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Home My WebLink AboutResolution - 2009-R0500 - Contract - Giles W. Dalby Trust #2, Elizabether Elliot, Rebecca Whitmire, Etc. - 11_12_2009Resolution No. 2009-RO500 November 121P 2009 Item No. 2.1 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 for Purchase of Easement for a pipeline easement interest located on certain property owned by Giles W. Dalby Trust #2, Elizabeth Dalby Elliott, Rebecca Dalby Whitmire, Charlcie Dalby Mosser and Giles W. Dalby, Jr. located in Garza County, and all related documents. Said Contract for Purchase of Easement is attached hereto and incorporated in this Resolution Ias if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 12th day of ATTEST: CQ '=�=X Rebecc °arza, City Secretary�A APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operation Officer Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: tchell ;5+0w ,.4sbstant City Attorney Res.Contract Purch of Pipeline Easement —files W Ualhy,ete l 1.6.09 November 12009. TOM MARTIN, MAYOR Resolution No. 2009-RO500 CONTRACT FOR PURCHASE OF EASEMENT This Contract For Purchase of Easement (the "Contract") is made on this 12th day of November , 2009 ("Effective Date"), by and between Giles W. Dalby Trust #2, Elizabeth Dalby Elliott, Rebecca Dalby Whitmire, Charicie Dalby Mosser and Giles W. Dalby, Jr. (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 II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Easement described herein is ONE HUNDRED FORTY-NINE THOUSAND THREE HUNDRED SEVENTY-SEVEN AND 30/100THS Dollars ($149,377.30) (the "Purchase Price") which amount is the sum of the amounts set forth in Paragraph 12 (i), (ii) and (Ili) of the Easement Agreement, 2.02 Independent Contract Consideration. Within five (5) 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 CONTRACT OF SALE Dalby -City of Lubbock Bul Sellers_ _ `� � I Page 1 A..;.C.,,.jc,A,6..1. Q� . �:- 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 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: (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 (11) 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: 0) 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" orwords to that effect; (ill) 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 (li) the ultimate award to the Seller for the easement obtained by Buyer by judicial procedure, shall be the same as the consideration CONTRACT OF SALE Dalby - City of Lubbock guy Seller �j \ • , Page 2 l 'L, 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 (ill) 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: 0) 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 follovng items: (1) The sum required by Sectlan 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 (ill) The Title Policy in the form specified In Section 3.05; CONTRACT OF SALE Derby - City of Lubbock Buy Seller _ _ Le q/1, Page 3 p4-:;,.fto ,4ZZ A.'t. •. r� 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 foliowing 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 6.01(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 7.01(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, Seder'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 falls 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 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 (il) enforce specific performance. ARTICLE Vil 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: BUYER: Giles W. Dalby Trust #2, Elizabeth Dalby Attn: Davy Booher Elliott, Rebecca Dalby Whitmire, Charicie City of Lubbock Dalby Masser and Giles W. Dalby, Jr. 1625 13th Street cloGiles Dalby Lubbock, Texas 79401 P.O. Box 818 Teiecopy: (806)775-3074 Post, TX 79356 Copies to: For Seller: For Buyer: John C. Cox, Esq. Attn: Marsha Reed K&L Gates, LLP City of Lubbock CONTRACT OF SALE .�� Ifr,�\; ,� Dalby - City of Lubbock Buyer eller —_ " V Page 4 l %�.:cS, �.� ,0.A- "I& •. r-A-6A 1717 Main, Suite 2800 Dallas, Texas 75201 Telecopy: (214) 939-5849 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. 7.01 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 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. 7.02 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. 7.03 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. 7.04 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. 7.05 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. 7.06 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 7.06 shall survive Closing and the execution and delivery of the Easement Agreement. 7.07 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. SELLER: GILES W. DALBY TRUST #2 1'5•,+. W ►+-- Its: 1 Elizabeth Daiby Elliott R becc palby Whitmire haricie Daiby Mosser lJ�j a Iles W. Daiby, Jr. CONTRACT OF SALE Dalby - City of Lubbock Buye*Seller ° Page 6 sf Executed by Seller on the 3 / day of 0 G 2009, BUYER: CITY OF LUBBOCK TOM TIN, MAYOR Executed by Buyer on the 12thday of November 2009. ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: �v{ Marsha Reed, Chief Operations Offider Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: S6/1j z�dseZ�2 CONTRACT OF SALE Oalby - City of Lubbock Buye'A Seller page 6 EXHIBIT "A" to Contract of Sale EASEMENT FORM CONTRACT OF SALE Dalby - City of Lubbock Buyer elter__ ia Page 7 1110112009 13:41 (FAX) P.0021017 1rJ;[�/40611 '61.1tM d96-495-2376 PAGE 32 Resolution No. 2009—RO500 CONTRACT FOR PURCHASE OF EASEMENT this Coniroot For Purchase of Easement (the 'Contradr) Is made on this 5� day of 2DDA. ('E yq Date'), by and between ©Ilea W. Calby Trust Aft, Eitaxrbeth Debby Ellk4 Rebacce Daiby Whitmire, C"dole Daley Moseer and Wee W. D910y, Jr. (collectively referred to herein as eller') and the City of Lubb ocK Texas, it Texas home rule municipal corporation (referred to hereln as `&W), RECITALS WHERLAS, Seiler owns the Easement Area (as defined in the Easement Agreement (the ',gapagl^,alJ� F e -) attached hereto as Inxhiblt A) and the Temporary Easement Area (me defined In the Easement AgTeernont) (the Easement Area and the Temporary Easement Area snail be oollavtiveiy referred to herein as the 'Easetnant Area'); and WHEREAS, Seiler desires to sel) to Buyer, and Buyer desires to buy from Seller, a permarent and a temporary eaeernent (oe;lectively, tha'�m2ne ) over, acme and upon tMe cesemeni: Area and the Temporary Easement Area In scoerdance wtth the terms of the Easomant Agreement. ARTICLE I MI E OF EASE &NT For the consideration hereinafter eat forth, and upon the terms, conditlone and provislons hw*ln contained, Seller agrees to sell arrd convey to Buyer, and Buyer agrees to purchase from Sailer, the Eaeernent and all rights Incident 'thereto as aesaibsd In the Easement Agreement attached hereto .and incorporated herein for ak purposes. ARTICLE II PUF(CHASE PRICE AM EARNEST MONEY 2,01 Purchase Prim, The Purchase Price to be paid to falter for the Easement dasodbed herein le ONE HUNDRED FORTY-NINE THOUSAND THREE HUNDRED SEVENTY-SEVEN AND 3011ODTHS Dollars ($100,377,30) (ihe °puce') which amount Is the surer of the arnmmte mart forth In Paragraph 12 (I), (1) and .(III) of the Easement Agreement. 2.02 Independent Contract Consideration. Within five (5) business days after the EffectMe Date, as defined below, Buyer shall dealfver to Seller a oheck In the amount of One Hundred and No1100 Oeliers (5100,00) (liras 'kndeoendent Contract Conslderatlon`), which anourit ihe partles hereby acknoW+edge and agree hits been bargained for and agreed to as oonslderstion for Salier'e execution and dellvery of this Contract. The Independent Contract Conalderatlon Is to -be credited agalnbt the Purchase Price at alceir+g, It Closing (as We"Wed below) occurs. ARTICLE to TITLE,6W2 SURVEY 3.01 Title Commitment Within atxty (GO) calendar days after the Etfeative Date, Buyer, at Buyer's We coat and expense, sha!1 cause to be lurnished to Buyer and to Seller and to Seller's legal counsel a current Commitment for Title Irsumnoe (the 'ale CommMMsnY) for the Property, Issued by West "exam Titie Company ('Title QgMQa v') setting forth Re exceptions to tltie ('Exc4 Hans') end ooplae of any such Exceolons, 3.02 Survey. Buyer, at 96ayer'a soles cost and expense, has previously caused a current on fee ground survey fur the Property (the'SvrYM') to be delivered to Buyer, WIt1'rin tlfteer (15) days after the MCI," Date, Buyer, at Buyer's sole cost and expense, shall cause to be furntshee to Seller a copy of the Survey, 3.03 Review of Title Commitment, Survey and Exception Documents, Buyer shall have a period of ten (13) calendar days (tha'Tnlg Review Perlod') cammenoing with the day Buyer receives the lest of the Tithe Commitment and the. Exception documents, In which to give written nollce to Seller, specifying Bayer'® objections CONTRACT OF "159 Daiby - cit-1 or Lv"oou 64Ayet� .=....r f` Fecal 1110112009 13:42 (FAX) P.0031017 1b/ 2�jf21JEq 21: =0 606-495-2?76 PAGE e3 to one w more of the Items ('-QpftgUgaft If any. Buyer ooknowledges and ogress that this Easement will be subject to (A) sll Items disclosed on Exhibit F to the Easement Agreement, (8) all Berns lfrat wouid be disclosed on an accurate commitment for title Insurance covering the subject property, (C) above ground pourer limes, (0) pubic roans as refracted on the official county (or state) road map(e;, (E) all vaild and subsisting eroumbrsneee, easements, agdouaturai leases, wind energy Isaeev, and rights -of -gray of•rewcll in the county where the suoact property Is located and that at'ect the Easement Area and the Ternpvrary Easement Area efa of tho Effective Date, and (F) all minerals that have loeensevered from the surface and all oil and gas anc other rninerat teases existing on Me Effective Date (the foregoing, together with any exoepticne to tltie that are accepted or Walled by Buyer in accordance with Bectfo 3.Od shall b5 referred tc i",ereln as the' j��.J�� 3.04 Setter's Obligation to Cure; Buyer's Right to Terminale, rf Buyer notMes Ssller of Objedione to any of the rnattets fumished to Buyer pursuant to §gg§pn 3 03. the Sailer shall, within ten (14) calendar days abler Seiler to provided notice, either to satisfy the Objjoctlonb at seller's sole cost and expense or promptly noM Buyer In wrlting of the Objections that Seiler cannot or w1l not satisfy at Seiler's expense. 11 Seiler Is unwlll" or unab+e to swdkfy the Oblectlona within such ten (10) calendar day period, Buyer or Seller may at Its option extend the aare period up to an edditional fifteen (1e) days or Sorter may inform Buyer that Seiler Is unable or unWI:Ing'A ci,re the Objections, if the objectione remain unsatisfied, and X Buyer and Seller do net agree In writing to an cxta-wian of that wlod, then Buyer has the option of either. ,i) walving the unsotlehed Objections by, and only by, notice in wrMrg to Seller wltnin five (5) calendar days after the exp;ratlon of the our* period, in %Won event those Otgect,onr; shall become Permitted Exaeptlane; or (1) terminating this Contract by rlottca In wrlting and receiving back the Independent Consideration, In which latter event Sailer and Buyer shall have no further obllgation8, one to the other, with respect to the subject matter of this Contrsd, except as -prgvlded in §goon 3 below. 1oB ritte Policy. At Closing, Buyer, at Buyer's sole coat and expanse, shall cause a standard Texas Owner Polfoy of "itte Insurance (°er r') to be furnished to Buyer. The TRW Policy shall be Issued i:y the Title Company, In the amount of the Pu,chaee Price and Insuring that Buyer has an easement pursuant to the Easement Agreement over and across the Easement Area, subject only to the Psrrnffled Exceptions and the terms of the Easement The Title Policy may contain only the Pertn#ted Exceptions and shall contain no cater exceptions to title, with the standard ortnted or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows; It available based upon the 6uivey, the survey exception may be atnerded to read'shorlagee in area' only (sfihcugh Sohedule c of the Title Cornmtment may oonditlorr amendment on the presentation of on acceptable aurvey and payment, to be bome solely by Buyer, of any squired additional premium); (Iij no exception wlil be permitted for`visible and apperant easements' orwcrds tothet effect; (lil) no exception YOU be permitted for 'rights of parties In possession' (provided that arty Inspection foes or expenses required by the Title Company to delete thls exoeption shall be paid by Buyer); (ic) no Ilene will be shown on Schedule t9, unless the holder thereof has subordlnsted Its lien rights to the Easemem NobmMstanding the enumeration of the following oxceptlans, amendments and/or delotiona, 9uyor may object tv any Exceptions It deems material, In its sole discretion, 3.00 Other Remedies. Notwithstanding anything contaAed in this Contract to the contrary, If Buyer detsrmines Wall the easement intended to be conveyed to Buyer arr7 descrbed herein and In the Easement Agreein*ni, or any part thereof or undivided interest therein, should be acquired by judidet procedure to procure good 1114, then Buyer and Seiler hereby stipulate that if) an agreement, In the same form as the Eaeermt Agroamerrt, Shaft govern the terms of any easement obtained by judicial procedure, and (li) the ultirr,alle award to the Seiler for the easement oGtalneo by Boyer by judicial procedure, shall tm the same as the conaberetton CONTMA90T OF SALE DeMy - City el Lubbml% Buyer_ Selrer_�t�_,' �„� pave 2 11 10112009 ? 3.44 (FAX) p.004l017 IU/ lc _" Z U 6 :el . bd 6G6-495-2376 PAG= d4 stated In 8eciion 2.01 above and In FgWBm&12 of the Easement Agreement, W eheuW the BaRor own a leaser Merest in the ;esoment Area or Temporary Easement Area intended to too conveyed to Buyer and described herein, such avduM shall not exceed that porttor of the consideration stated In Paragraph 1 of the Easement AgreerneM Mich the value of suoh lesser interest of Solver beans to the value -of the entire Eaeerhent Area or 'r-eernporrary Easement Area described herein, This §Sdor, 3.Ot3 ehali survive any terrnfnation of this Conirw* ARTICLE IV G VENANT8.AiND A2REEM9MT 4.01 Covemanto and Agreements of Seller, Seller represents and warrants that to Sabra knowledge and subject to tha Pe muted Exoeptiole Seller has good and indefeasibA title to the Easement Area smi further covenants and agrees with Buyer as follows, (a) Seller repre"ntae that to the best of Its knowledge Exhibit F to the Easement Apreemerit, wt»n prepared and de4voted by Seller; wail set forth s list of Q aN unrecorded agricultural 'easev and agreements which encumber the au4" property, (ir) air unrecorded mortgages or doodah of trust which encumber the subject property, and (61t) all unrecorded easements granted by Grantor whloh encumber the subject property. Seller wiN provide to Buyer within thirty (30) days oftr Seller's receipt of a copy of the Title Commitrnwit, copies of ail vooumeeni s to be dssc:ibod in the Easement Agreement on Eathlblt € that are no,, reflected In the Title Commitment. Buyer shall' fielve tan (10) days after recelpt of suds documents to ot4eot to any matters set forth therein that are nvt contained in the Title Commitment. Thereafter, Boyer and seller shell have the sams obje,,tiora and cure rights vdth respect to such ob)ectons aswe set forth In Uotlon 3,4�4 (b) From the Effective Date until the date of Cloaing or earlier termination of thle Ccrnrsot, Sailer 0 1l! not Bel', zmslgn, or convey any right, Nile or Interest Malsoeve5r In or to the Easement Arae, or create any lien, encurnbranCe, or charger thereon. ARTICLE V CLOSING 5.01 Dabs grad Plaice of Closing. The Closing shall take place in the oMoes of the Title Company. The Clealr;g uaw ;herelr. comet?ores called), ahaii be on the earner to occur of (t) the dale that Is ninety (90) days after the Effeubua3 pate, or (I1) such earlier date as mutually agreed on by Seller and Buyer. However, the closing date as Identified herelr may be extended by elthw party for a lrerlod of thirty (30) day9 In order to comply warn the We firnits contained in Article III and Article IV. 5.02 Items to be Delivered at the Closing. (a) IfIeL At the Closing, Seiler shelf deiivw or cause to be delivered to the Tina Company the following items: (:) An Easement Agreement. In the " as attached hereto as Exhibit A, duly eaecuW by Seiler and acknowledged; and ;b) ewer. At the Closing, Buyer shall deliver the Title Company; or Will,, for Itself, the fol!QWN Items: (1) The sum required by $%odor 2.Q1 in the farts of Irrimedlatefiy wyai able Federal turade to t)e paid Irnmedatelyto seller, (II) The IEaeemern Agreement, in the form as a'tachad hereto as Exhibit A, duty executed by Buyer and aecicnowiesdaed; and (?i) The rifle Pol;oy in the form spe IPW In Section 3.05; cu M At 0`rOFULP lAt ry • Oily of LubbacK Buyer 8aelrer ____ Prpe 3 1110112009 13:45 (FAX) P.0051017 lid' '3/20e05 2'_ , 5iJ 606- 995--2376 PAGE a5 9w0 Suer and Geller shall deliver other Perna ressonabiy requested by the Title Company as saftnistrative requlrement5 for consummating the Closing. ARTICLE V1 DEFAULTS AND B Eli DIES 3.01 8sllaf's Defaults and Buyer's RarmWiss. (a) Seiler's Defaults. Seller la In default under tt'le Contract on the occurrence of any one or rnore of the following evert: (s) Seller fal�s to meet, oomply van or perform any covenart. agreernent, or obNgeticri on Sailers part required within the We limits and In the manner requited In thle Contract, or (il) Seller fails to deliver at Clos+ng, the Items specified In §ggjjq tf.01t$ of this Contraa for any reason other then a default tsy duyer under this Contract or tBrmWtation of this Contras« pursuant to tte term; hereof prior tc Clesing. (b) Buyer's Remedlee. if 7A1(c) occurs, Buyer may: (1) terminate the Contract and raaatvs the Independant Conalcieratfon as Buyers Lowe and exzIuelve remedy, or (0) ardorce speolfio performance. 6.02 Buyer's Default, Seller's Remedies. (a) Buyer's Defcult. Duyer Is In delsa:( under thla Contraaot art the oaourrence of any one or more of ine fa6owing events: (1) Buyer rare to meet, oonr, y with or perform sly eovertant, sgreamerrt, or obligation cn Buyer's part required within the time lhnits anti In the manner roqul W in this Contract, or (il) Buyer falls to delisrer at Closing, the Iterre speolfied Ot, 8gg))ol Q,Q t;. of tie Cvrriraot for any reason other than a detauft ty Bailer under the Contract or Wntlrratlon of this Contract pursuant to the terms hereof prlcrto Closirg. (b) SWer'e Romedlee. If 7.02(d) occurs, Sel.or may: (1) terminate the Contreot w�d retain the Independent Cort831deration as sglhrra tole and exctusive remedy, or (r;) enforce tpeoiftc performance ARTICLE VII 7001 Notice, All natloes, demands, requ", end other cor+irnun!catlons requlrml hereunder shalt be In 'wtlting, and shall be deemed to be delivered, upon the eariler to owur of (a) a", ! racseipt, end (b) the deparsit of, In a regularly rnalrOlred reoapmele for the Wed State* Mail, registered cr certified, return receipt requested, postage prepaid, eddreseed ae rolims. SELLER: BUYER: allee W Dalby Trust #2, El"t oth Oaby At;n: Dwoy Boohar Elliott, Rebeoca Oalby Whitmire, Charts Clty of Lubbock Ua!by Mower and Giles W. Dalby, Jr, 1026 13th Suet rloGlies L13iby WbWek, Texas 79401 P.O. sox $18 Teiecopy: (8056 775-3074 Poet, TX 79358 Coplaa to. arSeller: Eor Buy r .lohn 0. Cox, Esq. A11n. Marsha Riled W,&L Gates, LLP City of Lubbock CONTKACT OF 0" Dolby - 811y of Lubback Buyer ,, 8NN► �_ _,,, _ „_ Plage 4 11/0112009 13:46 (FAX) P.0061017 1 rJ/47/Z00'J G-: ill ads-4"�n--1376 PAGE 06 1717 Main, Sufis 2800 Dallas, Texas 7.1201 Teietopy (214) 939-5t349 1625 13th Street Lubbock, Texas 79401 T"oopy, (sae)77s20s1 The parties may change their address efreCnro in the same manner as other notim Provided hereunder, 7.01 Governing Law and Venue. TRIe Contract le be ng executed and delivered and ie Ir ndad to be parrormed In the State of Texas, the lava of Taxes governing the YsWlty, construction, enforcement and Interpretation of this Contract. THIS CONTRACT IS PERFCRMABLP 1N, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT W171 H RESPECT HERETO, SHALL UE IN THE COUNTY WHERE T4F- PROPERTY 15 LOCATED, 7.02 EntErety and Amendments. This Contract embodies the entire agreeman! between the partkw and 6upereades all prior agrearnem and understandings, If any, related to the Easement, and may be amandea or suapiemented only In wrIling executed by the party agalnat whor* enfomernent Is sought. 7,03 Pasties 5cund. This Contract is binding upon and inuree to the benefit of Geller and 3uyer, arni their respective r,alrs, executors, adrFllnistratora, suea.ssom and asslgna. 7.04 Further Assurances, debar and 5uyar agree to pemr-n, execute and/or deliver, or cause to be pe" forrftea, executed aridlor delivered at the Closing or after the Closing, any further deeds, acts, and aseuranoes as are reasonably neceseary to consumrnste the transeotlorw contemplated hereby. 7,05 Exhibits, The Exnlbits whlcrl are referenced tn, and attached to th!e CoMraat, are Irtoorperated in and rnade a part of, th!a Contract for all purposes, 7.00 Agosement In Llau of Condernnatton. This Contract and the Esaemerrt Agreorn" are entered Into by Buyer and Sefler se a settlement and oomprom" Ileu of conaemnatlon and the oonslderatlon eat forth herein and the cuvenarrta ano agreemerris of the Buyer eel forth in tie Easement Agreement are given to 8o]* In oornpensatlon for the ecgaiailion of the Easement in acwrdar" vft the Eemment Agreement. This Section IM shell survive Cloairg and the execution and depVery of the Easement Agreement, 7.07 Avthor€ty. Any action that Is proylded to be, or may be taken by Buyer hereunder Is hereby delegated by the oily Council of the City of Lubtock to the Deputy City -Manager of Buyer, or No deelgnae, When the context requires, singular nouns and pronouns rnolWe the plural. The undersigned represent and warrant their reepecttva au',horlty to execute the contract, and to convey the interest In property desorlbed herein SELLER: GILES W. DALBY TRUST.#2 By. Its'. Eh bath Delby Elliott Rebecca Dalby Whitmire Charlole Dalby Moaaer G;fas W. DaItry, Jr. CON111ACT of $ALe Datoy-CityofLubboak Buyer__._, iA®n.r Plus 1110112009 13:47 (FAX) P,0071017 x�S! I/lOby 1 :bd 826-495-2?76 PAGtir 07 Executed by Seller vri the Fxe.,tlad by Buyer on the ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT, day cf 2W9, BUYER. CITY OF LUBBOCK TOM MARTIN, MAYOR day of 20C9 Marsha Reed, Chlef Opamtions Officer Gave Basher, Right -cat -Way Agent APPROVED AS TO FORME: Mttaholl Satterwhlle, Assistant City Atlomsy OONTRACT OF SAW paby - City of 6u*ock Buyer, SW k-A- ._ pops a 1110112009 13:47 i17� 1 J 40O z c1 . na bbb-495--2376 EXHIBIT "M" to Contract of Sale EASEMENT FORM ODUMAGTOF BAIL DebY-QKy of Lubbock Buyer,_ (FAX) Pape i P.008I017 PAGE 38 C-11'10i!'2004FJ.I`3 71==2c.12-:4 PE,r I kj-4ITM_`E ra3E 01 Resolution No. 2009—ROSOO CONTRACT pOR PURCHASE OF EASEMENT I nis Contact For Purchase of Easement (the `Contract") Is magE on this _ dey of 20o9 (°E active Cale"), py and between Giles W Darby Trust 92, Elizabeth Dal'oy Elliott, Rebecra Calby Whirr rii+e CHa6c:e Dalby MQwr and Giles W. Dalby, Jr. (co!leotive{y referred to herein as "5yer") and time City of l..uobock Texas, a Texas home rule municipal corporatlon (referred to herein as M Bit M") RECITALS s!E!F"REAS, Seller cwns the Easement Area ,as deftned '.n the Easement Agreement (the 'EasPttte . ?free ") attached hereto as Exhibit A) and the Temporary Easement Area (as defined in the Easement Agreerlent) (the E,assment Area and the Temporary Easement Area shsl 'oe col!er^tivety referred to herein as the '�.serner� per'), ana WHEREAS, Sailer desi;.;s to sell to Buyer, and Buyer oesires to buy from Seiler a oennanent and a temporary eacemeni (collectively, the "Eatitme ) over comes and upon the Easement Area and the Temporary Easement Area Iri accordance with the terms of the Easement A9lrsernenir ARTICLE I L EAS ,(VEfUT For tho consideration hereinafter set forth, and upon tie tennis, conCltlans and provlgion5 herein contained, Seller agrees 10 sail and convey to Buyer, and Buyer agrees to purchase frorr Seiler, the Easement and all tights Incident thereto as desrylreti In the Fasernent Agreement attached hereto and incorporated herein fry' Ali ourpoees ARTICLE 11 PUBgHASE PRICE !SND EM1IEST MONEY 2.01 Purchase Price. The Purv". se Price to be paid to Seiler for the Easement described herein Is ONE HUNGIRED FORTY -NAVE THCUSANIa THREE HONORED SEVENTY-SEVEN AND 34100THS Dollars ,'$149,371 30) (the `r'> chase Pr.cB") wi'lich amaLnt is the au+Tl of the amcurzte set forth in Paraf;raph 12 (1), (1) and (11) of v-* Easemant Agreament, 2.02 Independent Contract Considerstlon WWI, fvs (S) business days after the Effective Date, as defined below, Buyer shall deliver to Seller a check ,r, the amount of one Hundred and No/ -MC Duilars ($100.00) (the independent CotWactConstdersttcn'), which amount the parties hereby acknowledge and agree has been balgained for and agreed to as considerstlor,, fir 'Seller's exec0ion and deilvery of this Cwttract. The Irtidependent Contract Considtmtior is to t)e crediteo against the Purchase Price at cica4ng, If Ckning faa identdled bbtow) occurs ARTICLE III TITLE AND SUR Y 3,01 TMe Carrarltrnent. Alithir S!Xty (60) calendar days after the Effective Date, Buyer, at Buyers sole cost and expense, sha.l cause 10 be furnished to Fu/er and to Seller and to Sel!er's legal counsel a current CommttmW, for 7 lie Insurance ;the "Title Commliment'l for the Properly, Issued by West Texas Title Companv (°Ttt�e Cr�rrrsary'} setting fcrth its exception to title (' xceotions'I end cop+eel of arty suet) Exceptions. 3,02 survey. Buyer, at Buyer's sole cost and expense, has previously caused a current on the g►cunQ SL(Vey for the Properly (the `S - e ') to be delivered to 5uyer. Within ftfteen (16) dsye after the Effective Date, Ruyer. at Buyer's sole cost aria expense, shall cause to be furnished to Seller a copy of the Survey, 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shah ,ave a period of ten (1,-) caOenWr eayr (tftp 11544 fevlew1,19riod') commencing with the day $3+. er raceivaJ the actr or thca Title Ccmmitrnent and the Exoeptlfln dOCLmeois, in tench to give en notice to Seller, epecifyfng Buyers objections CONTRACT OP SALF ��-y 081by City of Lubbock Buyer — Belief____ �. Pape 1 424 EC:K.T >;IHITM;aE FA.aE 02 to one of more of the kerns ('01biectfDtr'), if any Buyer aeicnowledpaa and agrees that the Easement will be subject to (A) al Items diazctosed on Exhibit F to the Easement Agreement, (B) all Items that vmuid be disclosed on an accurate eommitinent for We Insurance covering the subject property, (C) above ground power lines, (D) public roads as refected on the otfloial Wunty (or state) road rri*si, (E) all valid and isubeisting encumbrances, easements, agricultural leases, wind energy leases, and rights-oll-way of record In tote county where the subject property is located and that affect the Easement Area and the 'rem 'wary Easement Area as of the Fffecti�,re Date, anv (F) all minerals that have been severed frorr the surface and all oil and gas and other mineral leases exlsti-•g on the Effective Date (the foregoing, together with any exceptions to title that are eecepted or walveo by Buyer in accordance Mh ectl n 3 0 snail be referred to herein as the'Perm itted Exce ions"). 3.04 Seller's Obligation to Cure; Buyers Right to Terminate. !f Buyer notifies Seller of Objections to any of the matters furnished to Buyer pursutant to Seddon E.G3, the Seller shall, within ten (101 calendar days efts, Seiler is providedJ notice, either to satisfy the Objections at Seve s sole cost a;nd expense or oromptiy notify B,:yer in rariting of One Drjections that Seller cannot or wilt not eailefy at Seher b expense If Seller is unwilling or unable to sat;sfy'.he Oojeclions within sued ten (10) calendar day period, Buyer or Seiler may at its option extend the cure period up to an sidditlonal t,fteen (15) days or Seller rray Worm Buyer that Seiler is unable or unw4ling to cure the. Objections_ if the Ob)ecliorrs remain unsatisfied, and If Buyer and Seller do not agree in writing to an exteveion of that Vinod, ther Buyer has the option of either. (i! waiving tt�e unsatisfied objeotions cy, and only by, notice in writing to Seller whhir, five (5) calenow deys after the expiration of the cure period, it which evert those objections shall become Permitted EXCeplions', or (if) terminating this Contract by notice in writing and recelving back the Indeperdert Cor,s?demtlon, In which atter event Seller ared Buyer shall have no further obligations, one to the other with espect to the subject matter of this Contract, except as provided In Sectwn 3.06 below, 3.05 Title Policy. At ✓lasing, Buyer, M Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ('Title_!5jU'j tot be furnlohed to Buyer. The Title PoIloY shah be issued by the Title Company, in the amount of the Purchase Price and insurfRg that Buyer has an easerlent pursuant to the Casernenl Agreement over and across the Easement Area, subject drily to the Permitted Exceptions and the terms of the Easemeril. The Tde Pokey Tray contain on'y the Permitted Exceot.one and shall =stair nn other exceptions to tide, with the standard pr!ntec o,, commonly Inserter: except..o:rs amended or deleted at the option Of Buyer, W, fottows; (i) it available based upon the Survey, the suvverr exception may be amended to read 'Shortages in area oniy (although Schedule C of the Title Comenitrrent may condition amendment i�n the presentation of an acceptable survey and payment, to be borne solely by Buyer, of anv required additional p,erniurr) 0,no exception will be permitted for'wsible and apparent easernbnts° or words to that effect; {ill; ro exception will be permitted for 'rights of partles in possession" (provided that sny iriW.ot}on fees or exoensea required by tt+e Title Compary to delete this exception snail be paio by Buyer), iiv) no liens will be Down nn Schedule 5, unless the voider thereof has subordinated its lien rights to the Easement Notwith5tanding the enumeration or the folloWig exceptions, amendments and/cc deletions, 3uye- may ot�ect to any Exceptions it deems rnate'lal, in its sole discretion. 3,00 Other Remodles. Notwthstanding anything contained in this Cont*act to the contrary, it Buyer de;ermines that the easement intended to be convey_d to Buyer and described heroin and in the Easement Ag,eerrenl, or any part thereof or urral rlded interest therein, should be acquired by judicial procedute to pr-, .ire good tilde, then Buyer and Setter hereby stipulate that it) an agreement, in the sarre form 3s the Easement P0rocoment, shall govern the terms of any easement obtained by jud!clal praL-;edusA, and (ii)',he ultimate award to Me Se * tar the easement obtained by E•uyer by judiclat procedure, shall be the some as the corslderation oONTIRACT OP SALE � Oalby - Clty of Lubbock Buyer_— Setler—., _ Y.___ pWa 2 01 71 _-2.44224 EE^_K.T (4-11TN"PE 1::A--3E 03 stated in Spg;lon_Z.Q1 above end in ParagjAd i 92 of the Easement Agreement, but should the Seiler Town a lesser interest ;n Vie Easement Area or Temporary Easement Area intended to be conveyed to Buyer and described herein, such award Shah not exceed that portion of the consideration slated In Parsi rah 12 of the Easement Agreement ;Mitch the value or such lesser interest of Seller bears to the value of the entire F_aseme^t Area or Temporary Easement Area deSUIDW herein. This ctlo shall survlve any termination of this Contract. ARTICLE IV COYEf M1§ AND AORF,F.M Nis 4.01 Covenants and Agreements of Seller. Seller represents and warrants that to Sel!e►'a knowledge and subject to the PenDded E,\ceptions Seller has good and Inde!*Wble title to the Easement A'ea aria furtner covenants and agrees %*h Buyer as follows: !a) Seller represents that to t`se best of As knowledge Ekhlb#t F to the Easement Agreerr ent, when prepared and delivered by Seller, wN set Forth a list of (1) all unrecorded agricult,ira' leases ana agreements which encumber the subject property, fit► all unrecorded mortgages or deeds o` tryst which anCumber the subject property, and (:II) ate unrecorded easements grardad by Grantor wNch encumb®t the subiseot properly. Seiler will provide to Buyer within thirty (3G) days after Se4er's recalpt of a copy of the T''tle Commitment, copies of all documents to be described in the Easement Agreement on Fxhlbit F that are not reflected i- the Tale Commitment. Buyer Isholif `rave ten ("0) days after receipt of such documents to object to any matters jet fof1h tnerein that are not contained in the Title Commitment. Thereafter, Buyer and Seiler shall have tre same - objection and cure rights with respect tc such :4Ectlons as are set lwth In Section 3.04. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seiler shall not set;, assign or corwey any right, title or Interest whatsoever in or to the Easement Area, o' r,.reate any lien, encuirbianoe, or charge thereon, ARTICLE V CLOSING 5.01 Dane and Place of Closing. The Closing shall take place in We otliceG of the 'Title Company. The Glowing Date fherein sometimes cal'ed), shall ae on the earlier to cc,ur of (i) the date that Is ninety (90) days after the Effective Date, or (It) such earlier Gate as mutually agreed on by Seller aid Buyer However, the closing date as identffied herein may be extended by either parry for a period of thirty 130) days it order'o -ornoly with the time limils contained In Article III ai,d Article IV, 542 iterns to be Dellvered at the Closing. (a) Seller At this Closing, Seller mall deliver or COuse to be delivered to the Title Compony ttre For —owing Items (i) An Easement Agreement, in t.ne form as attached h47-re<o as Exhibit A, du.y eM;uted by Seiler and acknowledged; and 4b) gj er. At the Clusing, Buyer shati deliver the Title Go"rpany or obtat^ for aseif, the followng aemw (1) The sum required by Scalar? 2.01 in the form of immedlatejy aval4bie Federa; furless to be paid i nmediately to Seller. (to T he Easemert Agreement Ir• Vie forms ae attacnec hereto as Exhibit A. duly executed by 54Ayw and ooknowiedged, ano (110 The 'Title Policy in the form specified In Section 3.05 C CONTRACT OF SALE Oarby City Of Lubbook 8uyer 111011er �__ Rrp� 3 ill 10i 11 :100C ELF): '?= -1 _'�''44 2_74 K.Ck;I 1,!-IITM1:Pt FA!5E 04 Ecth Buyer and Seller steal! deliver other items reasonably requested by the 7I1le Company as administrative regt,Irernents to' C0r`,SUn1rnaVW the Closing. ARTICLE VI ©EFA4LT§ 8NQ REMEDI&S 6.01 Seller's Ddaultsand Buyer's Remedies, ter) Seller's Defaults Seller Is in default under this Contract on the occurrence of anyone or more of the following events () Seiler fall's to meet, comply with or perform any covera^t, agreement, or obligation on Seller's part requited within the time limits and In the manner requ red in this Contract, or (it) Seller fails to deliver at Closing, the items specified in Section 6 01 a cf this Contract for any reason other than a default by Buyer under this Contract or tier nination of this Contrail pursuant to the terme hereof prior to Closing. (b) Buyer's Remedies, If 7.01(a) occurs, Buyer may (i) terruinate the Contract and receive the ln4epandbnl Consideration as Buyer's sole and exclusive remedy, or (i!) 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 eventsl (I) Buyer tails to meet, comply wth or perform any ccvenant, agreement, or obligation on Buyer's part required within the time limits and in the manner required in this contract, or (li) 84jyer falls to deliver at Closing, the items upeodled In Sutton o D2tb1 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 Remeoies. If 7.02(a) occurs, Seiler rnayt (i) terntinete the Contract and retain the lndepanderrt Consideration as $Mier's sole and excliefve remedy, or (il) enforce specific performance. ARTICLE, VII 711 Notice, Alf notices, demands, requests, and other cummumcations required hereunder shall be in writing, and shei be deemed to be dsllvered, upor the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle rot the Unitec States Mail registered or certified, return receipt requested, postage prepaid, add reeled as follows. SELLER. BUYER Ciles'Al. Darby Trust 02, Elizabeth Calby Attn: Davy 13coher Elliott. Rebecca Dalby WFtitwr", Chancre City of Lubbock Dalby Miner and Giles W. Dalby, Jr 1625 13th, Street cioGlles Dalby Lubbock, Texas 79401 P.O. aox 618 Teleancy (806)775-3074 Post, TA. 7935E Copies to Fcr Sel e, nor Huyec Jahn C, Cox, =sq Attn: Marsha ReW K8_ Gates, LLP City of Lubbock CONTRACT OF SALT; �r Darby - City at Lubbock 8uyer _ We `_ ?"a 4 1717 Main, Suite 2800 Dallas, Texas 75201 Teleeopy' (214) 939-584Ei 1625 13th Street Lubbock, Texas 79401 Telecopy. (608)77-2051 The parties may change their address effective in the same manner as other notie es provided hereunder. 7.01 Governing Law and Venue. This Contract is being executed and delivered and is intended to tie performed in the State of Texas, the lawn of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCL(JSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE= IN THE COUNTY WHERE THE PROP -RTY IS LOCATED 7.02 Entirety and Amendments. "his Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, it any, related to the Casement, and may be amended or supplemented only in writing executed by the party agafnst wham enforcement is sought. 7.03 Parties Bound, ThjS Contract is bind!ng upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 7.04 Further Assurances. Seller and Buyer agree to perform, execute and/or dEl ver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deed9, acts, and assuranceF as are reasonably necessary to consummate tF-s transactions contemplated hereby 7.05 Exhlbits. The Exhibits w1ich are referenced in, and attached to this Contract, are incorporated In and made a part of, this Contract for all purpoees. 7,08 Agreement In Lieu of Condemnattan, Th.,s Contract and the Easement Agreement are entered into by Buyer and Seliet as a settlement and compromise lieu of condemnation and the consfderatton set forth herein and the coverarts and agreements of the Buyer set forth in the Easement Agreement are give'i to Seller in compensation for the acquisition of the Easement in accordance with the Easement AQraement. This Section shall survive Closing and the execution and delivery of the Easement Agreement. 7.07 Authority, Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City Councd of the City of Lubbock to the Deputy City Manager of Buyer, or his designee, Men the context requiras, singular nouns and pronouns include the plural, i he undersigned represent and warrant their respective authority to exemAe this contract, and to convey the Interest in property described herein. SELLER. GILES W. DALBY TRUST #2 IM Its EIsZB th D Iby Elliott Rebecca Da!byAF 4m* Charicie Dalby Mosser Gees W, Dalby, Jr. CONTRACT OF SALE NIby • City of Lubbock 9uyw T 5lllar Page 5 01, 01, 00` 0r�. �; 713°2� l�I4 EE:'b;I WHITMIRE FA3E 05 Exec ted oy Seller cn the day of 2CO9. B3UYER CITY OF L.uBBOCK TOWMARTIN, MAYOR Exewted by Buyer on the day of 2G09 ATTEST Rebecca Garza, City Secretary APPROVED AS TO CONTENT: f,Aarsha Reed, Chief Ocerations 0mcer Dave Booher, Rlaht-of-Way Agent APPROVED AS TO FARM: M3tahe�i Satterwhite, A"Watant City Attorney CONTRACT OF $AL L Dalby - Clfy of Lubbock buyer ___ sat€+r__ ___ r_ _ ,� Poo 0 a1,''F11,'?�3[i5 :'t;' ?1?5'ZJ42�u BECi<I WHITMIPE PAGE s�'_ EXHIBIT "A" to ContraCt of Sale EASEMENT FORM CONTRACT OF SALE Page T Deiby -City of Lubbock Buyer— Seilar _ — _—b�L Resolution No. 2009—RO500 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 rg eement"), Giles W. Dalby Trust #2, whose address is Elizabeth Dalby Elliott, whose address is Rebecca Dalby Whitmire, whose address is Charlcie Dalby Mosser, whose address is and Giles W. Dalby, Jr., whose address is (collectively hereinafter referred to as "Grantor") 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 13a' 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 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 City of Lubbock Easement Agreement Grantee_ Grantor—____ Pagel 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 $14,937.73 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 l(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 City of Lubbock Easement Agreement Grantee— Grantor.___`_ Paget 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 Ley lino. 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 City of Lubbock Easement Agreement Grantee— Grantor---- ® Page 3 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 Basement 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 tic -off and cut the fence adjacent to each H-brace. The Grantee shall then set temporary T-posts and string barbed wire City of Lubbock Easement Agreement Grantee— Grantor--- _ _ Page 4 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 Iocations 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 City of Lubbock Easement Agreement Grantee Grantor________ Pages 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. Grantee agrees that Grantee shall provide Grantor with a temporary access road (located within the Easement Area or Temporary Easement Area) in all places in which any existing road(s) (the "Impassable Roads)") of Grantor that are located within the Easement Area or Temporary Easement Area will become impassable due to construction of the Pipeline System so that Grantor will at all times have access to the areas of Grantor's property that were accessed by the Impassable Roads. Additionally, prior to completion of construction of that portion of the Pipeline System located adjacent to the Impassable Road(s), Grantee shall construct a permanent road to replace the Impassable Road and any temporary access road and, in those locations where the Impassable Road(s) were covered with material, whether gravel, asphalt, caliche or otherwise, Grantee shall cover the permanent road at the same depth with like material. Grantee shall use such permanent relocated road as a pipeline trail road (and shall not build another trail road within the same length of the Easement Area) and Grantor may use such road to access its property. U) Reseedini_. 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. City of Lubbock Easement Agreement Grantee— Grantor---- _ Page 6 (I) 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 CIty of Lubbock Easement Agreement Grantee_ Grantor_._,.— Pagel 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. (r) Existing Waterline. Grantor and Grantee acknowledge that there is an existing waterline which is contained within portions of the Easement Area and Temporary Easement Area. In such instances, upon commencement of construction within such portions of the Easement Area and Temporary Easement Area, Grantee shall replace such waterline with a new waterline of the same material and construction as the existing line so that Grantor's flow of water will not be interrupted for more than 24 hours and locate such new waterline along the outside edge of the Easement Area or Temporary Easeement Area. Grantor hereby grants Grantee permission to work outside the Easement Area and Temporary Easement Area to install the new waterline. (t) Existing Trap. Grantor and Grantee acknowledge that there is an existing cattle pen/trap ("Existing Trap") on Grantor's property portions of which may be contained within the Easement Area or Temporary Easement Area. Grantee shall (i) install permanent fencing around the Existing Trap in locations where the existing fence is removed or damaged, (ii) install gates (in accordance with Exhibit D) on the sides of the Existing Trap intersected by the Easement, and (iii) close all open trenches within the Existing Trap and otherwise comply with this Paragraph 4, in each case within seven (7) days after breaching the existing fence around the Existing Trap. City of Lubbock Easement Agreement Grantee— Grantor, _.___—_ ___ Page 8 S. 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. G. 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). City of Lubbock Easement Agreement Grantee_____ Grantor --_____, Page 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 ONE HUNDRED FORTY -NNE THOUSAND THREE HUNDRED SEVENTY-SEVEN AND 30/100THS Dollars City of Lubbock Easement Agreement Grantee_ Grantor__— Page10 ($149,377.30) for the grant of the Easement and the grant of the Temporary Easement, (ii) the sum of Not Applicable ($ NIA) 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 Not Applicable ($ NIA) 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 (iv) 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 I" 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. 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 City of Lubbock Easement Agreement Grantee_ Grantor____ Page11 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 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). City o€Lubbock Easement Agreement Grantee_ Grantor_____ Page 12 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. Indemnity Regarding Pollution. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold each Indemzutee 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 City of Lubbock Easement Agreement Grantee— Grantor--- Page13 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 unenforecability 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), City of Lubbock Easement Agreement Grantee_ Grantor_____ Page14 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: 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 City of Lubbock Easement Agreement Grantee Grantor , — ___ Page 15 Iong 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 Maieure. 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 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 Maj cure 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 1 City of Lubbock Easement Agreement Grantee_ Grantor_______ Page16 EXECUTED this day of , 2009 (the "Effective Date"). GRANTOR: GILES W. DALBY TRUST 92 By: Its:— ELIZABETH DALBY ELLIOTT REBECCA DALBY WHITMIRE CHARLCM DALBY MOSSER GILES W. DALBY, JR. GRANTEE: The City of Lubbock By: TOM MARTIN, .Mayor [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: Marsha Reed Chief Operations Officer City of Lubbock Easement Agreement Grantee_ Grantor____ J Page 17 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 2009, by Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on , 2009, by Notary Public, State of Texas Printed Name of Notary My commission expires: City of Lubbock Easement Agreement Grantee— Grantor----- Page 18 STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on Notary Public, State of Texas Printed Name of Notary My commission expires: 2009, by 2009, by 2009, by City of Lubbock Easement Agreement Grantee_ Grantor---_p Page19 STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on , 2009, 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 City of Lubbock Easement Agreement Grantee____ Grantor_____ Page20 Exhibit A Survey and Metes and Bounds Description of the Easement Area CityofLubbock Easement Agreement Grantee` Grantor_____`__-Page21 Resolution No. 2009-RO500 N 88.05'01" W 5308,9' EXHIBIT 'A' Page i cf 7 N 88" 05'01" W 5293,4' Permanent Easement Page t - 759-96 Rods 117,26 AcJ Page 2 - 81670 Rods 08.60 AcJ 61 ¢ Page 3 - 179.42 Rods (446 ACJ co N o Total-1757.38 Rods 09.94 ACJ Ln V') Total Temp,Corlat.l slnf.- 39,93 Aa s Lr u) cly �rGy,Jr. clot cw.tbray, Jr. eror ° � onfinues on Page 2 ° 0l.0GIC 5 G.N. i'i. f'. K. 1.3 , 12 �� 17 MKC, STONE PIPE 9ESDE 10 � N 880 06'24" W 5294.5' v � r' n N N 37 "1 G.W.Dalby,Jr.efaf V) 75926 Rods - Por=Aee t frsm r (17.26 Ac. •Permanent trot ESMIJ N FD, AXLE & STONE BY SANDERS 1948 0.7'EAST S 88.01'14" E 5308.4' •- Sel 112" Rod With Cap A legal description of even survey date herewith accompanies this survey plot. Su yad an the grow c ay, 2009 Registe�re-d•� r FesslonoiLond Surveyor (]aiet��..�. All Northings and hastings shown are rofect coordinates and may be converted to Texas StoFe Plane Coordinate North Central Zone, NAD83 by dividing by a surface adjustment factor of 1.0002396 4}I distances shown are surface distances. 9earings shown are grid bearings based on the Texas State Pkane Coordinate System, North Centrol Zone, 4AD83 Datum. This survey and ollinformaLion hereon Is for The exclusive use of CITY O� LUB80CK and shoAnot be copied or used except for the purpose tot which it is eYprocsly lurnished.lhis drowing and o1coples (pprliolor complete) shollbe returned to the owner upon demand. I 100 N W S �J . f J7.26�srr:f, FFD., 2" PPE36 Ln f 26 c-p iiry o McCrory Ud. 2 w` ° Vol. 2NPg. 196 ~` P.O.B. Y•7109823.41 X-1143319.72 G.w.0d1ty, Jr. of 0l C NTERUNE 0' EASEMENT SRC. & D157. CURV DATA 2 N 58° 3 •• W 58 .11' R- 57 00' • 29 .4 V I)E A- 28• 2'10" N • 3'4 " W 1076.36 5 R- 76.00- L- 394. 9' 0£LT A- 38. 17,33" 6 N W 201. 0 7 R- 575, 0' - 113 27' DELTA+ 11. 17'1 " AL 9 N 59.11'22" W 16821.671 1 R2 57$.00'L• 191.1l'OELTA• 19.02'37" et N D•0$`4S" W 42153' 1 - 575.00'L- 1 5.D6'DELTA• 17.2 '3 ' 1131 N 57• 5'22" W 10 215' .E:1'- 2000tREVISION. IPLAT DATE: 4-12-09 di: PARKHILL SMITH e, COOPER - CITY OF LUBBOCK ?N BY: B. BURROW I SURVEY DATE: 3-5 2003 'EYED BY, J,Ivi, MARTIN CHECKED BY, G. WILSON PAR10,d n FLE NO. 35,760 1 SHEET i OF 7 Mqprll-"�12 - Lim & IRS S1i�YdR .K. ST, S11rlr 202 • W83000. Tx, 79413 788-0420 • FAX t40i 792.1645 b+ _ N 88' 0 Cont1was on— � Pogo 3 55 � G.W. Dalby, Jr. 8101 It EXHIBIT 'A' Page 2 of 7 10 ....•.��..- .� - N. 88"' 05'43" W 5306.7' t— @ �:I 56 rn 10 G.W. Dolt , Jr. elal rn B1870 Rods - Permanera Esmt• (18,60 Ac. - PermoneW E50.) N 88- 05'01" W 5286, 7' 3 N 88° 05'01" W 5307 501625' � MKO.STON£ PIPE DESIDE O i. O G K 5 6. H.f� H. K. K° I I 6a f'e mnene Eas=W ` d 4 16 LO Cn a ' G.W. Dolby,JT.etal rn `ID 1 (;ENTERURE so, EASEMENT BR - & 04ST. CURVE DATA 14 N 57- 35.22" W 481,26' R- 575,00'L• 1 5.42 DELTA- 1 •30'17" 15 N 66106'38" W 20.42' 17 R• 575.00' L• 102.10' DELTA- 10' 10'2.7" 18 7 - 16'05" W 253.4 ' 19 R• 575 00' - 19D.93' D TA• 20 N ' 14'35" 447.71' i fi2°24'37" W 9J.24' 2 S 68' 44'20" W 65.77' 2N 76. 49'i7" W 1 , 24 • 192 B ' DEL TA- 19' 12'50" 25 N 7.36'27" W 177 4T 26 N 53' 2214" W t 1,72' 7 R- 3850,00'L- 440.50"DELTA- - 3'20" 28 N 59-5 134W 1201.26' 29 2.20'5s" W 5i8. 30 N 20' 0 " W 1044 71' 31 R- 3850.o0' 24.63' DEL A- 4' 49 5 ' AZ N 4150' 0" W 134'9 40' 33 R- 3850.00'L- 1 2,97' ETA- 2°25'31" 4 N 7.15-5 ' W 4352.3 ' G,W. Dalby. dr.etot °02'44" W 3.30/, N W E Q 4 ir7 rn ,^Cordlnues on Page l 4r- Set 1/2" Rod with Cap A iegof description of even survey dote herewith accompanies this survey plot. Swet+ed on the gro�� Registered (Plo+fessionol Land Surveyor.. All Northings and Eastings shown are project coordinates Dote�"«� and may be converted to Texas State Plane Coordinates, North Central Zone, NAD83 by dividing by a surface SCALEI1' - 2000' REVIS10N1 I PLAT DATE: 4- adjustment factor of 1.0002396 CLIENT: PARKHILL SMITH & COOPER - CITY OF LUBE All distances shown ore surface distances. DRAWN BY: B. BURROW I SURVEY DATE: 3-5 Bearings shown ore grid bearings based on the Texas SURVEYED BY: J.M, MARTIN CHECKED BY1 G. WILSC State Plane Coordinate System, North CentrolZone, FILE- PAR10-2.d n FILE NO. 35.760 ISHEET 2 NAD83 Datum. This surrey and ollinfarmalion hereon is for the exclusive use of ,1[ou C��+• CITY OF LUBBOCK 6Ls1 and shdinot be copied or used except for the purpose for which 5730 7t1U1 ST..5W1E 762 • L4J88aCK,1x 7C411 ii is expressly furnished. this drawing end all copies Iporlial or (806) 76e•0020 • FAx loos) 702-1645 romnWO ehnllhe —1 --A I.. 16,.--,-.nn r1--f EXHIBIT 'A' Page 3 of 7 71 75 N ss� 06`2�" w 5aes.�' 75 76 1 ,. .. 67 65 66GT ION 66 Ln �a &AIZZA GOUNTY, TEXAS (10 9 N N 8J'45'44' W 10 Ln R• 575.00' GI°-LG ,Jr.etol N L• 282.77' 1179.42 Rods - Permanent Esmt. DELTA- 287r9'35' (448 AG.- Permanerw EsmtJ L � 60'Teenn�)paorrary �. �Consf.Esmt. 40 AC, R• 575LU L- 284.22 N DELTA 67parrra>:erd Easement CJ 7 YWG OUT HERE CJ 54 55 Iv 8' 051431' W 5286.4' G.W.Ddlby,Jr.etal 55 56 A legal description of even survey dote herewith N occornponies this survey plot. Su y d on the gro o ch-r+Aay, 2009 W E Registered r fessionolLand Surveyor Date, 7 z S AlMorthings and Eastings shown are project coordinates Y• Set %2 Rod With Cap and may be converted to Texas State Mane Coordinates, North Central Zone, NAD83 by dividing by o surface SCALE:1" . 1000'I REVISION: IPLAT DATE: 4-13-09 adjustment factor of 1,0002396 CLIENT. PARKHILL SMITH & COOPER - CITY OF LUBBOCK A1I dislonces shown ore surface distonces. DRAWN BY: B. BURROW I SURVEY DATE; 3-5,2009 Bearings shown are grid hearings based on the Texas SURVEYED BY: J.M. MARTIN I CHECKED BY: G. WILSON State Plane Coordinate System, North Centrol Zone, r ILE: PAR10-3,d n IFILE NO. 35,760 SHEET 3 OF MAD83 Datum. This survey and uUnformatlon hereon is for the exclusive use of SIM to Mid IEC y ` r+ �Y 1.•. CITY OF LUBBOCK end shollnei be copied or used except for the purpose for which =0 701h 5T. Svc 202 • LLEGXN, Tk.724U It Is expressly furnished, this drawing and all copies (portial or 19D6) 7e8,0020 • FAX 18061702.1646 compfele) shoilbe returned to the owner upon demand. Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Sections 37,38,44,45,46,55 and 66, Block 5, G.H. & H. R.R, Survey, Garza County, Texas and saild pipeline centerilne being described as follows: Beginning at a 1/2" Iron rod with cap, Set on the East line of Section 38, Block 5, for the beginning of this description, from whence the Southeast corner of said Section 38 bears South 1653'35" West, a distance of 775.30 feet, said point of beginning having a project coordinate of Y = 7109823.41 and K 1143319,22; Thence North 59°OO'22" West, along the centerilne of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 2776.12 feet to a point; Thence North 58035'53" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 583.11 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 296.41 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 291,32'10"; Thence North 29,103143" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1076.36 feet to the beginning of a curve to the left? - Thence along thp,arc of a curve to the left and being the centerilne of said Sixty -Foot (50') wide permanent pipeline easement, an arc distance of 384.29 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 38ID17'33"; Thence North 67021'16" West, along the centerline of said Sixty -Foot (60) wide permanent pipeline easement, a distance of 21301.70 feat tb the. beginning of a curve to the left; - Thence along the arc of a curve to the left and being the centerline of said Slxty-Foot (60') wide permanent pipeline easement, an arc distance of 113.27 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 11017'13", Thence North 78038129" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 803.04 feet to a point; Thence North 59°11'22" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1883.67 feet to the beginning of a curve to the right; ♦�M H10-TECHLANDAND GPS SURVEYORS, AIC. 3330 74th St., Suite 202 • Lubbock, Texas 7941-3 (806) 788-0020 • Fax (806) 792-1646 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 191.11 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 191,02'37"; Thence North 40008'45" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 421,53 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 175.06 feet to a point for the end of this curve, said curve having a radius of 575,00 feet and a delta angle of 17°2637"; Thence North 57035`22" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1022.15 feet to a 1h" Iron rod with cap, set on the West line of Section 44, Block 5; Thence North 57a35'22" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 481.26 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 105.42 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 10030'17"; Thence North 68005'38" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 620.42 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 102.10 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 10010'27"; Thence North 78D16'05" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 253.42 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 190.93 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 1900131"; Thence North 591,14135" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, 'a distance of 447.71 Feet to a point; Thence North 621D24,37" West, along the centerline of said S1xty-Foot (60') wide permanent pipeline easement, a distance of 1093.24 feet to a point; U HIGH-TECH LAND AND US SURVEYORS, INC 3330 70th St„ Suito 202 • Lubbock, Texas 79413 (806) 788-0020 • Fax (806) 792-1646 Thence South 88Q44'20" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 65.77 feet to a point; Thence North 76049'17" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 122.33 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 192.82 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 19112'50"; Thence North 57°3627" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 177.47 feet to a point; Thence North 53°22114" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 181.72 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 440.50 feet to a point for the end of this curve, said curve having a radius of 3850.00 feet and a delta angle of 6°33'20"; Thence North 59055'34" West, along the centerline of said Slxty�Foot (60') wide permanent pipeline easement, a distance of 1281.26 feet to a point; Thence North 2020'56" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 518.22 feet to a point; Thence North 20000'28" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1044.71 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 324.63 feet to a point for the end of this curve, said curve having a radius of 3850.00 feet and a deity angle of 404952"; Thence North 24050'20" West, along the centerilne of said Sixty -Foot (601) wide permanent pipeline easement, a distance of 1349.40 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 162.97 feet to a point for the end of this curve, said curve having a radius of 3850.00 feet and a delta angle of 202531"; Thence North 27°15151" West, along the centerline of said Sixty -Foot (60') wide permanent plpeiine easement, a distance of 4352.30 feet to a }/2" iron rod with cap, set on the North line of Section 55, Block 5; HIGH-TECH LAND AND GPSSURVEYORS, INC 3330 70th St., Suite 202 • Lubbock, Texas 79413 (806) 788-0020 -lax (806) 792,1646 Thence North 27,115151" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 1297.49 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 284.22 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 28°19'17"; Thence Noah 55035'08" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 828.25 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 282.77 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 28010'36"; Thence North 83°45'44" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 267,72 feet to a 1/2" iron rod with cap, set on the West line of Section 66, Block 5, for the end of this description, whence the Southwest corner of said Section 66 bears South 1054'28" West, a distance of 1891.43 feet. Containing 1757.38 rods. (39.94 acres) The above described sixty foot (60� wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parailel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 39.93 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 Registered Mfesslonal land Surveyor Date: (' - HIGH41 CH LAND AND GPS SUR MORS, INC. 3330 70th St., Suite 202 . Lubbock, Texas 79413 (806) 7884020 • Fax (806) 792-1646 Resolution No. 2009—RO500 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 Observe all signs including pipeline markers. 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. City of Lubbock Easement Agreement Grantee— Grantor_____ Page22 Resolution No. 2009-RO500 Exhibit C Locations of Surface Pipeline Equipment City of Lubbock Easement Agreement Grantee_ Grantor---_� Page23 1�1 goy+��b � 4 $6m� J L r., z o •n 0 gg I- ADO 1 — CAM w' ..., _a cS �d �fiE��BYr:y%G+�#YX'LmL3.59CS�b6k�m�Y�kfwksxti�xpc:�vY�oo�a�:vrti=oa® a 66 99 C9 �d$ pO`SQ?�449?^1cS�p�E`9ffin�GYubua��'ZaG"�C�xoeR's�:Gv=e�ASaS:HA� �a�'S�' F.,� � � A tY� t»3��iirtf>Crr. �Cr rtrrr >Ar ri r rrrrtri 6 z pp y — �aR '�k 888d88&8888868�8�88B89�3888888888880;^rE 'S i i 'nqS Fe. cv? 898�F8 �g�2^ A A'�j'j ,¢,�^F" $ ��`'^��N�{'P� ��a PPO�DD SOOo��i S•SO��Ol30 tl�OS.�i00�a So�3aao5'db N J'' �YY4;;k�8888686888688��g6�8��8868$8888R8R8888^ P hr GrtY W LUBBOGN ,e sar.• P � rxo.nr> ,u xao LAKE ALAN HENRY A?ER SUPPLY PROJECT VINI � �a eawra�Cr> MIIHOL C S ^••^'•'r.".Yl;'S" i — GEWR 1:• ..N" r.ski! :.� „,,, c'r'. i-.�... 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Un HIM $111 11111 I II Ol lilt 111111111 1111 IN 111 TIM 111111111111111111111111111111 Resolution No. 2009—RO500 Exhibit D Gate Construction Detail and Specifications City of Lubbock Easement Agreement Grantee_ Grantor,-- _ _� Page 24 No Text Exhibit E Equipment Covered by Damage Payment under Paragraph 12(ii) City of Lubbock Easement Agreement Grantee_ Grantor___— Page25 Resolution No. 2009—RO500 Exhibit F Unrecorded Leases, Unrecorded Agreements, Unrecorded Deeds of Trust, and Unrecorded Easements City of Lubbock Easement Agreement Grantee — Grantor _ Page 26