HomeMy WebLinkAboutResolution - 2010-R0502 - Property Easement - Piwonka, Sparks, Gregor, Garza, Whitlock - 10/14/2010Resolution No. 2010-R0502
,October 14, 2010
Item No. 5.15
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, an Easement in connection with certain
properties in Lynn County, Texas, owned by Lorraine C. Piwonka, Mary Catherine
Driscoll, Frederick Charles Piwonka, Phyllis Ann Gordon, Norman Louis Piwonka,
Martha Jean Simmons, Brenda Gayle Sparks, Judith Marie Gregor, Marvin Gerrard
Piwonka, Edward Joseph Piwonka, Wanda Ruth Garza, Paula Susan Whitlock, and
Milton Hershall Piwonka, and all related documents. Said Easement is attached hereto
and incorporated in this Resolution as if fully set forth herein and shall be included in the
minutes of the Council.
Passed by the City Council on - October 14, 2010
ATTEST:
TOM ARTIN, MAYOR
City
APPROVED AS TO CONTENT:
Marsha Reed, P.E., C ief Operation Officer
Dave Booher, Right -of -Way Agent
VED AS TO FORM:
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Resolution No. 2010-R0502
STATE OF TEXAS
COUNTY OF LUBBOCK
EASEMENT
KNOW ALL MEN BY THESE PRESENTS, THAT:
.,
Lorraine C. Piw�nka, Individually and as Life Tenant, with a street address of 21101 CR
3330, Slaton, TX 79364, Phyllis Ann Gordon, as Remainderman, with a street address of 8206
Evert Street, San Antonio, TX 78240-2918, Brenda Gayle Sparks, as Remainderman, with a
street address of 2530 Firecrest Dr., Katy, TX 77494, Edward Joseph Piwonka, as
Remainderman, with a street address of 2432 Camelot Court, Quincy, IL 62305-8750, Milton
Hershall Piwonl;.a, as Remainderman, with a street address of 1735 North 8`h Street, Abilene, TX
79603-6001, Tifary Catherine Driscoll, as Remainderman, with a street address of 4104 Seven
Gables, Fort Worth, TX 76133-7523, Norman Louis Piwonka, as Remainderman, with a street
address of 302 Sagebrush Lane, Waxahachie, TX 75165-1516, Judith Marie Gregor, as
Remainderman, with a street address of 4613 38�' Street, Lubbock, TX 79414-2825, Wanda Ruth
Garza, as Remainderman, with a street address of #3 Bennett Circle, Wolfforth, TX 79321-2211,
Frederick Charles Piwonka, as Remainderman, with a street address of 240 CR CC, Slaton, TX
79364-8100, Martha Jean Simmons, as Remainderman, with a street address of 19710 CR 3400
Slaton, TX 79364-7135, Marvin Gerard Piwonka, as Remainderman, with a street address of
2G418 Eagle Nest Falls, Katy, TX 77449-6282, and Paula Susan Whitlock, as Remainderman,
with a street address of 2702 Golden Larch Drive, Katy, TX 77494 (herein collectively referred
to as "Grantors") for a valuable consideration, to it paid by The City of Lubbock, Texas (the
"Grantee") with offices at 1625 13`�' Street, Lubbock, Texas 79401, the receipt and sufficiency of'
which are hereby acknowledged, has granted and does by these presents grant unto Grantee an
easement, servitude and right-of-way through, over, under, upon, and across the land described
in Exhibit "A" (hereinafter called the "Land" ) situated in Lynn County, Texas.
Pipelines and Equipment
Grantors hereby grant to Grantee the Easement to survey, construct, reconstruct, install,
upgrade, operate, inspect, maintain, alter, relocate, replace, repair, and remove within the
boundary of the herein described Easement (hereinafter called "Permitted Uses"), pipelines,
conduits, drain (blow-of fl 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
(hereinafter collectively called the "Pipeline System"), for and/or related to the transportation of
untreated potable water through, under, upon, over, and the Land. Such Easement shall be 60
feet wide, as described in Exhibit "B" as attached hereto (herein referred to as the "Easement" or
Easement Land"). Further, a temporary construction easement is hereby granted parallel and
adjacent to the Easement which shall be an additional 60 feet, as shown on the survey plat
attached hereto as part of Exhibit "B". The temporary Easement shall terminate upon
completion of all construction activities on the herein described Land.
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Terms and Conditions
This Easement is specifically made by Grantors 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; and (c) the right to locate the Pipeline System
through, over, under, upon, across and within the Easement for the purpose of untreated
potable 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"). Grantee agrees to construct the Pipeline System, in compliance
with all Legal Requirements, and with due care for Grantors' agricultural activities on the
Land and Grantors' adjacent property.
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, Grantors, their heirs, legal representatives, successors and assigns. Abandonment
shall be irrebuttably presumed upon the adoption of a formal resolution of Grantee's
governing body that authorizes the abandonment of the Pipeline System.
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 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 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
Lorraine C. Piwonka, et al Pipeline Easement Agreement
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environmental permit(s), if applicable, and notify Grantors 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. Fences and gates installed by Grantee shall meet the specifications described
in, and be installed as specified in, Exhibit "C" attached hereto and made a part hereof.
8. The Pipeline System shall be so located or shall be buried at a depth of at
least sixty (60) inches below the surface of the ground. All ditches dug for such purposes
shall be double cut with subsurface soil first returned into the ditch over the pipeline and
then top soil replaced above the base soil. Any rocks brought to the surface shall be
placed back in the ditch below forty (40) inches from the surface of the ground or
removed from the Land. Grantee shall compact the soils in the pipeline ditch sufficiently
to prevent sinking and settling, restore the contour of the Land to its original condition as
nearly as possible.
9. This grant of Easement shall not preclude the right of Grantors to fully use
and enjoy the Land, except as may be necessary for Grantee's purposes herein provided,
however, (A) no buildings, structures or reservoirs may be constructed upon the
Easement, (B) improvements (other than drip irrigation lines and overhead irrigation
equipment) may not parallel the Pipeline within the Easement Land, (C) all power lines,
metallic pipelines, and telecommunication lines hereafter installed by Grantor must cross
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the Easement at no less than a 45° (forty-five degree) angle, (D) all underground power
lines and any metallic pipelines (excluding irrigation water lines and water distribution
lines used to service Grantors' property) hereafter installed by Grantors must have a
minimum separation of two feet (2') from the water pipeline and shall be installed and
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constructed in accordance with generally accepted engineering practices, and (E) fences
constructed by Grantors that cross the Easement must have gates installed so that Grantee
may have access to and along the Easement at all times.
10. In case of abandonment of said Easement, as provided in Paragraph No. 3
above, the title and interest herein granted shall end, cease, and terminate, and title to the
Easement shall revert to the then owner of the Land.
11. The grant of Easement herein contained is subject to all valid and
subsisting easements, leases including oil, gas and mineral leases and wind energy leases,
and rights-of-way of record affecting the Land.
12. 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. Grantors agree to reasonably cooperate and aid Grantee, if necessary, to obtain
any curative documents needed.
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DocID 149226 v.2
13. 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 Grantors and Grantee hereby stipulate that the
ultimate award to the Grantors for the Easement granted to Grantee and described herein,
shall be the same as the consideration hereinafter stated in Paragraph No. 14.
14. As consideration for the grant of this Easement, Grantee agrees to pay
Grantors a sum equal to Eighty-five Dollars ($85.00) per rod multiplied by the number of
rods, and/or fractions thereof, for the length of the Easement crossing the Land. It is
agreed that should Grantors own an interest in the Easement Land that is less than the
entire fee simple estate, then the consideration to be paid shall be reduced
proportionately.
15. Upon completion of construction, Grantee shall (i) remove all rock,
gravel, caliche, or other materials foreign to the natural condition of the Land that may be
brought to the surface or placed on the Land by Grantee; (ii) level and fill with top soil all
holes, ruts, or other surface disturbances in such a manner as to restore same to the
natural contour of the surrounding property; (iii) clean the area to the end that all objects,
materials, and structures foreign to the natural condition of the Land are removed and
eliminated; (iv) in the event any of surface disturbance on grassland, Grantee shall plant a
seed mix of grass and forbes in the area of such disturbance and re-establish grass cover;
and (v) otherwise restore the surface of any portion of the Land that may be disturbed by
Grantee's activities to its original condition as nearly as reasonably possible. !--�
16. After completion of construction, and except in cases of emergency,r
maintenance or repair, on cultivated land, vehicular ingress, egress and regress shall be
permitted in, but limited to, the use of then -existing roadways and turn rows Grantors }..
have on their property.
17. Grantee, at its sole cost and expense, shall repair or replace in good and
workmanlike manner any underground lines or other improvements of any kind that it
may damage during construction, maintenance, or removal of its pipelines.
18. Grantee agrees that, except as may be reflected in Exhibit "D" attached
hereto, no above ground equipment and/or facilities related to the Pipeline System shall
be installed, constructed, or otherwise located on cultivated ground located within the
Easement. Grantee further agrees any future installation, construction, and location of
such equipment and/or facilities shall be limited to the boundary lines of the Land or
along turn -rows existing as of the date hereof.
19. Grantee shall not permit any of its employees, contractors, subcontractors,
agents, or other third parties acting on behalf of Grantee who may enter upon the Land
under the authority of this grant to (i) bring upon the Land any alcoholic beverage or
illegal drugs, or (ii) to hunt on any portion of the Land or to take or carry any firearms
thereon for any purpose whatsoever. Grantors, or Grantors' representatives, shall have
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the right to deny access or to expel from the Premises anyone carrying any such
prohibited substances or any form of firearm.
20. "Grantee" when used in this instrument, shall include The City of
Lubbock's officers, agents, servants, employees, representatives, contractors,
independent contractors, subcontractors, invitees, and/or their equipment or vehicles.
21. 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.
22. 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.
23. TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTEE
HEREBY RELEASES AND AGREES TO HOLD HARMLESS AND DEFEND
GRANTORS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
CAUSES OF ACTION, SUITS, LOSSES, DAMAGES (INCLUDING PUNITIVE
DAMAGES), COSTS, FINES, PENALTIES, AND EXPENSES OF ANY NATURE
WHATSOEVER (INCLUDING WITHOUT LIMITATION REASONABLE
ATTORNEY'S FEES, COSTS, AND EXPENSES INCURRED IN
INVESTIGATING AND DEFENDING AGAINST THE ASSERTION OF
LIABILITY, AS SUCH FEES, COSTS, AND EXPENSES ARE INCURRED)
WHICH MAY BE SUSTAINED, SUFFERED, OR INCURRED BY GRANTORS,
ARISING FROM GRANTEE'S ACTIVITIES OR OPERATIONS UPON THE
HEREIN DESCRIBED LAND, TO THE EXTENT CAUSED BY GRANTEE.
SUCH OBLIGATION TO HOLD HARMLESS AND DEFEND SHALL,
WITHOUT LIMITATION, COVER BODILY INJURY, DEATH, DAMAGE TO
PROPERTY OR NATURAL RESOURCES, AND COMPLIANCE WITH ANY
GOVERNMENTAL RULE, REGULATION, ORDER, DIRECTIVE, OR
DEMAND REGARDING THE TESTING FOR, MONITORING, CLEAN UP,
REMEDIATION, OR REMOVAL OF ANY CONTAMINANTS, POLLUTANTS,
HAZARDOUS MATERIALS, OR OTHER TOXIC SUBSTANCES. NOTHING IN
THIS PARAGRAPH OR IN THE EASEMENT AGREEMENT SHALL BE
CONSTRUED AS A WAIVER OF ANY DEFENSES WHATSOEVER THAT
GRANTEE (THE CITY OF LUBBOCK) MAY HAVE UNDER ANY LAW,
INCLUDING BUT NOT LIMITED TO ANY DEFENSES OR LIMITATIONS
CONTAINED IN THE TEXAS TORT CLAIMS ACT OR ITS SUCCESSOR
PROVISIONS. GRANTEE RESERVES ALL DEFENSES AND LIMITATIONS
TO WHICH IT IS ENTITLED UNDER ANY AND ALL APPLICABLE LAWS.
24. It is understood and agreed that this Easement is not a conveyance of the
fee estate for any of the Land covered hereunder, but is only an easement through, over,
under, upon, and across the herein described Land.
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25. The provisions of this Easement shall be binding upon and inure to the
benefit of the successors and assigns of the respective parties hereto.
26. This Easement contains 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.
27. 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 provisions hereof, and
this Easement shall be construed as if such invalid, illegal or unenforceable provisions
had never been contained herein.
28. 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.
29. Grantors will not construct any facilities or perform any activities within
the Easement that may violate federal and state regulations regarding the protection of
drinking water supplies and facilities that convey such water. However, this restriction
shall not preclude Grantors, or their heirs, legal representatives, successors and assigns,
from applying on and/or around the Easement Land such fertilizers, herbicides,
pesticides, or other chemicals approved by the United States Environmental Protection
Agency. Grantors and Grantee hereby give notice to any subsequent mineral, water,
wind or energy lessee or grantee of any interest overlying or underlying the Easement,
that Grantee will be operating the Pipeline System within the Easement boundary in
accordance with the Permitted Uses as defined herein. To the extent that Grantors own
any mineral and/or royalty interest in and under the Easement, Grantors waive and
surrenders their rights to use the surface of the Easement for the exploration and
development of the mineral estate and/or the construction of surface facilities related to
the development of wind energy generation or production.
30. 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.
EXECUTED this 291h day of July, 2010 ("Effective Date")
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Exhibits: A - Description of Grantor Property
B - Metes and Bounds Description and Survey Plat of Pipeline System
C - Gate Construction Detail and Specifications
D - Drawing of Above Ground Improvements
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