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HomeMy WebLinkAboutResolution - 4149 - Sales Contract - Billy Huddleston - 71.66 Acres, H&GN RR Survey - 05_13_1993Resolution No. 4149 May 13, 1993 Item #41 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 Contract of Sale between the City of Lubbock and Billy Huddleston for the purchase of 71.66 acres of real property located in Section 55, Block 5, H&GN R.R. Survey in Kent and Garza Counties, Texas, attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: Betty M. gohnson,ity Secretary AP OVED AS TO CONTENT: r ins, Director of Water Uti ities APPROVED AS TO FORM: ar f r Assistant Y Attorney HW:Je/HDDLESTA.RES D2-Agenda/March 15, 1993 CONTRACT OF SALE THE STATE OF TEXAS § COUNTY OF GARZA & COUNTY OF KENT § KNOW ALL MEN BY THESE PRESENTS: BY THIS AGREEMENT AND CONTRACT, Billy Huddleston, of Scurry County, Texas, as the Seller and hereinafter called "LANDOWNER," and the City of Lubbock, a home rule municipal corporation of Lubbock County, Texas, as the Buyer and hereinafter called "CITY," by which Landowner agrees to sell to City and City agrees to buy from Landowner the property, rights, titles and easements hereinafter described upon the terms and conditions following: WITNESSETH 1. That Landowner has agreed, and does hereby agree, to sell and convey unto City, and does hereby sell and. agree to convey unto City the surface land to be acquired in fee (the oil and gas and other hydrocarbon minerals being reserved to Seller as set forth in the Memorandum of Agreement attached hereto as Exhibit A) by warranty deed, free and clear of all outstanding liens, mortgages, deeds of trust or other indebtedness, but subject to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty interests, if any, relating to or affecting the herein described real property, existing on the date of execution of the Memorandum of Agreement, all those certain tracts or parcels of land lying and situated in Garza and Kent Counties, Texas, and being more particularly described as follows, to -wit: A tract of land out of the Northwest corner of Section 55, Block 5, H.&G.N. R.R. Co. Survey, Garza and Kent Counties, Texas, and being more particularly described as follows: BEGINNING at the Northwest corner of Section 55, Block 5, H.&G.N. R.R. Co. Survey, being the common corner for Sections 54, 55, 70 and 71, and bears North 01'45124" East 5273.59 feet from a 1" iron pipe set as the Northwest corner of Section 56; THENCE South 88*24155" East 3553.82 feet along the North line of Section 55 to a 1/2" iron rod; THENCE South 65*18154" West 3969.01 feet to a 1/2" iron rod set in the intersection with the West line of Section 55; THENCE North 01*45124" East 1756.59 feet along the West line of Section 55 to the POINT OF BEGINNING. CONTAINING: 71.66 acres 2. In and for the consideration hereinafter stated and such specific consideration therefor as provided in the Memorandum of Agreement attached hereto, the Landowner, when necessary, will provide the City easements described by metes and bounds for one or more water pipelines, electric transmission lines and communication lines from the pump station across their property, together with temporary construction easements to construct and install water pipelines, electric transmission lines and communication lines, the pump house, dam, reservoir and other facilities required by City to complete the Justiceburg Project. 3. In and for consideration hereinafter stated, Landowner further agrees to provide the City, without cost, an easement for an all-weather service road to be used as controlled access for those parties authorized by the City of Lubbock to use the City Wildlife Habitat Area, such easement area being in the location described and referred to as "Section 97, Block 5" at the top of the page of a one (1) page description that describes a 3.63 acre easement out of Section 97, Block 5, H.&G.N. R.R. Co. Survey, Garza County, Texas, certified to by Wilson Surveying Company, Inc., dated July, 1987, all as set forth in Exhibit B attached hereto and made a part hereof by reference as if fully copied herein in detail in this place. Landowner agrees, not withstanding any inconsistency in the attached Memorandum of Agreement, that said road may be accessible to the public only for authorized use of the City of Lubbock Wildlife Habitat Area. 4. In and for consideration hereinafter stated, Landowner further agrees, not withstanding any inconsistency in the attached Memorandum of Agreement, to construct and maintain a fence along the property line established by the purchase of this tract of land. 5. That Landowner further has agreed, and does hereby agree, to sell and convey unto City, and does hereby sell and convey unto City, such other rights, titles, interests and privileges, and upon such terms, conditions and limitations, as Contract of Sale Billy Huddleston/Page--2 agreed, set forth and defined in that certain Memorandum of Agreement to which Landowner and City were parties, dated the 3rd day of April, 1986, a copy of which Memorandum of Agreement is attached hereto and by such attachment is incorporated and made a part of this Contract of Sale for all purposes. In the event of any inconsistency between this Contract of Sale and the attached Memorandum, either by inclusion of matter or omission, except as agreed in paragraph 3 above, the provisions of the Memorandum of Agreement shall control. 6. That in consideration of the conveyance to it by Landowner of the property, rights and easements above described, City agrees to pay to Landowner the amounts calculated, and at the times provided in the Memorandum of Agreement attached hereto and made a part of this Contract. This consideration is summarized only as follows: A. The sum of $800.00 per acre for all acreage defined by metes and bounds in paragraph one (1) above, which sum shall be full consideration for all titles and easements described in paragraphs one (1) and three (3). B. The sum of $20.00 per rod (and for an area 60 feet in width) for all easement areas described in paragraph 2. Notwithstanding anything contained herein or the Memorandum of Agreement attached hereto to the contrary, it is acknowledged and agreed that certain Landowners may not, due to prior separation or conveyance, own the minerals on their property. Such Landowners shall only be required to convey the surface without the minerals and shall be compensated at the rate of $800.00 per acre for the property conveyed. 7. The times and amount of each such payment shall be as specifically provided in the Memorandum of Agreement. The City shall consider and treat all other terms, conditions and limitations, as set forth and defined in the attached Memorandum of Agreement to the extent same imposes duties or obligations upon City, as required of City as a part of its consideration due hereunder. Unless otherwise expressly specified, in the event of any inconsistency between this Contract of Sale and the attached Memorandum, either by inclusion or omission, the provisions of the Memorandum of Agreement shall control. Contract of Sale Billy Huddleston/Page--3 S. Prior to the date any warranty deed or easement instrument is required by this Contract or the Memorandum of Agreement attached, the City at its sole cost shall arrange to secure such abstracts of title covering the real estate which is the subject of this Contract as appropriate for examination by an attorney of its own selection, and/or it may arrange to secure or obtain at its sole cost a policy of title insurance. 9. Any objections to the title appearing upon examination, or in the process of securing a policy of title insurance, which objections remain the duty of Landowner to cure under the terms of the Memorandum of Agreement, shall be set forth in writing and delivered to Landowner for cure or elimination at least sixty (60) days prior to the date of execution of any such warranty deed or easement right subsequently provided under the Memorandum of Agreement. 10. Landowner shall have a reasonable time to cure said objections and show title as is required under the terms of the Memorandum of Agreement, but that reasonable time shall not exceed the date provided for the deed or easement grant provided in the Memorandum of Agreement. 11. If Landowner fails or refuses to correct such title defect, City, in its option, may enforce specific performance of same. 12. Taxes on the real estate herein conveyed or to be conveyed, shall be prorated to the date of the final payment for all land taken in fee simple and in accordance with the Memorandum of Agreement attached. 13. Landowner agrees to sign and execute such warranty deed and easement instruments as conform with the Memorandum of Agreement. The duty to prepare all such instruments shall be upon City. 14. The parties hereto agree that compliance by each party of all terms, conditions, provisions, and limitations contained in the Memorandum of Agreement (as attached hereto) is of the essence of this Contract of Sale. Contract of Sale Billy Huddleston/Page--4 15. This Contract of Sale shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the respective parties to this Contract. 16. This Contract of Sale and all attachments thereto, may be filed of record in the Deed Records of any and all counties in which all or any part of the property or property interests involved lies or is situated. EXECUTED in duplicate originals as of the 13th day of SELLER: BILLY PDDLESTON ATTEST: J-�- c:),` s-' B tt�y Johnson, City Secretary AOVED�AS f�TO CQ3�iTENT: Da Hawkins, Director of Water Ut 'lities APPROVED AS TO FORM: Linda L. Chamales, Assistant City Attorney STATE OF TEXAS § COUNTY OF LUBBOCK § BEFORE ME, the undersigned authority, personally appeared DAVID R. LANGSTON, Mayor of the City of Lubbock, and acknowledged to me that he executed the foregoing instrument for the purposes and consideration therein expressed and in the capacity therein stated as th act and deed of the City of Lubbock this 13+h day of u , 1993. t'--M 308A rotary Public, L bocW County Texas J;[sealj, My Commission Expires: 04 103 145 Contract of Sale Billy Huddles ton/Page --5 STATE OF TEXAS § COUNTY OF LV,6 " § BEFORE ME, the undersigned authority, personally appeared BILLY HUDDLESTON, and acknowledged to me that he executed the foregoing instrument for the purposes and consideration therein expressed this /3 7�i- day of _, 1993. Notary Public, County Texas [Seal] My Commission Expires: LLC:dw/coat-agr/D4/C-Hudd1n.doc rev. March 30, 1993 E' Contract of Sale Billy Huddleston/Page--6 Dated: April 3, 1986 MEMORANDUM OF AGREEMENT RECITALS A. The City of Lubbock, Texas ('City') desires to construct the Justiceburg Reservoir Project to provide a municipal water supply for the City. B. The City of Lubbock, Texas, has obtained a Texas Water Code S 11.121 Permit No. 4146 (the 'Permit') from the Texas Water Commission ('Commission') to construct the proposed Justiceburg Reservoir Project on the South Fork of the Double Mountain Fork of the Brazos River in Garza and Kent Counties, Texas, and the White River Municipal Water District ('District') has obtained extensions of time on its permit to construct the.. proposed Post Reservoir on the North Fork of the -•Double Mountain Fork of the Brazos River in Garza County, Texas. The City may contract to obtain additional municipal water, supply from the proposed Post Reservoir Project. C. Mr. and Mrs. Billy Wayne Williams, Mr. and Mrs. Billy Huddleston, Mr. and Mrs. John Ward, Mr. and Mrs. John Reed, Mr. and Mrs. J.W. Headstream, Mr. and Mrs. Jim Boren, Mr. and Mrs. John Boren, Jr. and Mrs. Walter Boren ('Landowners') and Convest Energy Corporation ('Convest') are appealing the grant of the permit by the Commission to the City to construct the proposed Justiceburg Reservoir in Cause No. 369,838, Mr. and Mrs. Billy Wavne Williams, et al. vs. Texas Department of Water Resources, et al., pending in the 126th Judicial District Court of" Texas County, Texas. D. Mr. and Mrs. Billy Wayne Williams, Mr. and Mrs. Billy Huddleston, Mr. and Mrs. John Ward, Mr. and Mrs. John Reed, Mr. and Mrs. J.W. Headstream, Mr. and Mrs. Jim Boren, Mr. and Mrs. John Boren, Mr. and Mrs. Walter Boren ('Landowners'), Convest Energy Corporation ('Convest'), Mr. Sidney Johnson, individually, d/b/a Johnson Cattle Company and as Trustee for the Estate of Mr. Weldon Johnson, deceased, and as Trustee for the Estate of Mrs. Weldon Johnson, deceased, Mr. Weldon Clay Exhibit A Johnson and Ms. Vicky Lee Johnson ('Johnson'), have appealed the decision of the Commission to grant extensions of time for the District to construct the Post Reservoir in both Cause No. 346,496, Mr. and Mrs. Billy Wayne Williams, et al. v. Texas Department of Water Resources, et al., pending in the 299th Judicial District Court of Travis County, Texas, and Cause No. 374,346, Mr. and Mrs. Billy Wavne Williams, et 'al. v. Texas Department of Water Resources, et al., pending in the 53rd Judicial District Court of Travis County, Texas. E. All of the parties desire to settle the three above -mentioned lawsuits. AGREEMENT The Parties hereto, intending to be legally bound hereby, hereby undertake, covenant, and agree that the settlement is effective subject to the terms, conditions and provisions set forth below; I. Upon signing of this Agreement by the Parties hereto, the City will pay to the firm of Graves, Dougherty, Hearon & Moody, Trustee for Landowners, Convest and Johnson (collectively referred to as 'Protestants') the total amount of attorneys' fees and expenses and consultant fees and expenses of not to exceed the sum of $425,000.00, incurred in their prosecution of the protest to the Application of the City of Lubbock for a water permit to construct the Justiceburg Reservoir and the Applications of the White River Municipal Water District to obtain extensions of time to construct the Post Reservoir and any appeals from the decision of the Texas Water Commission granting..such permits or extensions. Prior to the date of contract of sale as provided in Section VII, the City will satisfy itself as to the ownership by Landowners of the property necessary to the full accomplishment of the terms of this Agreement and Landowners will cooperate with City in that regard. II. Upon payment of the amounts described in section I above, the Landowners will allow the City and their consultants reasonable access, without cost, to the property of Landowners in and about the proposed Justiceburg Reservoir site in order to conduct additional tests and perform additional geotechnical evaluations to ascertain the design of the proposed Justiceburg Reservoir project. These tests are to be completed within twelve (12) months after the date of payment of the amounts described in section I above. If, after the tests and evaluations described herein are conducted, the.City in its sole discretion elects to proceed with the proposed Justiceburg Reservoir Project, the City will, within fifteen (15) months after the date of payment of the amounts described in section I above, by written communication to the attorneys for Protestants, advise the Protestants that the project is feasible and will, within eighteen (18) months after the date of payment of the amounts described in section I above, employ consulting engineers for the final design of the proposed Justiceburg Reservoir project, and, within thirty (30) months after the date of payment of the amounts described in section I above, present to Protestants an estimate of the amount of acreage required to complete the project, exclusive of the land requirements necessary to satisfy the conditions of the•Section 404 Permit. The final design of the proposed Justiceburg dam and reservoir shall, as nearly as possible, provide that the service road and' power lines follow property boundaries to the pump station and dam site. The Landowners, when necessary, will• provide the City easements described by metes and bounds for one or more water pipeline's, electric transmission'' lines.. and communication lines from the pump station across their property, tocether with temporary construction• easements to construct and install water pipelines, electric transmission lines and communication lines, the pump house, dam, reservoir and other facilities required by City to complete the Justiceburg Project. The Landowners will be compensated by City at the rate of $20.00 per rod per sixty (60') foot width for all such permanent and temporary easements, which compensation shall be paid in cash at the time such easements are granted. Landowners, when necessary, shall provide the City, without cost, an easement for a service road to be fenced and constructed by the City, at the City's sole expense, which shall be an all-weather road fenced on both sides and accessible to the City and Landowners whose land immediately adjoins the road. Landowners shall maintain the fences after construction and the City shall maintain the service road. This road shall not be accessible to the public nor dedicated as a public roadway. IV. In the event that City, in its discretion, determines to construct the Justiceburg Reservoir as contemplated by this Agreement and does construct such facility, then and only then the City will grant to the Landowners Reed, Ward, and Huddleston, one tap each to allow use of the raw water in the pipeline(s) for such Landowners' domestic and normal ranching livestock consumption on Landowners' property. No warranty will be given as to the quality or the availability of water from the pipeline(s). The Landowners will provide a recording meter at each tap to measure the volume of water taken which shall be limited to twenty (20) acre feet per year per tap. The City shall have reasonable access to each tap and meter for the purpose of calibrating the same from time to time. .The Landowners shall own the land down to the normal operating level of the lake which is 'defined as 2220 feet above mean sea level, except in the limited area where additional land is required for the location of the dam itself, the spillway discharge channel, the emergency spillway, borrow areas as needed, public access areas, unusable land, pump stations, the service road, the dam abutments, and access between the pump station and the dam structure, and any land actually required for construction and/or operation of the dam, the pump station and other necessary facilities associated with the reservoir. In addition, without further compensation, the City, upon reasonable notice to Landowners, shall be granted temporary access to points on the shore of the lake for reasonable purposes necessary during construction and subsequent operation of the dam and reservoir. The Landowners and the City or its employees, agents and contractors, in the performance of their official duties with the City, shall have the exclusive right to use land below the normal operating level of the lake at times when the lake is below normal operating level, except areas between the water line and unusable land and public access areas. At such times, Landowners may use such land for livestock grazing and for their personal recreational uses. Landowners shall have no right however to build, place or erect any structure or facility within such areas. The Landowners shall provide the City, without cost, a restrictive easement and flood easement from elevation 2220 feet above mean sea level to elevation 2245 feet above mean sea level, which easement shall provide City (a) the right to intermittently overflow, flood or cover such land, at any time with flood, slack or backwater created by construction, maintenance and operation by City of Justiceburg Dam and the Reservoir and for the storage of water created by the construction of the Dam; (b) the right to enter upon said land, with due notice and without loitering, to clear; .destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth or any other thing which would in any way interfere with Project. V. Both the City and the Landowners desire that the minimum amount of public access to or from Landowners' property be granted to the proposed Justiceburg Reservoir. The Landowners agree to support in all things the City's application before the United States Army Corps of Engineers for the grant of a Section 404 Permit according to the provisions of 33 U.S.C.A. Section 404 and the regulations adopted thereunder. City and Landowners agree in the Section 404 proceedings to minimize public access to the lake from the Landowners' property. The City shall initiate and prosecute the Section 404 proceeding with reasonable diligence. VI. Upon completion of the final design the City will be allowed to survey the reservoir site in order to determine the total number of acres below the normal operating level, the number of acres required for the dam structure, dam abutments, borrow areas, pump station and access thereto, spillways, return, other structures, unusable land, and public access areas. Except as provided in sections III and IV with respect to the easements therein referred to, the City agrees to pay or com=ensate the Landowners for each acre taken by the City in fee title (the oil, gas, and other hydrocarbon minerals being reserved to Landowners as set out below) to .complete the Justiceburg Reservoir Project, as follows: $800.00 per acre which is the City's estimate of avoided costs by settlement. Landowners, however, shall have the right to use any of the land to be acquired by City in fee for normal ranching operations 'from the date that the City contracts to acquire such fee title until such time as the City pays the entire price for such land and notifies Landowners that it requires such land..for its use. Landowners shall not be required to pay any rent or other consideration to City for use of the.land above -mentioned. the construction, maintenance and operation of such dam and reservoir or tend to render the same unsafe or unsanitary and to prevent the drainage or dumping of refuse, sewage or other material into such reservoir and• to carry out an adequate program of pollution control; and (c) the right to prevent the construction of, or the removal, with due notice, of any structure or facility located or to be located on said land. The Landowners shall also impose, without cost to the City: a restrictive easement on such portion of their land which is between elevation 2245 feet above mean sea level and 300 feet horizontal distance from elevation 2220 feet above mean sea level if the 300 feet horizontal distance contains a larger area of land than is contained between elevations 2220 feet and 2245 feet above mean sea level, which easement shall provide the City (a) the right to enter upon said land, with due notice and without loitering, to clear, destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth, or any other thing which would in any way interfere with construction, maintenance and operation of such dam or reservoir or tend to render the same unsafe or unsanitary, and to prevent the drainage or dunping of refuse, sewage or any other material into such reservoir and to carry out an adequate program of pollution control; and (b) the right to prevent the construction of, or the removal of, with due notice, any structure or facility located or to be located on said land. Structures and facilities are defined as waterwells, septic systems, cesspools, barns, sheds, places of habitation, and boat docks, but shall not include pens, gates, fences, cattleguards or boat ramps. All structures constructed and maintained by the Landowners shall be at the Landowners risk with regard to flooding by the' City's reservoir. Each Landowner shall have the right to construct two boat rands, which shall comply with• applicable regulations imposed by the United States Army Corps of Engineers for the construction of such ramps at the Justiceburg Reservoir The City shall purchase all unusable land which is designated by red color code on the map attached hereto as Exhibit 'A', which Exhibit is made a part of this.Agreement for all purposes. The Parties agree that after the final design and construction plans of the reservoir are completed, other property of Landowners may become unusable land and such additional potential unusable land is designated on Exhibit 'A' by yellow color code. For purposes of such additional potential unusable land, the term 'unusable land' shall mean property owned by any Landowner that is a party to this Agreement, to which all reasonable access to such property or reasonable access to livestock water supplies to such property or reasonable use of such property for normal ranching operations will be denied due to the isolation of such property by water in the reservoir or City's facilities related to the reservoir, and/or property owned by others. The owners of all "unusable land' shall be paid for same at the rate of $800.00 per acre. The City shall have the right to designate as "public access areas' any or all of those areas designated by green color code on the map attached hereto as Exhibit "A', which Exhibit is made a part of this Agreement for all purposes. The owners of •public access areas' shall be paid for same at the rate of $800.00 per acre. The City shall construct and maintain a fence around the public access areas at its sole expense. The Landowners will retain all oil and gas, and other hydrocarbon mineral rights and other substances extracted with or as a by-product of the extraction of such hydrocarbon minerals and all development rights from such minerals attached to the -land acquired by the City, whether in fee or by easement. Included in such rights will be the right to drill hydrocarbon oil and gas wells through the reservoir and to locate such wells on barges or man-made islands in the reservoir itself. All such structures shall be' constructed and maintained at the Landowners' and Operator's risk with regard to flooding by the City's reservoir. With respect to all minerals presently owned by Landowners and not currently under lease, Landowners and the City expressly agree that all current and future •hydrocarbon oil and gas well drilling, storage and transportation activities, during both construction and operation and all facilities incidental thereto, shall be operated and maintained in such manner as will protect from any contamination the purity of the water impounded in the reservoir at all times pursuant to the applicable Regulations of the Railroad Commission of Texas; and that the location of any drilling sites on land owned in fee by the City shall be subject to approval by the City, which _approval shall not be unreasonable withheld. VII. Within 60 days after: (i) the date the City presents to Landowners an estimate of the amount of acreage required to complete the project pursuant to Section II hereof, or, if the City fails to deliver such estimate as therein required, the date the City is required to present such estimate; or (ii) the date the City obtains a Section 404 Permit from the United States Army Corps of Engineers, or following completion to final judgment by City of any appeal which may be taken from the Corps' issuance of a permit, whichever last occurs, the City agrees to contract for the purchase from Landowners of the surface land to be acquired in fee (the oil, gas and other hydrocarbon minerals being reserved to Landowners), by warranty deed, free and clear of all outstanding liens, mortgages, deeds of trust or other indebtedness but subject however to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty interests, if any, .relating to or affecting said property, and shall pay to the Landowners an amount equal to twenty-five (25%) percent of the amount obtained by multiplying $800.00 times the number of acres required to be acquired by the City in fee as determined in section VI above. This payment will constitute a non-refundable deposit and will be made pursuant to a contract of sale for the necessary land; however, the City even after payment of the non-refundable deposit and before the payment of •the balance of the purchase, as herein provided, expressly retains the right to elect not to proceed with the project or the purchase of the property wnich is the subject of this Agreement. Except for specific performance to obtain cancellation of § 11.121 Permit No. 4146 as provided for below, no further remedy, recovery, or any other relief shall be applicable other than forfeiture of the non-refundable deposit and of the legal fees under section I above. The City warrants that it has established and funded a dedicated account for the purpose of the land acquisition contemplated in this Agreement. The City shall have, and the contract of sale above -mentioned shall provide, the option to pay the full amount then due and owing on the land purchased pursuant to this section at any time. In the event the City does purchase the land necessary for the Justiceburg Reservoir as determined in section VI and later decides not to construct the reservoir or utilize the land, then in such event, and to the extent it is authorized to do so by State law, Landowners' shall have a right of first refusal to repurchase the land from the City. The right of first refusal herein granted to the Landowner shall be exercised by him within 120 days from the date the City notifies all of the Landowners of its intention to accept a bona fide offer for the purchase of the property. in the event that the Landowner whose land was purchased by the City does not exercise his right of first refusal or declines to exercise said right,' the other Landowners who are parties to this Agreement shall have the right to purchase the land in question provided that they do so within the 120 day period above set forth. The remaining seventy-five (75$) percent of the purchase price due hereunder shall, unless the City elect not to proceed With the project as above provided, be due and payable by the City prior to entry into actual construction of the dam, reservoir or any major facility relating thereto, and in no event later than three (3) years following the dismissal of litigation as provided in section VIII, below. In the event the City fails to pay the remaining purchase price as herein provided, the City will seek cancellation of its 5 11.121 Permit No. 4146 and Landowners have the right to enforce cancellation by specific performance. The balance of the purchase price to be paid Landowners (i.e., the total purchase price payable hereunder less the non-refundable deposit) shall be increased monthly from and after thirty (30) days after the date of dismissal of the litigation as hereinbelow provided at the rate of ten percent (10%) per annum until full and final payment of all sums due hereunder is made by the City. The City shall pay i to the Landowners semi-annually the amount of the increase accruing during such six (6) month period, beginning at the end of the first six (6) months after the date of dismissal of the litigation and continuing regularly and semi-annually thereafter until the entire amount of the increased purchase price is paid in full. Such payments shall be non-refundable and shall be credited toward payment of such increased purchase price. In the event that the United States Corps of Engineers requires as a condition to granting of a Section 404 Permit that the City acquire additional land over and above the amount determined in section VI needed for the construction of the Justiceburg Reservoir, then in such event the parties hereto agree that the $800.00 per acre purchase price shall have no application to any such additional land acquired under such circumstances, except where the Section 404 land designated is owned by the Landowners and.is contiguous to the lake. City agrees to indemnify and hold Landowners harmless from any and all claims or liabilities. or damages based on the negligence of the City or any of its employees, agents and contractors related in any manner to the City's surveying, feasibility investigations and construction and operation of the Justiceburg Dam and Reservoir. VIII. Upon payment of the twenty-five (25%) percent of the estimated land costs by the City, the Landowners agree to dismiss, with prejudice, their appeals from the decisions of the Texas Water Commission docketed as Cause No. 368,838 pending in the 126th Judicial District Court of Travis County, Texas, Cause No. 346,496, pending in the 299th Judicial District Court of Travis County, Texas, and Cause No. 374,346 pending in the 53rd Judicial District Court of Travis County, Texas. Landowners agree to pay court costs. In addition to the dismissal of the above -mentioned pending litigation, the Landowners further agree, upon the payment of twenty-five (25%) percent of the estimated lard cost by City, that they shall reasonably cooperate with the City in connection with City activities in planning, financing, constructing or maintaining the Justiceburg Reservoir or the Post Reservoir. IX. Prior to the paynent by the City to Landowners of the amounts described in section I of this Agreement, the Parties shall prepare and agree upon definitive documents required to effectuate this Agreement. A form of each document shall be attached to this Agreement for all purposes. X. During the pendency of the implementation of this Agreement and prior to the dismissal of the lawsuits filed by the Protestants, the Parties to this Agreement agree to make the necessary filings in the various courts in which the above -mentioned suits are pending to abate such suits, except for the perpetuation of testimony, if such be deemed necessary, but without regard to the other Party's right to object in court to perpetuation of testimony. XI. Each Party hereby confirms to each other Party that such Party: (a) had made its own. thorough and independent investigation and analysis of the terms and provisions of this Agreement and the transactions contemplated thereby; and (b) has not relied on any such investigation or analysis thereof made by any other Party or its counsel or other advisors or on any advice, statement or other communication made by any other Party or its counsel or other advisors with respect to the terms and provisions of this Agreement or the transactions contemplated thereby. XII. Each Party to this Agreement represents and warrants that all corporate (or other official) action on its part necessary for the execution and delivery and subject to the conditions contained herein, performance of this Agreement and the settlement has been duly and effectively taken. XIII. All representations, warranties and covenants contained herein or in the settlement shall survive the settlement date and will bind and inure to the benefit of the respective succesors and assigns of the Parties hereto, whether 'so expressed or not. XIV. No failure or delay on the part of any Party hereto in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a.right or power, preclude any other or further exercise thereof. No modification or waiver of any provision of this Agreement or the settlement nor consent to any departure by any Party therefrom shall in any event be effective unless the same shall be in writing, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Party in any case shall entitle such Party to any other or further notice or demand in similar or other circumstances.-- XV. Notices and other communications provided for herein shall be in writing and shall be delivered or mailed (or in the case of telegraphic communications, if by telegram, delivered to the telegraph company, and if by telex, graphic scanning or other telegraphic communications equipment of the sending Party hereto, delivered by such equipment) addressed at such address as the Party to be addressed shall have provided the other Parties hereto for such pu=.-.ose. All notices and ether communications given to any Party hereto in accordance with the provisions of this Agreement shall be deemed to have been given when sent by registered or certified mail, if by mail, or when delivered to the telegraph company,• charges prepaid, if by telegram or when receipt is acknowledged, if by any telegraphic communications equipment of the sender, in each case addressed to such Party in accordance with the latest unrevoked direction from such Party. XVI. —Each Party hereto shall provide such further instruments, documents and assurances as shall be necessary or desirable to carry out, subject to the terms and conditions hereof, the provisions hereof and of the settlement and, subject to the terms and conditions hereof, do all things necessary or proper to carry out the provisions hereof and of the settlement. XVII. This Agreement and the settlement shall be governed by and construed in accordance with the laws of.the State of Texas. XVIII. This Agreement may be executed by each of the Parties hereto or separate counterparts, each of which when so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument. Convest and Johnson will execute a separate Agreement with the City, the execution of which shall be a condition to the City's execution of this Agreement. In the event Con vest elects to dismiss .its appeals from the decisions of the Commission prior to the City's execution of this Agreement, execution by Convest of a separate Agreement with the City shall not be a condition to the City's execution of this Agreement. XIX. The words, City, Landowners, Landowner, Convest and Johnson shall be given the following meaning as used in this Agreement: 1. City shall mean the City of Lubbock, Texas. The City of Lubbock, Texas, however, shall be construed to include any governmental, corporate or other entity, by or through which the City of Lubbock may in its discretion select for the performance of any of its ! obligations hereunder, toward testing, planning, i construction, maintenance or operation of the proposed facility and any successor, transferee or assignee of the City's § 11.121 Permit No. 4146. The City of Lubbock may act through water districts created by law or by contract. The designation of such entity or individual for performance or the transfer of said Permit shall in no way affect the obligations owed by the City to any other party arising from this Agreement, nor affect any obligation owed to the City by any other party arising from this Agreement. 2. Landowners shall mean all individuals named in recital (C), above set forth in this Agreement. 3. Landowner shall mean any one of the individuals named in recital (C) of this Agreement with husband and wife being considered as one Landowner. 4. Convest shall mean Convest Energy Corporation. 5. Johnson shall mean Mr. Sidney Johnson individually, d/b/a Johnson Cattle Company and as Trustee for the Estate of Mr. Weldon Johnson, deceased, and Mrs. Weldon Clay Johnson, deceased, and Mr. Weldon Clay Johnson and Ms. Vicky Lee Johnson. 6. Justiceburg Reservoir shall mean all areas necessary to complete the project as determined in Paragraph III, IV, and VI, above, but does not include any area acquired to meet the requirements of a Section 404 Permit. IN WITNESS WHEREOF, the Parties hereto have caused by these presents to be executed by their duly authorized representatives as of the date first above written. CITY OF LUBBOCK, TEXAS ALAN h-HINRY, MAYOR ATTEST: CITY S.ECRETAR': " \ 17 i MR. -BILLY WAYNE WILLIAMS 7Tr., MRS. BILLY WAYNE WILLIA14S MR. BILLY HUDDLES ON i MRS. BILLY,,rr"iiiDLZSTON MR. OH14 WARD MRS. JOHU/ WARD NjFt.� JOHN REED MRS. JOH /REED • 11��._.L,.af :•ice.,,. MR1 J.W. HEADSTREAM MRS. J.W. HEADSTREAM MRS. IM BORELT 6r-y. �si1 As.I MRS. JIM4EOREN MR.IUGH ] BOREN MRS. jPHN BOREN MR. WALTER BOREN MRS. WALTER BOREN fcb/meh/0632j 3/27/86 I3 W SECTION 97, BLOCK 5 78 10.1 S 88.21'41" E 5276.71' 0 0 3.63 Acres o N 88' 21 41' W 5 276.69 i 105 I 96 fd. 1 114 " Iron Pipe byY i 79 1895 I F.M. German, (S.E. Car. Sec 97) 00 CD O • a Sol 1/2" Rod Cat v/ Cap mkd LS. 232 G,W O DESCRIPTION BEING the description of a 3.63 Acre easement out of Section 97, Block 5, H. & G. N. R. R. Co. Survey, Garza County, Texas and being more particularly described as follows: BEGINNING at a 1 1/4" iron pipe found at the Southeast corner of said Section 97 for the Southeast and beginning corner of this easement; THENCE North 85"21'41" West, along the South line of said Section 97. 5276.69 feet to a 1/2" iron rod set for the Southwest corner of said Section 97 and the Southwest corner of this easement; THENCE North 01.41'04" East, along the West line of said Section 97. 30.00 feet to a 1/2" iron rod set for the Northwest corner of this easement; THENCE South 88.21'41" East 6276.71 feet to a 1/2" iron rod set for the Northeast corner of this easement; THENCE South 01'43'63" West, along the East line of said Section 97. 30.00 feet to the place of beginning. CONTAINING 3.63 Acres NOTE: Bearings are based on Lambert Grid, Texas North Central Zone 6 m—1'58'40" Distances are actual surface distances. ...:.................:.. JOHN N. WILSON CERTIFIED CORRECT: ...•................•••• JchT} N. NiLson -c . 232 Registered Public Surveyor CITY OF LUBBOCK LAKE ALAN HENRY ROAD EASEMENT SECTION 97, BLOCK 5, H. & G. N. R., R. Co. SURVEY 'S�Q r4 .. ��Q Vol GARZA COUNTY, TEXAS v V Ov.ner BILLY HUDDLEST N Volume' Pa e Sv,�e ed urrow I Drown Overstreet I Scale one Dare Jul_ 8 WIL SURVEYING Co., INC. A (806) 763-3388 • 1718 AVENUE "N" • LUBBOCK. TEXAS 79401 23,838 EXHIBIT "B"