBOCK COUNTY, TEXAS. 8.02 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Easement, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 8.03 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 8.04 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. 8.06 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 8.06 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City Council of the City of Lubbock to the Deputy City Manager of Buyer, or his designee. When the context requires, singular nouns and pronouns include the plural. The undersigned represent and warrant their respective authority to execute this contract, and to convey fully, and without reservation or exception, the interest in property described herein. Executed by Seller on the day of 2010. SELLER: MARTHA BASINGER, Individually and as Executrix of the Estate of J.D. Basinger, Deceased Executed by Buyer on the day of CITY OF LUBBOCK TOM MARTIN, MAYOR ATTEST: Rebecca Garza, City Secretary CONTRACT OF SALE Basinger -- City of Lubbock all in APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Ryan J. Bigbee, Attorney for the City of Lubbock CONTRACT OF SALE Basinger -- City of Lubbock Exhibit "A" to Contract of Sate EASEMENT FORM CONTRACT OF SALB Basinger — City of Lubbock EASEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF LUBBOCK § Martha Basinger, Individually and as Executrix of the Estate of J.D. Basinger, Deceased with a street address of 1419 Quaker Avenue, Slaton, TX 79364 (hereinafter referred to as the "Grantor" whether one or more) for a valuable consideration, to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 13t' Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, has granted and does by these presents grant unto Grantee the following described perpetual exclusive easement, servitude and right-of-way, as described herein (hereinafter called the "Easement") through, over, under, upon, across and within the following described lands, described in Exhibit A (hereinafter called the "Lands") situated in Garza County, Texas: Pipelines and Equipment Grantor hereby grants to Grantee a perpetual exclusive Easement to survey, construct, reconstruct, install, upgrade, operate, inspect, maintain, alter, relocate, replace, repair, and remove (hereinafter called "Permitted Uses") pipelines, conduits, drain (blow -off) valves, valve boxes, meters, meter boxes, vents, manholes, manhole covers, corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep well anode stations with power supplies, flow meters, system communication lines and splice boxes, pipeline trail road on non cultivated areas, and equipment and facilities related thereto, or any part thereof (hereinafter collectively called the "Pipeline System"), for and/or related to the transportation of water through, under, upon, over, across and within the Lands. Such perpetual exclusive Easement shall be 60 feet wide, as described in Exhibit A as attached hereto. Further, a temporary construction Easement is hereby granted adjacent to the perpetual exclusive Easement which shall be an additional 60 feet, as described in Exhibit A as attached hereto. The temporary Easement shall terminate upon completion of all construction activities related to that portion of the Pipeline System that requires said temporary Easement as described in Exhibit B as attached hereto. Exhibit A is attached hereto and incorporated herein, and hereby made a part hereof by reference to describe the Easement and the Lands. This Easement is specifically made by Grantor and accepted by Grantee subject to the following terms, covenants, obligations and conditions: 1. Grantee may use and occupy the Easement for the sole purpose of: (a) the right to perform Permitted Uses related to the Pipeline System; (b) the right (for men, material, and equipment) of ingress and egress and regress to and from and access on and along said Easement granted herein, with the right to ingress and egress and regress to and from and access on and along said Easement, for the Permitted Uses; and (c) the right to locate the Pipeline System through, over, under, upon, across and within the Easement Basinger Pipeline Easement Agreement for the purpose of water transportation. Grantee shall use the Easement for the Permitted Uses and Pipeline System and for no other purposes or uses. 2. Grantee covenants and agrees that its use of the Easement and its operations conducted thereon shall, to the best of Grantee's ability, at all times comply with all applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and Grantor's rules and regulations as shown on Exhibit C attached hereto, particularly, but not limited to, those regarding safety, cleanup and distribution and removal of soil, rock and/or trees. Grantee agrees to construct the Pipeline System, in compliance with all Legal Requirements, and with due care for Grantor's property, business and operations. Fences and gates installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made a part hereof. Grantor and Grantee shall each conduct its activities in such a manner as to not unduly interfere with or cause a disruption to the other's business, operations and property or those of other third parties entering or crossing the Easement. In the event it is discovered that Grantee is in violation of any portion of the Legal Requirements, Grantee agrees to commence, upon receipt of written notice of such violation, the process of curing such violation so that Grantee will be in compliance with this subparagraph. Upon completion of any construction project that is part of the Pipeline System and upon completion of any record survey, Grantee shall provide a copy to Grantor of the record survey showing the location of the Easement and Pipeline System and all other installed assets on the Grantor's lands. 3. If Grantee should abandon the Pipeline System, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns. Grantee may abandon the Pipeline System solely by a formal resolution of its governing body that authorizes the abandonment of the Pipeline System and that further resolves that Lake Alan Henry is no longer necessary as part of Grantees water supply. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Lands are located. 4. The Easement Term is hereby defined as the period of time beginning with the granting of the Easement and continuing until such time that the Easement is abandoned by Grantee. 5. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement in Basinger Pipeline Easement Agreement 2 good order, condition and repair following any work related to Permitted Uses on the Pipeline System. 6. Grantee shall be responsible for obtaining all permits necessary to construct and operate the Pipeline System on the Easement. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality covering the Easement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 7. Within the Easement, Grantee shall have the right to cut fences and install gates to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, it shall be properly supported on either side of the contemplated opening by suitable posts and braces. 8. The Pipeline System shall be so located or shall be buried at a sufficient depth so it does not interfere with current cultivation of the soil at the soil levels as they exist at time of execution of this Easement. Following completion of construction, the surface area shall be returned to its preconstruction condition as nearly as practicable. If any of the property shall be grassland, Grantee shall apply grass seed with a native mix from seed that is available and that is the same as existing native grass or comparable to the native grass in the disturbed area. 9. This grant of Easement shall not preclude the right of Grantor to cultivate, use, and enjoy the Lands for any purposes which will not constitute an interference with the Easement, rights and privileges herein granted to Grantee, or endanger any of Grantee's property. However, the right reserved by Grantor as to the perpetual Easement shall not include the right to erect any buildings, reservoirs, structures, or other improvements on the perpetual Easement without the advance written permission of Grantee. 10. Grantor, his successors, assigns, or agricultural lessees or tenants, if any, are to be compensated, as set out herein under Paragraph 16, for all damages to the lands and personal property located thereon, including but not limited to fences, crops, livestock, drainage and/or irrigation systems, as a result or related to the Grantee's use or occupation of the lands pursuant to the rights granted by this Easement, including but not limited to construction, future operation and maintenance of the Pipeline System. Payment of these damages and for the value of this Easement by Grantee, subject to the terms of this paragraph 19, will be in an amount agreed to by Grantor and Grantee and shall be a one-time payment as set forth in paragraph 16, for any and all of such damages, whether occurring or accruing at or after the time of construction of the pipeline system. 11. Grantee shall exercise due care and diligence in the use of the rights and privileges herein granted to it. In case of abandonment of said Easement as provided in Basinger Pipeline Easement Agreement 3 No. 3, the title and interest herein granted shall end, cease, and terminate, and title to the Easement, pipeline, equipment and facilities shall revert to the then owner of the Lands.. 12. The grant of Easement herein contained is subject to all valid and subsisting easements, leases including oil, gas and wind energy leases, and rights -of -way of record affecting the Lands. 13. It is a condition precedent to the payment to the Grantor of the sum named herein that the title to the Lands described herein shall be vested in the Grantor, subject only to the interest of Grantee hereunder and to the matters set out in Paragraph No. 12 hereof and to such other defects, interests, or encumbrances as may be waived in writing by Grantee. Grantor shall provide to Grantee an executed release from any lien holder, tenant, lessee, or other party having an interest in the Easement prior to payment of the compensation called for in Paragraph No. 16 hereof. 14. Grantor shall procure and have recorded without cost to Grantee all assurances of title and affidavits which the Grantor may be advised by Grantee are necessary and proper to show in Grantor title sufficient to grant the above easement free and clear of encumbrances other than those encumbrances expressly defined herein. Abstracts or certificates of title or title insurance may be procured by the Grantee at its expense. The expense of recording this Easement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, if necessary, to obtain any curative documents needed. 15. If Grantee, in its sole discretion, determines that the Easement conveyed to Grantee and described herein should be acquired by judicial procedure, either to procure a safe title or for any other reason, then Grantor and Grantee hereby stipulate that the ultimate award to the Grantor for the Easement conveyed to Grantee and described herein, shall be the same as the purchase price hereinafter stated in Paragraph No. 16, but should the Grantor own a lesser interest than that Easement conveyed to Grantee and described herein, such award shall not exceed that portion of the purchase price stated in Paragraph No. 16 which the value of such lesser easement conveyed to Grantee bears to the value of the entire Easement described herein. 16. As complete consideration for the above grant of easement and for all the rights and privileges granted to the Grantee in this agreement, Grantee agrees to pay Grantor the one time sum of and /100ths Dollars 17. "Grantee" when used in this instrument, shall include The City of Lubbock's officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 18. Words of any gender used in this agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. Basinger Pipeline Easement Agreement 4 19. A. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs), that may be suffered or incurred by Grantor, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement after the effective date of this agreement to the extent caused by Grantee's or its employees, contractors, or agents negligence or willful misconduct. B. When any losses, claims, demands, or causes of action of the types described in Section A of this paragraph are the result of joint or concurrent negligence or willful misconduct of Grantee or their respective employees, contractors or agents, each party's duty of indemnification will be in proportion to its allocable share of such joint liability to the extent permitted by law, as determined by a court of competent jurisdiction. C. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the easement and/or any rights granted hereunder, and Grantor shall be�solely limited to the remedy of actual money damages for such claims, subject to those limitations contained in paragraph 26 hereunder. 20. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold Grantor harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities of whatsoever nature arising from pollution or contamination emanating from the Pipeline System and equipment of Grantee arising from or relating to the performance of this agreement (the "Grantee pollution liabilities"). For the avoidance of doubt, "Grantee pollution liabilities" shall exclude any such pollution liabilities arising from any condition existing before the effective date of the Easement. Grantor agrees to release, indemnify, defend, and hold Grantee harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities of whatsoever nature arising from (1) pollution emanating from the property and equipment of Grantor, (I1) any condition existing before the effective date of the Easement, (III) pollution or contamination migrating or having migrated on, under, or to the Easement from any other location, and (IV) the possession, occupation or use of the remaining portions of the Grantor's adjacent property. 21. It is understood and agreed that this Easement is not a conveyance of the fee estate for any of the Lands covered hereunder, but is only an easement through, over, under, upon, across and within the Lands. 22. The provisions of this Easement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. 23. This Easement contains the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding Basinger Pipeline Easement Agreement 5 pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. 24. In case any one or more of the provisions contained in this Easement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Easement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 25. Any notices or demands provided to be given herein by the parties shall be in writing and mailed by certified or registered mail to the other party at the address set forth above. Any notice or demand shall be deemed to have been received the earlier of five (5) days after the date of mailing or the date of actual delivery as shown by the addressee's certification or registry receipt. 26. Limitation on certain types of damages. Neither party shall be liable to the other party or any of such party's affiliates in any action or claim, including without any limitation, any action or claim for indemnity under paragraphs 19 and 20, above, for loss of profit, loss of product, loss of use, or for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 27. Grantee agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not interfere with or endanger the operations or integrity of Grantee's Pipeline System and Permitted Uses. Additionally, the Grantor will not construct any facilities or perform any activities in or around the Easement and Lands that may violate federal and state regulations regarding the protection of drinking water supplies and facilities that convey such water. Grantor and Grantee agree and hereby give notice to any subsequent mineral, water, wind or energy lessee or grantee of any interest overlying or underlying the Lands owned by Grantor and the Easement, that Grantee will be operating the Pipeline System as a Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted on or in the vicinity of the Easement and Lands which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. Further, no structure shall be placed on the Easement, which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. A. To the extent that Grantor owns any portion of the mineral and/or royalty interest under the Lands defined herein, Grantor surrenders and releases its surface drilling rights and all other rights of surface use of the Easement and Lands incident to the production of oil, gas, hydrocarbons, minerals, wind energy, and water production subject to the following exception and limitation: Basinger Pipeline Easement Agreement 6 i) Grantor reserves and excepts from this release and retains for itself, its successors and its successors -in -interest, all rights to explore for, to drill and produce oil, gas and other hydrocarbons underlying or situated beneath the Easement and Lands by any means whatsoever, including wells directionally drilled from surface location on nearby lands so long as no surface operations are performed on the Easement and so long as such operations will not interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. ii) Grantor shall include the surface use restrictions and covenants provided herein in any subsequent lease or conveyance of the oil, gas and/or mineral estate, wind rights or interests and water rights or interests. 28. Grantee shall have the right to approve the location and means of future third -party pipelines which will cross Grantee's pipeline system. Grantee will not withhold reasonable crossing requests, but will act in a manner to protect Grantee's pipeline system. TO HAVE AND TO HOLD said Easement unto Grantee, its successors and assigns for so long as the same shall be used for the purposes aforesaid subject to the terms and conditions hereof. [ Signatures of the Parties on Next Page ] Basinger Pipeline Easement Agreement 7 EXECUTED this day of , 2008 ("Effective Date"). GRANTOR: Martha Basinger, Individually and as Executrix of the Estate of J.D. Basinger, Deceased GRANTEE: The City of Lubbock By:_ Name: Title: [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: Marsha Reed, P.E. Chief Operations Officer APPROVED AS TO FORM: Terry Grantham Attorney Basinger Pipeline Easement Agreement 8 STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on , 2010, by Martha Basinger, Individually and as Executrix of the Estate of Donald Basinger, Deceased. Notary Public, State of Texas Printed Name of Notary My commission expires: Exhibits: A - Centerline Metes and Bounds Description of Pipeline System B - Survey Plat(s) of Centerline of Pipeline System C - Pipeline Right -Of -Way Safety Guidelines D - Gate Construction Detail and Specifications Basinger Pipeline Easement Agreement 9 No Text Resolution No. 2010-RO163 MEMORANDUM OF LEASE STATE OF TEXAS § COUNTY OF GARZA § This MEMORANDUM OF LEASE ("Memorandum") is made and executed to be effective as of February 27, 2008 by and among J. DONALD BASINGER (collectively, and together with their successors and assigns hereunder, "Owner"), and FREMANTLE ENERGY LLC, a Delaware limited liability company (together with its successors and assigns hereunder, "Tenant"). RECITALS: A. Owner is the owner of approximately 152.981 acres of land (the "Land") situated in Garza County, Texas, described in Schedule I attached to and made a part of this Memorandum, together with all and singular (i) the wind and air rights on or pertaining to the Land (the "Wind Rights") and (ii) all other rights, interests, privileges and appurtenances pertaining to the Land, including any easements and other rights as may be necessary for ingress, egress and maintenance of the Land and any and all right, title and interest of Owner in and to adjacent roads, streets, alleys or rights -of -way (such items in clause (ii) collectively, the "Other Appurtenances"). The Land, Wind Rights and Other Appurtenances are collectively referred to herein as the "Leased Property". B. On February 27, 2008 (the "Effective Date"), Owner and Tenant entered into a Lease Agreement (the "Lease") pursuant to which Owner leased to Tenant and Tenant leased from Owner the Leased Property. C. Owner and Tenant desire to execute this Memorandum to provide constructive notice of Tenant's rights under the Lease to all third parties. NOW, THEREFORE, for and in consideration of the mutual covenants and benefits herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Tenant hereby agree as follows: Section 1. Purpose of Memorandum. The purpose of this Memorandum is to give record notice of the Lease, and of the rights created thereby, all of which are hereby confirmed. The parties, however, advise all parties acquiring interests subsequent to the date of this Memorandum, that the Lease and any and all documents executed in connection therewith, may be amended from and after the date hereof with the consent of the parties thereto, and without amendment of this Memorandum. Without limiting the generality of the foregoing, the Lease, as the same may be amended from time to time without amendment of this Memorandum, shall be binding upon all parties taking interests in the Land subsequent to the date of recordation of this Memorandum. As such, all such parties are hereby on notice that they should inquire as to the terms of the Lease as in effect from time to time, and that third parties may rely on this BOOK 298 PAGE 11-9 Page 1 of 6 Austin 905479v.1 Memorandum solely for record notice of the existence of the Lease and certain of the provisions thereof as of the date of this Memorandum, and not with respect to the specifics of the terms thereof as the same may be in effect from time to time. Section 2. Term of Lease. After the Development Period, the Primary Term shall be for thirty (30) years from the Production Commencement Date, unless extended or sooner terminated as provided in the Lease. Tenant may, at its option extend the Primary Term for two (2) successive periods of ten (10) years each by written notice to Owner at least ninety (90) days prior to the last day of the Primary Term (as the same may have been extended). Section 3. Purpose of Lease. The Lease is for wind energy conversion to electricity on the Leased Property and for the collection and transmission of electric power, by developing and operating wind powered electricity generating projects on the Leased Property and other property, and for related activities and such Lease includes, without limitation, the following rights and privileges for Tenant: (a) the right to develop, erect, construct, install, replace, relocate, repair, remove, maintain, operate and use from time to time, wind turbines (and the foundations, footings and other appliances and fixtures for use with such wind turbines), underground and above -ground electrical transmission and communications lines related to the operation of wind turbines, electric transformers, energy storage facilities, telecommunications equipment, roads, meteorological towers and wind measurement equipment, control buildings, maintenance yards, and related facilities and equipment necessary and/or convenient for the operation and maintenance of one or more wind energy projects on the Leased Property and/or other property, in accordance with the Lease; (b) the right to capture and to convert all of the wind resources of the Land; (c) the right to develop, erect, construct, install, replace, relocate, remove, maintain, operate and use the following from time to time in connection with wind energy projects, whether located on the Leased Property or elsewhere, (i) a line or lines of poles or towers, together with such wires and cables as from time to time are suspended therefrom, and/or underground wires and cables, for the transmission of electrical energy and/or for communication purposes, and all necessary and proper anchor, support structures, foundations, footings, crossarms and other appliances and fixtures for use in connection with said towers, wires and cables; (ii) one or more substations or interconnection or switching facilities from which Tenant or others that generate energy may interconnect to a utility transmission system or the transmission system of another purchaser of electrical energy; and (iii) roads associated with the foregoing (such towers, wires, cables, substations, facilities and other enumerated items in clauses (i), (ii) and (iii) are herein collectively called the "Transmission Facilities"); (d) the right in connection with the use of the Leased Property, of pedestrian and vehicular ingress, egress and access over and across the Land by means of roads and lanes thereon if existing, or otherwise by such route or routes as Tenant may construct or improve from time to time; and Page 2 of 6 BOUK S PAGE 12 Austin 905479v.I (e) any and all right of Owner to select, determine, prohibit or control the location of sites for drilling and/or exploration of minerals in, to and under the Land. Section 4. Ownership of Wind Energy Proiects. Under the Lease, Owner covenanted that, except as otherwise provided in the Lease, Owner had no ownership or other interest in any Improvements (as defined below), and that Tenant could remove any or all such Improvements at any time. As used in the Lease, the term "Improvements" means all WTGs (as defined below), Transmission Facilities, structures, equipment, machinery, wire, conduit, fiber, cable, poles, materials and property of every kind and character constructed, installed and/or placed on, above or below the Leased Property by or on behalf of Tenant. "WTG" means any wind turbine generator or wind machine designed for the generation of electrical power from wind power, including without limitation, the associated towers, support structures, guy wires, braces and directly related equipment. Section 5. No Liens. Under the Lease, Owner is not allowed, without the prior written consent of Tenant, to create or permit to be created or to remain, any liens, encumbrances, leases (except for agricultural, ranching and hunting leases), mortgages, deeds of trust, security interests, licenses or other exceptions with respect to the Leased Property or any part thereof. Any such rights granted without Tenant's consent are void ab initio. Section 6. No Interference; No Third Party Rights. Owner covenanted and agreed under the Lease that Tenant would have the quiet use and enjoyment of the Leased Property in accordance with the terms of the Lease without hindrance or interruption from Owner or any other person or persons. Without limiting the generality of the foregoing, Owner agreed that Owner would not and would cause the other Owner Parties (as defined below) not to construct or install any structure or other improvement that was either within five hundred feet (500') of any WTG or was more than thirty feet (30') in height. Further, Owner agreed that Owner would not, and would cause the other Owner Parties not to, take any action that could (a) interfere with or impair the availability, accessibility, flow, frequency or direction of air and wind over and above the Leased Property, (b) in any way interfere with or impair the transmission of electric, electromagnetic or other forms of energy to or from the Leased Property, or (c) interfere with or impair Tenant's access to the Improvements or to the Leased Property for the purposes specified in the Lease, (d) interfere with any permits required for Tenant's use of the Leased Property or (e) otherwise interfere with Tenant's intended use of the Leased Property. Owner also agreed Owner would not take any action or grant any third party any rights in the Leased Property that could materially interfere with the development, construction, installation, maintenance or operation of any wind energy projects on the Leased Property or that could allow any party other than Tenant to exploit the Wind Rights or that could materially and adversely affect Tenant's use of the Leased Property. Finally, Owner agreed that during the term of the Lease, Owner would not grant any rights to any third party to develop, construct, install or maintain or operate any wind energy projects on or around the Leased Property, including without limitation, construction or upgrading of any Transmission Facilities, without Tenant's prior written consent, which consent shall not be unreasonably withheld. Section 7. Release. Under the Lease, Owner on its own behalf and on behalf of each of Owner's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors, family members and Page 3 of 6 800K SAGE 12 Austin 905479v.1 rrs invitees (collectively, the "Owner Parties') has released and discharged each of Tenant and Tenant's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors and invitees (collectively, the "Tenant Parties') from any losses, liabilities, damages, costs, claims, suits and causes of action (including losses or claims for personal injuries or death and property damage and including reasonable attorneys' fees and costs of litigation) (collectively, "Losses") attributable to (a) interference with wind on any property owned in whole or in part by Owner that is adjacent to the Leased Property; and (b) dangers associated with electrical generating facilities, such as audible and electromagnetic fields, electromagnetic noise, electrical interference, radio frequency interference or cell tower interference (collectively, "Interference and Electrical Generating Facility Dangers"), even if such Losses are caused by or allegedly caused by any Tenant Party's sole, joint or concurrent negligence, strict liability or other legal fault. Section 8. Assignment. Subject to certain restrictions in the Lease, the Lease and the rights of any party to the Lease and the Leased Property, wind energy projects, Transmission Facilities and Improvements may be assigned, encumbered or mortgaged, in whole or in part, without the prior written consent of the non -assigning party but no such assignment, encumbrance or mortgage shall operate to enlarge the obligations or diminish the rights of the non -assigning party thereto. Owner and Grantee acknowledge that this Memorandum will continue to be effective with respect to any assignment under the Lease by either party thereto. Section 9. Successors and Assigns. The Lease shall inure to the benefit of, and be binding upon, Owner and Tenant and their respective heirs, transferees, successors and assigns, and all persons claiming under them. Section 10. No Modification of the Lease. This Memorandum does not alter, amend or modify the terms and provisions of the Lease, but is executed solely for the purpose of giving notice of the existence of the Lease and the terms and conditions therein, which Lease is incorporated herein by reference for all purposes to the same extent and with the same effect as if set forth herein in full. Section 11. Governing Law. This Memorandum shall be governed by and construed, interpreted and enforced in accordance with the laws of the state in which the Leased Property is located. Section 12. Counternarts. This Memorandum may be executed by facsimile and in multiple counterparts, no one of which need be executed by all parties hereto, each of which shall constitute an original. Counterparts thus executed shall together constitute one and the same instrument. [Signatures on Following Page] Page 4 of BOOK 298 PAGE 122 Austin 905479v.1 IN WITNESS WHEREOF, Owner and Tenant have caused this Memorandum to be executed and delivered by their duly authorized representatives as of the date first set forth above. "Owner" .? . Basinger Z.4 "Tenant" Fremantle Energy, LLC, a Delaware limited liability company Name: Thom s H. Houle Title: President Page 5 of 6 Austin 905479v, t STATE OF TEXAS § COUNTY OF § The foregoing instrument was acknowledged before me this 2::J�A day of IF 00 2008, by J. Donald Basinger. JUNE MARIE M. GRAY Notary Public. State of Texas My Commission Expires March 27, 2011 STATE OF TEXAS COUNTY OF �� 4 (/I, M-L No y Public in and for the S e of Texas M ommission expires: •? ,2- ZoII The foregoing instrument was acknowledged before me this c;>,9 day of - 2008, by Qt: - CCw-zw O(Z �Z2 the GG of Fremantle Energy, LLC, a Delaware limited liability company. NoikTfublic in and fofr the State of Njkas My commission expires: 4rk, "— o`er°`•° r6�� n TARf 1� Pik . �n�U+/ii�...Ji�?;J .( r y-01'nn113Wes BOOK Page 6 of 6 Austin 905479v.I Land THE FOLLOWING REAL PROPERTY LOCATED IN THE COUNTY OF GARZA, STATE OF TEXAS: In all 152.981 acres, more or less, more particularly described in the Garza County tax records, the Warranty Deed with Vendor's Lien recorded August 15, 2000 in the Garza County records as Book 251 Page 677-681, and as shown in Schedule I- Page 4 as: Garza County Tax Records AB 892 SEC 1248 B&F SE/4 152.981 AC BLK 1 Garza County Deed Records Property (including any improvements); A tract of land out of the Southeast Quarter (SE/4) of Section 1248, Abstract ts3 No. 892, Certificate No. 1/378, B. & S.F., Patent No. 388, Vol. 31, Garza County, Texas, being fully described by metes and bounds as follows, to -wit: BEGINNING at a rock 16xl4x3 marked N.E. 1246, from which a cypress per and pile of stone bears South 1 %: varas and East 77 varas, also a concrete monument 8x8xl8 marked S.E. 1248-S-W-3-N-W 1240 N.E. 1246 at the Southeast corner of the Southeast Quarter of said Section 1248; THENCE N 89"42' W. 2663.89 feet along the South line of said Section 1248 to a concrete monument 8x8xl8 marked S% 1248-N '/4 1246 at the Southwest corner of the Southeast Quarter of said Section 1248; BOOK 251 PAGE 677 BOOK 9 8 PAGE 1 Qi Schedule I —Page 1 Austin 905479v.1 7 THENCE N. 0"18' E. 2640.28 feet to a concrete monument 8x8xi8 marked CEN 1248 at the Northwest corner of the Southeast Quarter of said Section 1248; THENCE S. 894T E. 2663,89 feet to a concrete monument 8x8x18 marked E '141248-W'/4 3, at the Northeast comer of the Southeast Quarter of said Section 1248; THENCE S. Oil IS' W. 2640.28 feet along the East line of said Section 1248 to the POW OF BEGINNING. SAVE AND EXCEPT a tract of land taken by condemnation by the State of Texas by instrument recorded in Volume 36, Page 384, Deed Records of Garza County, Texas, being further described by metes and bounds as follows: BEGINNING on a stake driven in the ground at a point in the South line of B. Cummings property; same point being at Station 899 & 13.3 on center line of location of proposed new location of Highway No. 7 and the said stake being 2007.5 feet West and 35.0 feet N. 32*81' W. from the Southeast corner of Section 1248, Certificate 1-378, B. S. & F. RR Survey, Garza County, Texas; THE, East 60.0 feet to a stake; THENCE N. 32a81' W. (fifty feet from and parallel with the center line of location) a distance of 1275.3 feet to a stake in the West line of property; THE, South a distance of 184.0 feet along the West property line to a stake, THENCE S. 3205 F E. (fifty feet from and parallel with center line of location) a distance of 1055.3 feet to the South line of property; THENCE East with said line a distance of 60.0 feet to the POINT OF BEGINNING. SAVE AND EXCEPT a tract of land previously conveyed to the State of Texas by instrument recorded in Volume 49, Page 511, Deed Records of Garza County, Texas, being further described by metes and bounds as follows: BEGINNING at the Southwest comer of the Southeast'/4 of Section 1248, said comer being on the centerline of F.M. Highway No. 211 at its Station 134/19; THENCE Northerly along the West line of said Southeast'/4 Section a distance of 40 feet; THENCE S. 89a29' E. along a line 40 feet from and parallel to the centerline of said F.M. Highway a distance of 572.2 feet the Westerly right-of-way line of U.S. Highway No. 84; BOOK 251 PAGE 678 Winterrowd - Basinger DEED VL (CitizensBank) Schedule I — Page 2 Austin 905479v.I Page 2 of 5 M 0 0 L't 29SPAGE 12 to w THENCE S. 32°51' E. along said Westerly right-of-way line a distance of 47.9 feet to the South he of said Section; THENCE N. 89°29' W. along said South section line of 598.5 feet to the POINT OF BEGINNING. SAVE AND EXCEPT a tract of land previously conveyed to the State of Texas by instrument recorded in Volume 94, Page 583, Deed Records of Garza County, Texas, being further described by metes and bounds as follows: BEGINNING at a point in the intersection of the present South right-of-way of U.S. Highway 84 and the North right-of-way of F.M. Highway 211, said point bears North 89°29' W. a distance of2.067.37 feet: THENCE N. 32°51' W. a distance of 47.89 feet from the Southeast corner of Section 1248; THENCE N. 32°5l' W., along the present South right-of-way of said U.S. Highway 84, a distance of 1,042.93 feet to a point in the West line of said 155.22 acre tract; THENCE S. 0°18' W., along said West line of said 155.22 acre tract a distance of 182.87 feet to a point; THENCE South 32°51' E., parallel to and 100.00 feet from the present South right-of-way of said U.S. Highway 84, a distance of 723.97 feet to a point; THE, South 28050' West, a distance of 94.87 feet to a point in the North right-of-way of said F.M. Highway 211; THENCE 89°29' R, along the North right-of-way of said F.M. Highway 211, a distance of 219.74 feet to the POINT OF BEGINNING. Schedule I — Page 3 Austin 905479v.I 9308 ¢IBS ,JH- GIBS•t Jli ELii<RRRRC_i!._- r - 1 'NG.'k -^' -: g` z; ,ty- t - •LOCKN100D. wo tT'i1QQ9437 i 44 GIBBON.J H GI BBON. J H .F ulrt �•- - �•. - f- ...-- . . 1261 1262 <, a i - JOHNSON. SA 46w- 189309 1898 5 - ,.6IBSON, J H - GIBBON. H 1280 i '• �. s 5 "�!.a t" h - l-JbHNSON. SA'i69893_- ,rc. D&SEIRR CO- i 728 .�i •'1 w - -h 0 . T n HAIL: P B J r 189759169288 a AMBS&F GORIDON. L P 12'd� ��` . ! S -;d` :. :`IT R CC tu s! j169278" ' ,x., `.., 189344 _ . � �� r � •m t . _ � ''. s 189738 ( - 189�,88 D& I..lBS&F RR CO TT • - TT RR CO ,, , VJ Rit'CO < 12490,...,.. 121 '. fit••-x. ...� t -. - t i - • D,SW RJ2 CO � 246 -TAILEY, P t(. _ I �FiAks, tl' ' s �.,. - i ' 4 �.' 1 . _HAYS.J rfT�RR CZ? - �69342 16 40 - I. r i TT RR CO I TT R O ' ,� -�• - i-,-'"._ -..;�. ,.;. 4• 1253 1 i'-- •l 1265 I 1258 TALLEY. P '`18 { -, v S - � 189739 ; , 'ir RR,CO-� TT RR QQ' "y 1gg$91;-Y - `169287 ; - , i HE&WT RR CO I-J35,&F ,� yP 189652 •� •"'• - �� 1421-„" 1254 �.nr I i - • - -_ r� s w. BSSF vLLEY, P H ,. t' HALL. B FR>;ZinTLE SCHEDULE I SCALE: Not To Scale BASINGER J DONALD - APPROX 152.981 ACRES OUT OF FILENAME: Ba9lnperJDonSchedMap.pol SECTION 1248, ABSTRACT 892, BS&F SURVEY DATE 02(1312008 BR E N E R G Y GARZA COUNTY, TX BY: APPROVEE ROVED:BR QQ &— FILED FOR RECORD IF day of 1u^ C 20.12L— Schedule I — Pa at-- �� 4o Austin 905479v.1 D�Q� 2 PAGE g� __ JIM PLUMMERo'clock��M. COUNTY CLERK. OARZA COUNTY. TEXAS ay.'4P�� 1� y No Text Resolution No. 2010—RO163 CONTRACT FOR PURCHASE OF EASEMENT This Contract For Purchase of Easement (the "Contract') is made on this day of , 2010 ("Effective Date"), by and between E.B. Murphy, as his sole and separate property, (referred to herein as"el er") and the City of Lubbock, Texas, a Texas home rule municipal corporation (referred to herein as "Buyer ). RECITALS WHEREAS, Seller owns the Easement Area (as defined in the Easement Agreement (the "Easement Agreement ) attached hereto as Exhibit A) and the Temporary Easement Area (as defined in the Easement Agreement) (the Easement Area and the Temporary Easement Area shall be collectively referred to herein as the "Easement Area"); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a permanent and a temporary easement (collectively, the "Easement") over, across and upon the Easement Area and the Temporary Easement Area in accordance with the terms of the Easement Agreement. ARTICLE I SALE OF EASEMENT For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Easement and all rights incident thereto as described in the Easement Agreement attached hereto and incorporated herein for all purposes. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Easement described herein is Dollars ($_ -) (the "Purchase Price") which amount is the sum of the amounts set forth in Paragraph 12 (i), (ii) and (iii) of the Easement Agreement. 2.02 Independent Contract Consideration. Within seven (7) business days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of this Contract. The Independent Contract Consideration is to be credited against the Purchase Price at closing, if Closing (as identified below) occurs. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Within sixty (60) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Buyer and to Seller and to Seller's legal counsel a current Commitment for Title Insurance (the "Title Commitment') for the Property, issued by West Texas Title Company ("Title Company") setting forth its exceptions to title ("Exceptions") and copies of any such Exceptions. 3.02 Survey. Buyer, at Buyer's sole cost and expense, has previously caused a current on the ground survey for the Property (the "Survey") to be delivered to Buyer. Within fifteen (16) days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Seller a copy of the Survey. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of ten (10) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Objections"), if any. Buyer acknowledges and agrees that the Easement will be subject to (A) all items disclosed on Exhibit F to the Easement Agreement, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property, (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rights -of -way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date (the foregoing, together with any exceptions to title that are accepted or waived by Buyer in accordance with Section 3.04 shall be referred to herein as the "Permitted Exceptions"). 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies Seller of Objections to any of the matters fumished to Buyer pursuant to Section 3.03, the Seller shall, within ten (10) calendar days after Seller is provided notice, either to satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. if Seller is unwilling or unable to satisfy the Objections within such ten (10) calendar day period, Buyer or Seller may at its option extend the cure period up to an additional fifteen (15) days or Seller may inform Buyer that Seller is unable or unwilling to cure the Objections. If the Objections remain unsatisfied, and if Buyer and Seller do not agree in writing to an extension of that period, then Buyer has the option of either: W waiving the unsatisfied Objections by, and only by, notice in writing to Seller within five (5) calendar days after the expiration of the cure period, in which event those Objections shall become Permitted Exceptions; or (ii) terminating this Contract by notice in writing and receiving back the Independent Consideration, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract, except as provided in Section 3.06 below. 3.05 Title Policy. At Closing, Buyer, at Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy°) to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has an easement pursuant to the Easement Agreement over and across the Easement Area, subject only to the Permitted Exceptions and the terms of the Easement. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows: (i) if available based upon the Survey, the survey exception may be amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (ii) no exception will be permitted for "visible and apparent easements" or words to that effect; (iii) no exception will be permitted for "rights of parties in possession" (provided that any inspection fees or expenses required by the Title Company to delete this exception shall be paid by Buyer); (iv) no liens will be shown on Schedule B, unless the holder thereof has subordinated its lien rights to the Easement. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exceptions it deems material, in its sole discretion. 3.06 Other Remedies. Notwithstanding anything contained in this Contract to the contrary, if Buyer determines that the easement intended to be conveyed to Buyer and described herein and in the Easement Agreement, or any part thereof or undivided interest therein, should be acquired by judicial procedure to procure good title, then Buyer and Seller hereby stipulate that (i) an agreement, in the same form as the Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Seller for the easement obtained by Buyer by judicial procedure, shall be the same as the consideration stated in Section 2.01 above and in Paragraph 12 of the Easement Agreement, but should the Seller own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Buyer and described herein, such award shall not exceed that portion of the consideration stated in Paragraph 12 of the Easement Agreement which the value of such lesser interest of Seller bears to the value of the entire Easement Area or Temporary Easement Area described herein. This Section 3.06 shall survive any termination of this Contract. ARTICLE IV COVENANTS AND AGREEMENTS 4.01 Covenants and Agreements of Seller. Seller represents and warrants that to Seller's knowledge and subject to the Permitted Exceptions Seller has good and indefeasible title to the Easement Area and further covenants and agrees with Buyer as follows: (a) Seller represents that to the best of its knowledge Exhibit F to the Easement Agreement, when prepared and delivered by Seller, will set forth a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject property, and (iii) all unrecorded easements granted by Grantor which encumber the subject property. Seller will provide to Buyer within thirty (30) days after Seller's receipt of a copy of the Title Commitment, copies of all documents to be described in the Easement Agreement on Exhibit F that are not reflected in the Title Commitment. Buyer shall have ten (10) days after receipt of such documents to object to any matters set forth therein that are not contained in the Title Commitment. Thereafter, Buyer and Seller shall have the same objection and cure rights with respect to such objections as are set forth in Section 3.04. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall not sell, assign, or convey any right, title or interest whatsoever in or to the Easement Area, or create any lien, encumbrance, or charge thereon. ARTICLE V CLOSING 5.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company. The Closing Date (herein sometimes tailed), shall be on the earlier to occur of (i) the date that is ninety (90) days after the Effective Date; or (ii) such earlier date as mutually agreed on by Seller and Buyer. However, the closing date as identified herein may be extended by either party for a period of thirty (30) days in order to comply with the time limits contained in Article III and Article IV. 6.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to the Title Company the following items: (I) An Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Seller and acknowledged; and (b) Buyer. At the Closing, Buyer shall deliver the Title Company, or obtain for itself, the following items: (i) The sum required by Section 2.01 in the form of immediately available funds to be paid immediately to Seller; (ii) The Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Buyer and acknowledged; and (iii) The Title Policy in the form specified in Section 3.05; Both Buyer and Seller shall deliver other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. ARTICLE VI DEFAULTS AND REMEDIES 6.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Seller fails to meet, comply with or perform any covenant, agreement, or obligation on Seller's part required within the time limits and in the manner required in this Contract, or (ii) Seller fails to deliver at Closing, the items specified in Section 5.02(a) of this Contract for any reason other than a default by Buyer under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If 6.01(a) occurs, Buyer may: (i) terminate the Contract and receive the Independent Consideration as Buyer's sole and exclusive remedy, or (ii) enforce specific performance. 6.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract on the occurrence of any one or more of the following events: (i) Buyer fails to meet, comply with or perform any covenant, agreement, or. obligation on Buyer's part required within the time limits and in the manner required in this Contract, or (ii) Buyer fails to deliver at Closing, the items specified in Section 5.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedies. If 6.02(a) occurs, Seller may: (1) terminate the Contract and retain the Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific performance. ARTICLE Vll MISCELLANEOUS 7.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: E.B. Murphy 3200 Maxwell Midland, TX 797054824 Copies to: For Seller: John C. Cox, Esq. K&L Gates, LLP 1717 Main, Suite 2800 Dallas, Texas 75201 Telecopy: (214) 939-5849 BUYER: Attn: Dave Booher City of Lubbock 162513th Street Lubbock, Texas 79401 Telecopy: (806)775-3074 For. Buyer: Attn: Marsha Reed City of Lubbock 162513th Street Lubbock, Texas 79401 Telecopy: (806)775-2051 The parties may change their address effective in the same manner as other notices provided hereunder. 7.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN THE COUNTY WHERE THE PROPERTY IS LOCATED. 7.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Easement, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 7.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 7.05 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. 7.06 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 7.07 Agreement in Lieu of Condemnation. This Contract and the Easement Agreement are entered into by Buyer and Seller as a settlement and compromise lieu of condemnation and the consideration set forth herein and the covenants and agreements of the Buyer set forth in the Easement Agreement are given to Seller in compensation for the acquisition of the Easement in accordance with the Easement Agreement. This Section 7.07 shall survive Closing and the execution and delivery of the Easement Agreement. 7.08 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City Council of the City of Lubbock to the Deputy City Manager of Buyer, or his designee. When the context requires, singular nouns and pronouns include the plural. The undersigned represent and warrant their respective authority to execute this contract, and to convey the interest in property described herein. Executed by Seller on the day of 2010. SELLER: E.B. MURPHY, as his sole and separate property Executed by Buyer on the day of 2010. C7>tR-"t CITY OF LUBBOCK TOM MARTIN, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Ryan J. Bigbee, Attorney for the City of Lubbock Exhibit A to Contract of Sate EASEMENT AGREEMENT SEE ATTACHED EASEMENT AGREEMENT STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF Subject to the terms and conditions set forth in this Easement Agreement (this "A,gyreement'), E.B. Murphy, as his sole and separate property ("Grantor") whose address is 3200 Maxwell, Midland, TX 79705-4824 for and in consideration of the covenants contained herein and other good and valuable consideration to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 13`h Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, hereby grants unto Grantee an easement (the "Easement"} subject to the terms of this Agreement through, over, under, upon, across and within the sixty foot (60') wide area described by metes and bounds on Exhibit A (the "Easement Area") situated in Garza County, Texas: The Easement shall be for the survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of (i) a single underground pipeline located within the Easement Area for the transportation of fresh water (the "Pipeline" ), and (ii) the following equipment and appurtenances related to the Pipeline and situated within the Easement Area: conduits, drain (blow -oft) valves, valve boxes, meter boxes, vents (air valves), manholes, manhole covers (with post around manholes), corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep well anode stations with power supplies, flow meters, system communication lines (including, but not limited to, fiber optic lines), splice boxes, and corrosion control equipment, corrosion monitoring equipment and other equipment and facilities related thereto (collectively, the "Pipeline E ui ment ')(the Pipeline together with the Pipeline Equipment shall be collectively referred to herein as the "Pipeline System"). Further, Grantor hereby grants unto Grantee a temporary construction easement (the "Temporary Easement") for the construction and installation of the Pipeline System over an area sixty feet (60') in width located adjacent to, and abutting, the Easement Area (the "Temporary Easement Area") on the northeast side of the Easement Area as more specifically described on Exhibit A. The Temporary Easement shall terminate and expire upon the earlier of (i) completion of all construction activities related to that portion of the Pipeline System situated within the Easement Area, or (ii) June 30, 2014 (the "Anticipated Pipeline Completion Date"). In the event that the Pipeline System within the Easement Area has not been completed by the Anticipated Pipeline Completion Date, Grantee shall have the option to extend the term of the Temporary Easement for up to two consecutive periods of two (2) years each with the first extension to commence on the Anticipated Pipeline Completion Date and the second extension to commence on the second anniversary of the Anticipated Pipeline Completion Date; provided, however, that the Temporary Easement shall in any event terminate and expire upon the completion of the Pipeline System within the Easement Area and thereafter be of no further force and effect.. In order to exercise its right to extend the Temporary Easement as aforesaid, not later than thirty (30) days prior to the Anticipated Pipeline Completion Date (or the second anniversary of such date if the Temporary Easement has already been extended) Grantee shall deliver to Grantor written notice that it intends to extend the Temporary Easement and pay to Grantor of the sum of $ ** 10% of the amount in paragraph 12(i) below** for each requested two (2) year extension. Upon request of Grantor, after completion of that portion of the Pipeline System situated within the Easement Area, or the termination and expiration of the Temporary Easement, Grantee shall execute and deliver to Grantor a release of the Temporary Easement in a form acceptable for filing. The Easement and Temporary Easement are specifically made by Grantor and accepted by Grantee subject to the following terms, covenants, obligations and conditions: 1. Permitted Uses. Grantee may use and occupy (a) the Easement Area for the sole purpose of: (i) survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline and Pipeline Equipment; (ii) the construction, installation, maintenance and repair of a pipeline trail road within non -cultivated areas of the Easement Area, and (iii) ingress, egress and regress for people, material, and equipment along, over and across the Easement Area to accomplish the purposes stated in paragraph 1(a)(1) provided that after completion of construction of the Pipeline System situated within the Easement Area, and except in cases of emergency or repair, on cultivated land ingress, egress and regress shall be permitted in, but limited to, the use of then -existing turn rows, and (b) the Temporary Easement Area (during the term thereof) for the sole purpose of (i) survey, construction and installation of the Pipeline and Pipeline Equipment; (ii) ingress, egress and regress for people, material, and equipment along, over and across the Temporary Easement Area to accomplish the foregoing, and (c) during the term of the Temporary Easement, the Easement Area and the Temporary Easement Area may be used for the temporary storage of materials and equipment (including pipe for the Pipeline and Pipeline Equipment) (collectively, the "Permitted Uses"). Grantee shall use the Easement Area and the Temporary Easement Area (for the term thereof) for the Permitted Uses, and activities reasonably related thereto, and for no other purposes or uses. 2. Legal Requirements, No Interference. Grantee covenants and agrees that its use of the Easement Area and Temporary Easement Area, and its operations conducted thereon, shall at all times comply with this Agreement and all material applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all material environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and the safety guidelines shown on Exhibit S attached hereto and made a part hereof. Further, Grantor and Grantee shall each conduct their activities in such a manner as to not unreasonably interfere with, or cause disruption to, the other's business, operations and property or those of a third party entering or crossing the easement. 3. Due Care. Grantee covenants and agrees to construct the Pipeline System, and to perform its obligations under this Agreement, in a prudent manner and with due professional care for Grantor's property, business and operations, and according to standard industry practices. 4. Construction Specifications. Grantee covenants and agrees to construct, maintain, repair and replace the Pipeline System in the Easement Area in accordance with the following: (a) Minimum Pipeline Depth. The Pipeline System shall be so located or shall be buried at a sufficient depth so it will not interfere with farming activities currently in practice and cultivation of the soil at the soil levels as they exist at time of execution of this Easement and, in any event, the Pipeline shall be buried at such depth as will allow a minimum coverage of forty-eight inches (48") for current ranchland and a minimum coverage of sixty inches (60") for current farmland. Any Pipeline Equipment that will be installed above plow depth on cultivated lands shall only be installed at the locations identified on Exhibit C or, if no locations are specified on Exhibit C, at such other locations that will not interfere with farming activities and which are approved in writing by Grantor, such approval not to be unreasonably withheld. (b) Ditching. Unless determined by an outside engineer to be impractical due to the existence of rock or material elevation change, all ditching shall be in accordance with the "double ditch" method whereby the top eighteen inches (18") of soil (the "Top Soil") shall be removed from the Pipeline trench (the "Trench") and stored in a pile that is segregated from all other material and debris, and the remaining soil (the "Bottom Soil") shall be removed from the Trench and stored in a pile that is segregated from the Top Soil. When the Trench is refilled after the Pipeline has been laid and the Pipeline Equipment installed, the Bottom Soil shall be placed in the trench first leaving room to fill the uppermost eighteen inches (18") of the Trench to be filled with Top Soil. Top Soil shall be used to fill the remainder of the Trench. Any Bottom Soil remaining after filling the Trench shall (i) on cultivated lands, be removed from the Easement Area and disposed of off of the property of Grantor, and (ii) on uncultivated lands, shall be spread over the Easement Area and Temporary Easement Area in a manner acceptable to Grantor and that will not restrict or limit the re -growth of natural vegetation. Rocks or other debris arising in connection with clearing the Easement Area and ditching the Trench for the Pipeline System shall be removed as set forth in Paragraph 4 (h) below. As stated above, single ditching shall be allowed in all areas where "double ditching" is impractical (as determined by an outside engineer) due to the existence of rock or material elevation change. (c) Trench Leveling. Within uncultivated areas, upon completion of construction of the Pipeline System, excess material may be mounded over the Trench and covered with Top Soil; provided that the mound will be limited to a maximum of one foot (1') in height and will be graded to allow natural drainage. Within cultivated areas, upon completion of construction of the Pipeline System, the Easement area shall be leveled to grade (or as otherwise agreed to by Grantor in writing). In all instances the Easement Area and Temporary Easement Area shall be cleaned up in a professional manner. (d) Maximum Open Segments. The construction, installation, maintenance and repair of the Pipeline System shall be performed in segments so that there is never more than one thousand feet (1000') of open Trench at any one time and no open segment shall be open for more than seven (7) days; provided, however, that excavations for pipeline appurtenances and tunnel/bore crossings may remain open for up to thirty (30) days. (e) Compaction. Grantee shall mechanically compact all fill material to prevent any subsidence. To the extent there exists or hereafter arises any subsidence or erosion arising in connection with the construction, installation, maintenance or repair of the Pipeline System, Grantee shall refill with top soil, re - compact and re -grade all affected areas and take any further action reasonably required to return the surface to a substantially similar, or better, condition than adjacent undisturbed areas and prevent future subsidence or erosion. In furtherance of the foregoing, Grantee shall inspect the Pipeline at an interval of (i) six months, (ii) twelve months, and (iii) eighteen months after initial Pipeline System construction, and promptly refill and re -compact any subsidence or erosion existing at such times in order to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and take any further action reasonably required to prevent future subsidence or erosion. The inspections periods set forth above are not intended to be a limitation on Grantee's ongoing duty to fill, compact and maintain the grade of the land around the Pipeline. Accordingly, in the event that Grantor at any time discovers any subsidence or erosion after the installation of the Pipeline (whether before or after expiration of the inspection periods provided for above), Grantor may provide notice of such subsidence or erosion to Grantee. Within thirty (30) days' after Grantee's receipt of such notice, Grantee shall commence and thereafter diligently and without unreasonable delay refill with top soil, re -compact and re -grade all affected areas and take any additional action as may be reasonably required to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and to prevent future subsidence or erosion. (f) Disc Plowing. If requested by Grantor, after completion of construction of the Pipeline the top 6 to 12 inches of the Easement Area and Temporary Easement Area through cultivated fields shall be disc plowed to loosen up soil for farming operations. (g) Gates. Grantee shall install gates at each existing fence to be crossed within the Easement Area and the Temporary Easement Area in order to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, Grantee will set H-braces on the outside boundaries of the Temporary Easement and Easement Area (e.g. 120 feet apart) then tie -off and cut the fence adjacent to each H-brace. The Grantee shall then set temporary T-posts and string barbed wire along the 120 foot opening and install a temporary barbed wire gate or gates, as needed. At the time of construction through the affected area, the Grantee will remove the temporary T-posts so as to permit construction activities. At night, Grantee will install temporary fencing. Upon completion of the subject Pipeline section, Grantee will install interior H-braces and a permanent 14 foot gate(s). Grantee will then install permanent T-posts and barbed wire to connect the H- braces. Fences, gates, gate posts and corners installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made apart hereof and shall be installed with professional care and according to standard industry practices. All gates installed by Grantee shall be made of painted steel pipe. Except during construction as described above, all fence gates on the exterior of Grantor's property shall be closed and locked at all times, unless Grantor in its sole discretion consents to temporary cattle guards or other arrangements. All gates on the interior of Grantor's property shall be left as found. All cattle guards on the exterior of Grantor's property shall be closed and locked at night unless otherwise requested by Grantor. After construction, Grantee shall put a lock on all gates and Grantor may install its own lock on such gates; provided, however, that at all times Grantor and Grantee shall have full and complete access to the Easement Area. (h) Debris Removal. Grantee covenants and agrees that at Grantee's sole cost and expense any and all debris materials of any kind arising in connection with the construction, installation, operation, inspection maintenance, replacement, repair and removal of the Pipeline System, including trash, trees, timber, wood, bushes, shrubs and brush, and other debris materials (collectively, "debris"), shall be removed by Grantee from Grantor's property and disposed of properly so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Further, all rocks and rubble arising in connection with the construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline System will be removed from Grantor's property so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Notwithstanding the foregoing, Grantee and Grantor by mutual agreement may determine that (i) Grantee may shred or mulch trees, timber, wood, bushes, shrubs and brush and scatter such debris over Grantor's property, (ii) Grantee may burn trees; timber, wood, bushes, shrubs and brush, (iii) Grantee may store or scatter rocks and rubble at locations designated by Grantor, or (iv) any other reasonable method to dispose of trees, timber, wood, bushes, shrubs, brush, rocks and rubble. If any trees, timber, wood, bushes, shrubs and brush are burned on site, the Grantee shall maintain constant watch over burn piles with adequate firefighting equipment on site. Grantee further agrees that neither Grantee nor its employees, contractors, agents nor representatives will burn any trees, timber, wood, bushes, shrubs or brush cleared from the Easement Area or the Temporary Easement Area during burn bans designated by county officials. W Temporary Crossings. During construction of the Pipeline System, crossovers shall be installed by the Grantee over the Trench to provide access for Grantor (and Grantor's personnel, equipment and livestock) over the Trench to and from Grantor's adjacent property (i) over all existing paved or unpaved roads, (ii) for livestock (at no less than 500 foot intervals), and (iii) at such other locations as are reasonably designated by Grantor. Further, Grantee may, at Grantee's option, construct temporary fencing near any open hole or trench. 0) Reseeding. If any of the Easement Area or Temporary Easement Area consists of grassland, Grantee shall, using the recommended procedure (either via drill or broadcast), plant a native (e.g. native to the local area) seed mix of grass and forbs selected by Grantor but subject to reasonable availability. W Existing Terraces, Damage to Adiacent Proberiy. (i) Terraces. Existing terraces in the Easement Area and Temporary Easement Area will be replaced upon the backfill of the trench excavated in connection with the construction of the Pipeline System. In the event that the breach of any existing terrace results in any damage to Grantor's adjacent property or the breach of any down grade terraces (whether or not within the Easement Area or the Temporary Easement Area), Grantee shall repair any such damage and return the surface of affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (ii) Damage to Adjacent Property. In the event that the activities of Grantee (or any of its agents, employees, contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles) within the Easement Area or Temporary Easement Area result in any damage or erosion to Grantor's property located outside of the Easement Area or Temporary Easement Area, Grantee shall repair any such damage or erosion and return the surface of the affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (1) Diversions,• Terraces; Stream Beds. Grantee shall install water diversions and terraces where necessary or appropriate in order to divert water away from excavated areas, to prevent erosion and to permit the natural flow of water that existed prior to construction of the Pipeline. Further, where the Easement Area crosses any wet or seasonal stream beds, all Permitted Uses shall be conducted in a recognized manner to protect said stream beds and to prevent erosion (m) Bla- sting. Prior to blasting within the Easement Area, Grantee will notify Grantor. However, no blasting will be permitted within five hundred feet (500') of any existing buildings, pipelines or wells; provided, however, that Grantor shall provide written disclosure of the location of any such improvements that are located underground before such blasting. (n) Trail Road. The pipeline trail road shall not exceed twelve feet (12') in width. The trail road shall be constructed, repaired and maintained in a manner consistent with Grantee's needs and purposes; provided, however, such trail road shall include culverts and water diversions where appropriate to prevent washouts and erosion. Grantee shall level or fill all ruts and washouts and otherwise maintain the trail road on a reasonable basis. Grantor shall have use of such road within Grantor's property so long as Grantor's use does not unreasonably interfere with Grantee's use of. the Easement Area and Temporary Easement Area. After completion of the construction of the Pipeline System and except in cases of emergencies, in order to avoid ruts and washouts, Grantee and Grantor shall use reasonable efforts to avoid the use of the trail road when wet. (o) Necessary Temporary Use. Grantee shall have the right to use Grantor's property located immediately adjacent to the Easement Area and Temporary Easement Area for the following: W On rangeland, detouring around natural impassable impediments within the Easement Area or Temporary Easement Area such as canyons, large boulders or large trees; or (ii) the repair and removal of equipment or vehicles stranded within the Easement Area or Temporary Easement Area, but only to the extent is there not sufficient area within the Easement Area and Temporary Easement Area to permit such repair and removal. Except as provided in this Paragraph 4(o), Grantee (and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them) shall not at any time go upon the property of Grantor outside of the Easement Area and Temporary Easement Area. To the extent that any such incursion upon the lands of Grantor adjacent to the Easement Area and Temporary Easement Area results in any damage to such lands, Grantee shall be liable for such damage and in any event covenants and agrees that the affected areas shall be returned to the condition that is substantially similar to, or better than, adjacent undisturbed areas. (p) Staking of Easement. Prior to commencement of construction of the Pipeline System, Grantee shall stake the exterior boundaries of each side of the combined Easement Area and Temporary Easement Area (e.g. the parallel lines, 120 feet apart, that mark the outside boundaries of the combined 60 foot Easement Area and 60 foot Temporary Easement Area). Such boundary shall be staked with clearly visible, above ground markers so that all parties can easily view the boundary of the easements. Such markers shall be maintained until completion of construction of the Pipeline System. (q) Tree Grubbing. Upon commencement of work on the construction of the Pipeline System (and prior to trenching), Grantee shall grub (using an excavator modified to grub mesquite) all mesquite within the Easement Area and shall also grub any mesquite that has been destroyed, damaged, bladed, or cut within the Temporary Easement Area. At its option Grantee may grub the entire Temporary Easement Area. All debris arising as a result of grubbing activities will be disposed of in accordance with ParagrWh 4W above. Grantor acknowledges that Grantee is not liable for any re -growth of vegetation after any tree grubbing identified in this Paragraph 4 (q) or after any double ditching as identified in Paragraph 4 (b) and that re -growth of vegetation will occur over time. 5. Cure Period. In the event that Grantee is in violation of any of the terms of this Agreement, Grantor shall give written notice of, and an opportunity to cure such violation to Grantee. Grantee covenants and agrees within thirty (30) days of receipt of such notice to commence to cure, and thereafter diligently and without unreasonable delay pursue to cure, such violation; provided, however, that the cure of any subsidence or erosion will be completed within one hundred and twenty (120) days after receipt of such notice to commence to cure. 6. Record Drawings To Be Provided to Grantor. Upon completion of the construction of the Pipeline System, Grantee shall, at Grantee's sole cost, provide to Grantor record drawings showing the location within the Easement Area of the Pipeline and each item of Pipeline Equipment. 7. Abandonment of Easement. Grantee may abandon the Pipeline System solely by an ordinance adopted by the City Council of The City of Lubbock, Texas (or any successor governing body of The City of Lubbock Texas) that authorizes the abandonment of the Pipeline System. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Easement Area is located. If Grantee should abandon the Pipeline System as aforesaid, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns, and title to the Pipeline System located within the Easement Area shall revert to Grantor, its successors and assigns and Grantor may, at its option, remove, dispose of and/or sell any pipe or Pipeline Equipment within the Easement Area. S. Easement Term. The "Easement Term" is hereby defined as the period of time beginning with the Effective Date (hereinafter defined) and continuing until such time that the Pipeline System is abandoned by Grantee as provided in Parag oh 7 above. 9. Covenant to Maintain Pipeline. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, exercise due care and diligence in the use of the rights and privileges herein granted and keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement Area in good order, condition and repair and free of all debris following any work related to Permitted Uses on the Pipeline System. 10. Permits. Grantee shall be responsible for obtaining all permits necessary for Permitted Uses within the Easement Area and the Temporary Easement Area. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality relating to the Pipeline System and this Agreement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 11. Additional Uses. Subject to the limitations set forth in this paragraph, the Easement is non-exclusive and Grantor shall at all times have the right to (i) use and enjoy the Easement Area for any purpose not specifically prohibited herein; (ii) grant easements and rights of way over, under, upon, across and within the Easement Area to such persons as Grantor deems proper; (iii) construct and maintain improvements upon the Easement Area; and (iv) construct and maintain irrigation systems (including drip and overheard irrigation systems) and components and water distribution lines to cultivate and service Grantor's property (including the Easement Area), provided, however, (A) no buildings. or reservoirs may be constructed upon the Easement Area, (B) improvements (other than drip irrigation lines and overhead irrigation equipment) may not parallel the Pipeline within the Easement Area, (C) all power lines, pipelines (other than drip irrigation lines and overhead irrigation systems), and telephone and other telecommunication lines must cross the Easement Area at no less than a 45' (forty-five degree) angle, (D) underground power lines and any metallic pipelines (excluding irrigation water lines and water distribution lines used to service Grantor's property) must have a minimum separation of two feet (2') from the Pipeline and must meet industry standards in order not to adversely affect or damage the Pipeline, and (E) fences constructed by Grantor within the Easement Area must have gates installed so that Grantee at all times has access over and across the Easement Area. In the event that Grantor determines to construct (or grant the right to any third party to construct) improvements within the Easement Area that are not addressed above, Grantor shall provide not less than thirty (30) days prior written notice to Grantee during which time Grantee may have the proposed improvements analyzed by its outside engineers. If during such thirty (30) day period Grantee provides to Grantor a detailed analysis of why the proposed improvements will adversely affect the Pipeline or Pipeline System, Grantor shall not construct such improvements until such time as Grantor and Grantee's engineers agree upon a methodology for the construction of such improvements that will not adversely affect the Pipeline, such agreement not to be unreasonably withheld by either Grantor or Grantee. Grantee and Grantor will at all times use their good faith efforts to accommodate the needs and activities of one another. Grantee covenants and agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not unreasonably interfere with or endanger the operations or integrity of the Pipeline System. Grantee acknowledges and agrees that if the Easement Area is subject to one or more oil and gas leases in existence as of the Effective Date of this Easement, or if Grantor does not own the minerals under the Easement Area, Grantor does not have control over and is not responsible for, or liable for, compliance (or non-compliance) with this Paragraph 11 by any oil and gas lessee or mineral owner(s). 12. Compensation for Grant of Easement. As complete consideration for the execution and delivery of this Agreement by Grantor, contemporaneously with the execution hereof by Grantor the Grantee agrees to pay to Grantor (i) the sum of Eighty - Five Dollars ($85.00) per rod for a total of Four Thousand Fifty -Three and 65I100ths Dollars ($4,053.65) for the grant of the Easement and the grant of the Temporary Easement, (ii) the sum of ($ ) for damage to, or the replacement of, machinery and equipment (including irrigation systems and equipment) and other personal property specified on Exhibit E. and (iii) the sum of ($� for damage to crops. in the event that as a result of the time of year in which construction of the Pipeline will occur Grantor (or its lessee) will suffer crop losses for two consecutive years, prior to commencement of construction (or, if construction has already commenced, but was delayed or extended, prior to continuation of construction) Grantee shall pay to Grantor an additional sum for crop losses in the amount specified in item (iii) above. The foregoing consideration constitutes payment to Grantor and Grantor's successors, assigns, or agricultural lessees or tenants, if any, for the grant of the Easement and Temporary Easement and for damage to the specified equipment, machinery and crops resulting from the initial construction and installation of the Pipeline System. The market value of any damaged crop shall be calculated using the following formula: Affected Acres X Yield Per Acre X Unit Price for the affected crop = damages to be paid, where (i) the amount of the affected acreage will be reasonably determined by the Federal Farm Service Agency in the county where the premises is located, or if the Federal Farm Service Agency fails or refuses to make such calculation, as reasonably determined by Grantor, (ii) yield per acre will be the average of the previous three (3) years' yields according to the Grantor's (or Grantor's lessee's) records for the affected parcel, but if the Grantor (or Grantor's lessee) does not have yield records available, the parties will use Federal Farm Service Agency records or other commonly used yield information available for the area, and (iii) unit price will be based upon the average of the last previous March Vt and September 1" prices for the affected crop as set by the Chicago Board of Trade, New York Cotton Exchange, Kansas City Board of Trade, or other similar exchange, as appropriate for the affected crop. Notwithstanding the foregoing, the Parties hereto agree that the unit price for damages to cotton crops shall be $0.52 per pound. 13. Title. (a) Grantee acknowledges that at its sole cost and expense it has researched the title to the Easement Area and the Temporary Easement Area and, where it deemed it necessary, obtained abstracts or certificates of title or title insurance to such property. Grantor represents that to the best of its knowledge set forth on Exhibit F is a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject property, and (iii) all unrecorded easements granted by Grantor which encumber the subject property. Grantor will provide Grantee, at least thirty (30) days prior to the execution of this Agreement, with all documents identified and to be attached hereto as Exhibit F. The grant of the Easement herein contained is subject to (A) all items disclosed on Exhibit F, (B) all items that would be disclosed on an accurate commitment for title insurance covering the subject property (which Grantor understands that Grantee has received and reviewed), (C) above ground power lines, (D) public roads as reflected on the official county (or state) road map(s), (E) all valid and subsisting encumbrances, easements, agricultural leases, wind energy leases, and rights -of -way of record in the county where the subject property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases existing on the Effective Date. It shall be the obligation of Grantee to procure and have recorded without cost to Grantor all assurances of title and affidavits which Grantee determines are necessary and proper to show in Grantor title sufficient to grant this Easement. The expense of recording this Agreement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, at no expense to Grantor, to obtain any curative documents needed to the extent such cure would not affect Grantor's title. (b) If Grantee or Grantor determines that the easement intended to be conveyed to Grantee and described herein, or any part thereof or undivided interest therein, should be acquired by judicial procedure, either to procure good title or for any other reason, then Grantor and Grantee hereby stipulate that (i) an agreement, in the same form as this Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Grantor for the easement obtained by Grantee by judicial procedure, shall be the same as the consideration stated in Paragraph 12, but should the Grantor own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Grantee and described herein, such award shall not exceed that portion of the consideration stated in Paragra h_ 12 which the value of such lesser interest of Grantee bears to the value of the entire Easement Area or Temporary Easement Area described herein. 14. Recreation; Firearms; Hunting; Fishing; Dogs, Artifacts. At no time shall Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them (i) enter upon the Easement Area or Temporary Easement Area for sightseeing or other recreational purposes, all access being limited to Permitted Uses, (ii) kill or remove' from the Easement Area any plants (other than in connection with Permitted Uses) or any reptiles, fish, birds or animals or any artifacts (including arrowheads) or other archeological items of any kind, (iii) bring upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor) any firearm (whether rifle, pistol, shotgun), bow of any type, arrow, trap, snare, net, fishing rod, or any other means whatsoever of taking wild game, fish or fowl, (iv) hunt, fish or trap upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), (v) bring dogs upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor), or (vi) subject to the provisions of Paragraph 4(o) above, enter upon any part of the land of Grantor outside of the Easement Area or the Temporary Easement Area, or (vii) take any photographs in the Easement Area except in connection with Permitted Uses and for no other purposes, it being understood and agreed that all commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. Any person in violation of the foregoing shall be a trespasser and Grantee covenants and agrees not to interfere with the prosecution of any person accused of the foregoing and to prohibit any such person from thereafter going upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). Grantee consents and agrees that Grantor shall have the right at any time to inspect the interior of any vehicle brought upon the Easement Area or the Temporary Easement Area (or the surrounding land of Grantor). The Grantee shall include a covenant similar to the above in all contracts with any contractors having access to the Easement Area or the Temporary Easement Area. 15. Gender; Plural. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 16. Indemni1y. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor and Grantor's family, officers, agents, servants, employees, representatives, contractors, independent contractors, and subcontractors (each, an "Indemnitee") harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs; collectively, the "Covered Lasses"), that may be suffered or incurred by an Indemnitee, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement Area or the Temporary Easement Area after the Effective Date to the extent arising in whole or in part out of or in connection with any negligence or willful misconduct of Grantee or any of its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, suppliers or invitees and/or their equipment or vehicles. When any losses, claims, demands, or causes of action of the types described above are the result of joint or concurrent negligence or willful misconduct of Grantee and Grantor or their respective employees, contractors or agents, it is understood and agreed that Grantee's indemnity obligations shall be effective and shall cover all such losses, claims, demands, or causes of action notwithstanding any negligence on the part of Grantor or Grantor's, employees, contractors (including independent contractors and subcontractors), agents or invitees. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the Easement and/or any rights granted hereunder, and Grantor shall be solely limited to the remedy of money damages for such claims. 17. Indemnity Regarding Pollution. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold each Indemnitee harmless from and against all Covered Losses of whatsoever nature arising from pollution or contamination emanating from the Pipeline System (the "Grantee pollution liabilities"); provided, however, that "Grantee pollution liabilities" shall exclude any pollution liabilities arising from any condition existing before the effective date of this Agreement. Grantor hereby releases Grantee from and against all Covered Losses of whatsoever nature arising from (i) pollution emanating from the property and equipment of Grantor, (ii) any condition existing before the Effective Date, (iii) pollution or contamination migrating or having migrated on, under, or to the Easement Area from any other location, and (v) the possession, occupation or use by Grantor (or any third party under rights granted by Grantor) of Grantor's property. 18. Insurance. During the construction and installation of the Pipeline System, Grantee shall maintain, or cause its primary contractor to maintain, comprehensive generally liability insurance in the amount of $1,000,000 and umbrella liability insurance in the amount of $2,000,000, covering "all risks" associated with the Permitted Uses of the Pipeline during construction and installation of the Pipeline System. Upon request Grantee shall provide a copy of such policies, and all renewals and replacements thereof, to Grantor. 19. Easement Only. It is understood and agreed that this Agreement is not a conveyance of the fee estate for any of the Easement Area, but is only an easement through, -over, under, upon, across and within the Easement Area and the Temporary Easement Area (for the term thereof). 20. Binding Agreement Assignment. The provisions of this Agreement shall be binding upon and inure to the benefit of Grantor and Grantee and their respective successors, heirs and assigns; provided, however, Grantee shall not assign this Easement without the prior written consent of Grantor which consent shall not be unreasonably withheld. 21. Final Agreement. This Easement and the Exhibits attached hereto contain the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. Each Exhibit attached hereto shall be a part of, and incorporated into, this Agreement. 22. Unenforceable Provisions. 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 unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 23. Notices. Any notices or demands provided to be given herein by the parties shall be in writing and sent by facsimile or email (if a facsimile or email address is provided below) or mailed by certified mail or hand delivered to the other parry at the address set forth below. In addition, telephone notices described in Paragraph 26 below shall be permitted to the telephone numbers set forth below. Notice of any breach of this Agreement must be in writing and mailed by certified mail or hand delivered to the other party at the address set forth: below. Each party may rely on the addresses and contact information set forth below until changed in accordance with this Agreement. If Grantee determines that Grantor has conveyed the subject property without providing contact information for the new owner, Grantee may rely on the records of the local appraisal district. Either party may change its contact information for notices to it by written notice to the other party. Any notice or demand shall be deemed to have been received the earlier of (i) three (3) days after the date of mailing, (ii) the date of actual delivery as shown by the. addressee's certification or registry receipt. or (iii) the date of hand delivery. Grantee shall provide and maintain a person for emergency contact who is available at the below telephone (or such different phone number as set forth in notice from Grantee to Grantor). Grantee: The City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Facsimile: (806)775-2051 Email: MReed@mail.ci.lubbock.tx.us Contact Person: Marsha Reed Emergency contact: Emergency phone number: Grantor: E. B. Murphy 3200 Maxwell Midland, TX 79705-4824 Facsimile: Email: Contact Person: Phone number: (� Cell number: �) 24. Access Notice. Telephonic notices are acceptable for notice of emergencies and for inspections of the Easement Area, however, with regard to notices of inspection if the contact person cannot be reached by telephone, written notice must be provided. Except in the event of emergencies, after completion of construction of the Pipeline the Grantee shall provide at least 24 hour prior telephonic notice to Grantor prior to accessing the Easement Area. Voice mail messages shall not constitute notice hereunder. 25. Notice to Future Users. Grantor and Grantee agree and hereby give notice to any oil, gas, mineral, water, wind or energy lessee or grantee acquiring (after the Effective Date) any interest overlying or underlying the Easement Area, that Grantee will be operating the Pipeline System and conducting Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted in the vicinity of the Easement Area which would unreasonably interfere with the operations or integrity of the Pipeline System. Further, to the extent Grantor owns the oil, gas and other minerals under the Easement Area, Grantor hereby waives the right to use the surface of the Easement .Area for the drilling of any oil or gas wells subject, however, to the rights of any lessee under any oil, gas and other mineral lease in existence as of the Effective Date. 26. MineralWater Reservation. Grantor reserves and excepts from this Easement and retains for Grantor and Grantor's successors and/or assigns, all rights to explore for, to drill and produce wind, water, oil, gas and other minerals of every kind and description underlying or situated beneath the Easement Area by any means whatsoever, including wells or mines directionally drilled from surface locations on nearby lands so long as no surface operations are performed on the Easement Area and so long as such operations do not interfere with or endanger the operations or integrity of the Pipeline System. 27. References to Grantee. Where appropriate in this Agreement, references to Grantee in connection with the performance of Permitted Uses shall include Grantee and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 28. Limitation on Damages. Neither party shall be liable to the other party or any of such party's affiliates in any action or claim including without limitation, any action or claim for indemnity, for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 29. Force Majeure. When a time period is specified herein for the performance by either party of its obligations hereunder (except for the payment of money), such period shall be extended by the period that such parry's performance is prevented by reason of windstorm, hurricane, tornado, flood, earthquake or other acts of God or by war, riot, insurrection or workers' strike or by the unavailability of materials (each, an act of "Force Majeure"), however, in order for either party to take advantage of the extension provided above for an act of Force Majeure, such party must give written notice to the other party within five (5) days of the commencement thereof and must immediately commence performance of its obligations when the effect of the Force Majeure event has subsided. TO HAVE AND TO HOLD said Easement, together with all and singular, the rights and appurtenances thereto in anywise belonging unto Grantee, its successors and assigns during the Easement Term, subject to the terms and conditions hereof. The effective date of this Agreement (the "Effective Date") shall be the date this Agreement is last signed by Grantor or Grantee. [ Signatures of the Parties on Next Page ] EXECUTED this day of , 2010 (the "Effective Date"). GRANTOR: E.B. MURPHY, as his sole and separate property GRANTEE: The City of Lubbock TOM MARTIN, Mayor [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Terry Grantham Attorney for the City of Lubbock Zach Brady Attorney for City of Lubbock John Cox Attorney for Landowner STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on , 2010, by E.B. MURPHY. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on MARTIN, Mayor. 2010, by TOM Notary Public, State of Printed Name of Notary My commission expires: Exhibits: A - Metes and Bounds Description of Easement Area B - Pipeline Right -Of -Way Safety Guidelines C - Location of Surface Pipeline Equipment D - Gate Construction Detail and Specifications E - Equipment Covered by Damage Payment under Paragraph 12(ii) F - Unrecorded Leases and Agreements, Unrecorded Deeds of Trust and Unrecorded Easements Exhibit A Survey and Metes and Bounds Description of the Easement Area EXHIBIT 'A' Page I of 2 .J 260 726 N.. 8 7 0.58' 11 ". W 2663.6- ...................... .. ..... ........ ... ................ ..... \�\FD.CONC. MON. 60'COUNTY ROAD ---A 4\ - C'4: *: g Jack (Ulke) Grigg -Q5 . 0 WAI 9J7 P9 I81 m� 12-306.LLC Vo/. 290 Pg. 125 CIO, 04 f 4-7.69 Rods - Permanent Esm Qj oi o [0.08 Ac. - Permanent - IM9 t- —0 r-: to zo: CP 209.3 AG. cam°to: 0: 5>-Gf I ON !1216 crilikul Lit y Const. Esmt. 12� Ac. 60'Permai Easement cl FD. CONIC. ---NN 67* 59'15--.-W 2MON. 753.91' Robert Lee Mock \—P 0 B . Vol. 223 Pg. 113 y71�4610464777.91.6 X:9 Set 1/2" Rod W/Cap A legal description of even survey dote herewith accompanies this survey plot. Sury on the groun h M , 2009 .! C Registered Puessionall-ondSurveyor, Date:7— 20—OQ AJINorthings and Eostings shown are pr . "A.4t'tfir hi K pt and may be converted to Texas State Pldc North Central Zone, NAD83 by dividing by 6 adjustment factor of 1.0002396 Alldistonces shown ore surface distances. Bearings shown ore grid bearings based on the Texas State Plane Coordinate System, North Central Zone, NAD83 Datum. This survey and ollinformotion hereon is for the exclusive use of CITY OF LUBBOCK and shollnoi be copied or used except for the purpose for which it is expressly furnished. this drowiing and ollcopies (partiolor 1\1 complete) shollbe returned to the owner upon demond. &AKZA GOUNfiY)fEXA6 PD. CONC. MON. 4.6, S 870 58'59" E N W E S CENTERLINE WEASEMENT I ORG. & DIST. I CURVE DATA 21 N 65*10'36" w 735.21- JR= 575.9-0'L- 51. 'DELTA- 5*08'43" 1 ISCALE:11- 600' (REVISION: 1PLAT- DATE: 4-24-0 ICLIENT: PARKI-111 I - SMITH P. r.or)prp - FITY nC' I I q F Mft NZ-10 lot t *S %K06.1K. 3330 70th ST.. SWTE 202 - LU=r, 7X. 79413 (US) M-OD20 - FAX (ON) 792-1646 EXHIBIT "A" Page 2 of 2 PARCEL NO. 30 SACK (MIKE) GRIGG Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located"in a 209.3 acre tract of land out of Section 1248, P.B. Hail Survey, Garza County, Texas and said pipeline centerline being described as follows: Beginning at a 1/2" iron rod with cap, set on the South line of the Northwest Quarter of Section 1248, for the beginning of this description, from whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter corner of said Section 1248, bears North 87059'15" West, a distance of 753.91, said point of beginning having a project coordinate of Y = 7174076.91 and X = 1046477.69; Thence along the arc of a curve to the left and being along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 51.64 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 5008'43"; Thence North 65010'36" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 735.21 feet to a 1/2" iron rod with cap, set on the East right of way line of a sixty -foot county road, for the end of this description, whence a 8"x8" concrete monument found for the Southwest corner of the Northwest Quarter of Section 1248, bears North 87059,151, West, a distance of 30.00 feet and South 1055'51" West, a distance of 307.16 feet. Containing 47.69 rods. (1.08 acres) The above described sixty foot (601 wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 1.26 acres of land. The said temporary construction easement shall expire as noted In the easement agreement. Notes: 1. A survey plat of even survey date herewith accompanies this legal description. 2. Surveyed on the ground March -May, 2009. 3. Bearings shown are grid bearings based on the Texas State Plane Coordinate System, Texas North . Central Zone, Nad83 Datum. 4. All distance shown are surface distances. S. Surface adjustment factor for entire project is 1.0002396 egistered ofesslonal Land Surveyor Date: _�.7n -��i * J HIGH-TECH LAND AND GPS SUR VEYORS, INC. 3330 70th St., Suite 202 • Lubbock, Texas 79413 (806) 788-0020 • Fax (806) 792-1646 Exhibit B Pipeline Safety Guidelines So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the Easement, as well as applicable laws and regulations: 1. Except during construction or maintenance of the Pipeline, driving within the Easement Area is limited to use of currently established roadways, if any, and any trail roads constructed by Grantee on non -cultivated lands. 2. Smoking outside vehicles within the Easement Area or lands or premises is prohibited. 3. No firearms, drugs, or alcohol are permitted in the Easement Area and no photographs may be taken in the Easement Area except in connection with Permitted Uses and for no other purposes. All commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. 4. Pedestrians and non -motorized traffic have right-of-way over motorized traffic 5. The maximum speed limit within the Easement Area is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. b. Use horn for safety at blind corners and when passing. 7_ Use established hand signals or turn indicators 8 Observe all signs including pipeline markers. 9. Come to complete stop on entering or leaving gates within the Easement Area. 10. All persons entering the Easement Area must be fully clothed. 11. No debris or trash shall be discarded on the Easement Area or the Temporary Easement Area. Exhibit C Locations of Surface Pipeline Equipment No Text Exhibit D Gate Construction Detail and Specifications 5'•x9•-6" SCH 40 PIPE W/%s" POP PLATE N 3" COLLAR 2" SCH. 40 PIPE 1�11s` -�iiM� ■1 ■A .. y��■■�� ■ .,.■ noon MAN �-,-.,�■■1■ ■loon■■ ■■:■Isola "'�■�■nn ■QAL/I,v. is +r >^ 5CH, ! 2" SCH, 40 PIPE 10 PIPE 1 CONCRETE -6" SCH. . W/y4" ATE -•-'/ PAIL "A" IEET 144" GUSSET PLATE WELD ALL AROUND (TYPICAL) NOTE: ALL CONNECTIONS ARE WELDED ALL AROUND. GATE DETAIL SCALE: 1 /2"=1'-0" CONCRETE TYPICAL. GATE SUPPORT DETAIL SCALE: 1 /2"=1'-O" 18" DIA. HOLE (TYP.) OTEb FOR FENCES AND G_iT - I. GATES TO BE INSTALLED AT ALL FENCE CROSSINGS, UNLESS OTHERWISE DIRECTED BY THE OWNER. 2. ALL STEEL GATES, POSTS, CROSS $RACES, ETC., SHALL BE PAINTED BLUE, 3. PROVIDE 1" LINK CHAIN AROUND GATE AND WELD TO SUPPORT POST. PROVIDE ONE HEAVY DUTY LOCK PER GATE KEYED PER OWNER'S LOCKS. 4. CONTRACTOR SHALL VERIFY EXACT LOCATION OF ALL GATES WITH OWNER PRIOR TO CONSTRUCTION. 5 BARBED SSN�NCOAAFEWMMUM TRADFEE RSGALVANIZED XTIINGNCE, WHICHEVER IS GREATER. WHERE EXISTING FENCE HAS PANEL FABRIC, INSTALL 39" PANEL FABRIC WITH 3 STRAND BARBED WIRE, 47" PANEL FABRIC WITH 1 STRAND BARBED WIRE MINIMUM OR AS PER EXISTING, WHICHEVER IS GREATER. S. CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONNECT TO EXISTING FENCE. PRIOR TO CUTTING EXISTING FENCE. 7, DIMENSIONS SHOWN ARE FOR FENCES CROSSING AT PERPENDICULAR ANGLE TO PIPELINE. WHERE FENCE CROSSES PIPELINE AT SKEWED ANGLE, DIMENSIONS SHALL BE INCREASED ACCORDINGLY. SWING SECTION i M 4"x4" MESH WELD TO GATE FRAME 1" LONG ON 6" C/C Exhibit E Equipment Covered by Damage Payment under Paragraph 12(ii) Exhibit F Unrecorded Leases, Unrecorded Agreements, Unrecorded Deeds of Trust, and Unrecorded Easements No Text MEMORANDUM OF LEASE STATE OF TEXAS COUNTY OF GARZA Resolution No. 2010-RO163 This MEMORANDUM OF LEASE ("Memorandum") is made and executed to be effective as of February 27, 2008 by and among COLLINS FARM RENTAL (collectively, and together with their successors and assigns hereunder, "Owner"), and FREMANTLE ENERGY LLC, a Delaware limited liability company (together with its successors and assigns hereunder, "Tenant"). RECITALS: A. Owner is the owner of approximately 196.6 acres of land (the "Land") situated in C Garza County, Texas, described in Schedule I attached to and made a part of this Memorandum, together with all and singular (i) the wind and air rights on or pertaining to the Land (the "Wind Rights") and (ii) all other rights, interests, privileges and appurtenances pertaining to the Land, W including any easements and other rights as may be necessary for ingress, egress and maintenance of the Land and any and all right, title and interest of Owner in and to adjacent roads, streets, alleys or rights -of -way (such items in clause (ii) collectively, the "Other Appurtenances"). The Land, Wind Rights and Other Appurtenances are collectively referred to herein as the "Leased Property". B. On February 27, 2008 (the "Effective Date"), Owner and Tenant entered into a Lease Agreement (the "Lease") pursuant to which Owner leased to Tenant and Tenant leased from Owner the Leased Property. C. Owner and Tenant desire to execute this Memorandum to provide constructive notice of Tenant's rights under the Lease to all third parties. NOW, THEREFORE, for and in consideration of the mutual covenants and benefits herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Tenant hereby agree as follows: Section 1. Purpose of Memorandum. The purpose of this Memorandum is to give record notice of the Lease, and of the rights created thereby, all of which are hereby confirmed. The parties, however, advise all parties acquiring interests subsequent to the date of this Memorandum, that the Lease and any and all documents executed in connection therewith, may be amended from and after the date hereof with the consent of the parties thereto, and without amendment of this Memorandum. Without limiting the generality of the foregoing, the Lease, as the same may be amended from time to time without amendment of this Memorandum, shall be binding upon all parties taking interests in the Land subsequent to the date of recordation of this Memorandum. As such, all such parties are hereby on notice that they should inquire as to the terms of the Lease as in effect from time to time, and that third parties may rely on this Page I of 6 BOOK 2 9$ PAGE 129 Austin 905479v.I Memorandum solely for record notice of the existence of the Lease and certain of the provisions thereof as of the date of this Memorandum, and not with respect to the specifics of the terms thereof as the same may be in effect from time to time. Section 2. Term of Lease. After the Development Period, the Primary Term shall be for thirty (30) years from the Production Commencement Date, unless extended or sooner terminated as provided in the Lease. Tenant may, at its option extend the Primary Term for two (2) successive periods of ten (10) years each by written notice to Owner at least ninety (90) days prior to the last day of the Primary Term (as the same may have been extended). Section 3. Purpose of Lease. The Lease is for wind energy conversion to electricity on the Leased Property and for the collection and transmission of electric power, by developing and operating wind powered electricity generating projects on the Leased Property and other property, and for related activities and such Lease includes, without limitation, the following rights and privileges for Tenant: (a) the right to develop, erect, construct, install, replace, relocate, repair, remove, maintain, operate and use from time to time, wind turbines (and the foundations, C footings and other appliances and fixtures for use with such wind turbines), underground and above -ground electrical transmission and communications lines related to the Q operation of wind turbines, electric transformers, energy storage facilities, telecommunications equipment, roads, meteorological towers and wind measurement co equipment, control buildings, maintenance yards, and related facilities and equipment necessary and/or convenient for the operation and maintenance of one or more wind energy projects on the Leased Property and/or other property, in accordance with the Lease; (b) the right to capture and to convert all of the wind resources of the Land; (c) the right to develop, erect, construct, install, replace, relocate, remove, maintain, operate and use the following from time to time in connection with wind energy projects, whether located on the Leased Property or elsewhere, (i) a line or lines of poles or towers, together with such wires and cables as from time to time are suspended therefrom, and/or underground wires and cables, for the transmission of electrical energy and/or for communication purposes, and all necessary and proper anchor, support structures, foundations, footings, crossarms and other appliances and fixtures for use in connection with said towers, wires and cables; (ii) one or more substations or interconnection or switching facilities from which Tenant or others that generate energy may interconnect to a utility transmission system or the transmission system of another purchaser of electrical energy; and (iii) roads associated with the foregoing (such towers, wires, cables, substations, facilities and other enumerated items in clauses (i), (ii) and (iii) are herein collectively called the "Transmission Facilities"); (d) the right in connection with the use of the Leased Property, of pedestrian and vehicular ingress, egress and access over and across the Land by means of roads and lanes thereon if existing, or otherwise by such route or routes as Tenant may construct or improve from time to time; and Page 2 of Boos 2 9 8 PAGE 130 Austin 905479v.1 (e) any and all right of Owner to select, determine, prohibit or control the location of sites for drilling and/or exploration of minerals in, to and under the Land. Section 4. Ownership of Wind Energy Proiects. Under the Lease, Owner covenanted that, except as otherwise provided in the Lease, Owner had no ownership or other interest in any Improvements (as defined below), and that Tenant could remove any or all such Improvements at any time. As used in the Lease, the term "Improvements" means all WTGs (as defined below), Transmission Facilities, structures, equipment, machinery, wire, conduit, fiber, cable, poles, materials and property of every kind and character constructed, installed and/or placed on, above or below the Leased Property by or on behalf of Tenant. "WTG" means any wind turbine generator or wind machine designed for the generation of electrical power from wind power, including without limitation, the associated towers, support structures, guy wires, braces and directly related equipment. Section 5. No Liens. Under the Lease, Owner is not allowed, without the prior written consent of Tenant, to create or permit to be created or to remain, any liens, encumbrances, leases (except for agricultural, ranching and hunting leases), mortgages, deeds of C trust, security interests, licenses or other exceptions with respect to the Leased Property or any Qy part thereof. Any such rights granted without Tenant's consent are void ab initio. Section 6. No Interference; No Third Party Rights. Owner covenanted and agreed under the Lease that Tenant would have the quiet use and enjoyment of the Leased Property in accordance with the terms of the Lease without hindrance or interruption from Owner or any other person or persons. Without limiting the generality of the foregoing, Owner agreed that Owner would not and would cause the other Owner Parties (as defined below) not to construct or install any structure or other improvement that was either within five hundred feet (500') of any WTG or was more than thirty feet (30') in height. Further, Owner agreed that Owner would not, and would cause the other Owner Parties not to, take any action that could (a) interfere with or impair the availability, accessibility, flow, frequency or direction of air and wind over and above the Leased Property, (b) in any way interfere with or impair the transmission of electric, electromagnetic or other forms of energy to or from the Leased Property, or (c) interfere with or impair Tenant's access to the Improvements or to the Leased Property for the purposes specified in the Lease, (d) interfere with any permits required for Tenant's use of the Leased Property or (e) otherwise interfere with Tenant's intended use of the Leased Property. Owner also agreed Owner would not take any action or grant any third party any rights in the Leased Property that could materially interfere with the development, construction, installation, maintenance or operation of any wind energy projects on the Leased Property or that could allow any party other than Tenant to exploit the Wind Rights or that could materially and adversely affect Tenant's use of the Leased Property. Finally, Owner agreed that during the term of the Lease, Owner would not grant any rights to any third party to develop, construct, install or maintain or operate any wind energy projects on or around the Leased Property, including without limitation, construction or upgrading of any Transmission Facilities, without Tenant's prior written consent, which consent shall not be unreasonably withheld. Section 7. Release. Under the Lease, Owner on its own behalf and oti behalf of each of Owner's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors, family members and Austin 905479v.1 Page 3 of 6 800K 9 8 PAGE 131 invitees (collectively, the "Owner Parties") has released and discharged each of Tenant and Tenant's affiliates, successors and assigns and all such parties' stockholders, members, partners, officers, directors, employees, agents, representatives, contractors and invitees (collectively, the "Tenant Parties") from any losses, liabilities, damages, costs, claims, suits and causes of action (including losses or claims for personal injuries or death and property damage and including reasonable attorneys' fees and costs of litigation) (collectively, "Losses") attributable to (a) interference with wind on any property owned in whole or in part by Owner that is adjacent to the Leased Property; and (b) dangers associated with electrical generating facilities, such as audible and electromagnetic fields, electromagnetic noise, electrical interference, radio frequency interference or cell tower interference (collectively, "Interference and Electrical Generating Facility Dangers"), even if such Losses are caused by or allegedly caused by any Tenant Party's sole, joint or concurrent negligence, strict liability or other legal fault. Section 8. Assignment. Subject to certain restrictions in the Lease, the Lease and the rights of any party to the Lease and the Leased Property, wind energy projects, Transmission Facilities and Improvements may be assigned, encumbered or mortgaged, in whole or in part, without the prior written consent of the non -assigning party but no such assignment, encumbrance or mortgage shall operate to enlarge the obligations or diminish the rights of the 0 non -assigning party thereto. Owner and Grantee acknowledge that this Memorandum will continue to be effective with respect to any assignment under the Lease by either party thereto. 04 Section 9. Successors and Assigns. The Lease shall inure to the benefit of, and be binding upon, Owner and Tenant and their respective heirs, transferees, successors and assigns, and all persons claiming under them. Section 10. No Modification of the Lease. This Memorandum does not alter, amend or modify the terms and provisions of the Lease, but is executed solely for the purpose of giving notice of the existence of the Lease and the terms and conditions therein, which Lease is incorporated herein by reference for all purposes to the same extent and with the same effect as if set forth herein in full. Section 11. Governing Law. This Memorandum shall be governed by and construed, interpreted and enforced in accordance with the laws of the state in which the Leased Property is located. Section 12. Counterparts. This Memorandum may be executed by facsimile and in multiple counterparts, no one of which need be executed by all parties hereto, each of which shall constitute an original. Counterparts thus executed shall together constitute one and the same instrument. [Signatures on Following Page] BOOK 2 9 8 PAGE 132 Page 4 of 6 Austin 905479v.I IN WITNESS WHEREOF, Owner and Tenant have caused this Memorandum to be executed and delivered by their duly authorized representatives as of the date first set forth above. "Owner" EB Murphy On behalf of Collins Farm Rental t � MJ g tp On b alf of Collins Farm Rental "Tenant" Fremantle Energy, LLC, a Delaware limited liability company Page 5 of 6 GOOK 298 PAGE 133 Austin 905479v.1 STATE OF TEXAS COUNTY OF &rv2.o, The foregoing instrument was acknowledged before me this �Z� lay of {lar 2008, by EB Murphy, on behalf of Collins Farm Rental. "OR PY�YY�� o&�;'� JUNE MARIE M. GRAY d'-_ r l� ?' = Nota Put _ Nlic, State of Texas to Public in and for the exas ;elf • • `E�+�.� My Commission Expires rY 11110 March 27, 2011 0 zy commission expires: 3 -" 2.7- 2 // STATE OF TEXAS § COUNTY OF &AID § The foregoing instrument was acknowledged before me this 2,7 "day of Q , 2008, by MJ Grigg, on behalf of Collins Farm Rental. 1�o�,,PYPpgf.� JUNE MARIE M. GRAY ?•' ` Notary Public, State of Texas tary Public in and for th of Texas +may My Commission Expires Nl commission expires: — Z o I, March 27, 2011 Y P STATE OF TEXAS § r § COUNTY O _ A-1 40 § The foregoing instrument was ackaowledged before mp,, this 62>' day of `� %> i-L 2008, by �c- the of Fremantle Ener , LLC, a Delaware limited liability company. otary Public in and for the to of Texas My commission expires: cq/ TARA K. Notary Public, State of Tex-, 1'1y Commission [spire,: lurt& 22, 2011 Page 6 of 6 Austin 905479v.1 BOOK 2 9 8 PAGE 134 SCHEDULEI Land THE FOLLOWING REAL PROPERTY LOCATED IN THE COUNTY OF GARZA, STATE OF TEXAS: In all 196.6 acres, more or less, more particularly described in the Warranty Deed recorded in the Garza County records as Vol. 210 Page 51-52, the Garza County tax records, and as shown in Schedule I -Page 2: Garza County Deed Records 196.6 acres of land situated in GARZA COUNTY, TEXAS, more or less out of the North One- half (N/2) of Survey No. 1248, Certificate No. 1/378, B.S.&F. Abstract No. 892, Vol.31, Patent No. 388, Vol. 31, described by metes and bounds in Deed from Mrs. Maggie E. Dial to Roy Collins dated February 9, 1994, recorded in the Deed Records of Garza County, Texas. Garza County Tax Records AB 892 SEC 1248 B&LF 196.6 ACRES BLK 1 PER GRIGGS 5-16-94 BOOK 2 9 8 PAGE 135 Schedule I — Page 1 Austin 905479v.1 0 an OI 189308 GIBS .1691078 GH $, JH '�.• GIBSON. J H `j `�^'�'•��,. "' �,, iv`s,'� 772, -'t • 4 1 ,,$,- c k LOCKINOOD'tirOQ 68, DAVI . A F --+ k 12 R- E><J . �� i L '\` ; •`+ t Nw r - EL&RWAR16 \ ` GIBS J H GIBSON J H OI ON, J H :� *-^,�Y� • a t ;' - {�` 721 1281 - 1262 JOHNSON. SA ✓ ? "'' -- e 735s Y 16 10309 ) / i � �} ��.RC 'tiv�. ✓ t y I', dR R CO G�SON, J H 1896 5 +'a _ o - - GIBSON. ,H - `"` °SHQ(4 S ' 1280 ----- , •JjbJ-R•ISON. SA` � k ..�. t r .. 'DBSE�RRCO •v. 4.1 3: f'�1'yi .+: �.i: ivaw.� ! — HALL. B : -tJ HAJ Ly 169759 ,.... 189288 :. _ I c� ya \ wxx, ,r• ,ABA i,., BSFxu. - i89ii USX D&SE RR fin? 4 GORDON. L P 12a'i �„� ..1248 ,i6 j ��0.1 '�- �- C�. P B � ', �,y ' a I - � e• i - 18 75 168�78 - .., T ,,,`•- 189344 •�, F .1F. t TT RR CO , -."• 1' T189738 I 169m • U - - 169282 . s RR CCD&W ffi{'COIJBW RR Gfk jT - .. TALJUY, P H� H YSr�1 3 ,Ge _ �t t , '. -1239 a •O_ � • Ma \ �4 1 F 1 • Y�S1 i\ Y �1 1 •- - �96`1.7 18 •\ .18994y F , f �3� . 8�{ _ HAYS. J 'fT RR C .166342 r , I 16 40 52 - r TT RR CO_ _ r= 30 ES. J R 4 ;`,. �`., 1253 1256 I TT R- �, , 1256 TALLEY P' - - � .✓ .N� ( - I �d �N d�8 � FREVIA\TLE SCHEDULE I SCALE: Not To Scale COLLINS - APPROX 196.6 ACRES OUT OF FILENAME: CoeNsSchedMep.pol K4 5 SECTION 1248, ABSTRACT 892, BS&F SURVEY DATEBY: B3/2008 is N L R c Y GARZA COUNTY, TX APPBY: ROVEE D: BR Schedule I'j— Page 2 Austin 905479v.I BOOK 2 9 8 PAGE 136 FILED FOR RECORD I� deyllr � ao at L1 y o'clock,. 'vM. JIM PLUMMER COUNTY CLERK. OAR.Z.A COUNTY, TEXAS No Text