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HomeMy WebLinkAboutResolution - 2010-R0104 - Contract 9441 M&M Enterprises, Inc. For Easement For Lake Alan Henry Project - 03_04_2010Resolution No. 2010-RO104 March 4, 2010 Item No. 5.8 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 M & M Enterprises, Inc., a Texas Corporation, located in Garza County, and all related documents. Said Contract for Purchase of Easement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council on ATTEST: CiP -0j Rebe, a Garza, City Secretary APPROVED AS TO CONTENT: I a.1 , &J— — - Marsha Reed, P.E., Chief Operation Officer Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Mitchell March 4th , 2010. e�7! /.ail/w�_ -- TOM MARTIN, MAYOR City Attorney Res Contract Purch of Pipeline Easement-M & M Enterprises 2 18 10 Resolution No. 2010-R0104 Contract: 9441 CONTRACT FOR PURCHASE OF EASEMENT This Contract For Purchase of Easement (the "Contract') is made on this 4th day of March , 2010 ("Effective Date"), by and between M & M Enterprises, Inc., a Texas Corporation (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 "Easemen ") 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 1 -PurchaseFjr,ice.r The Purchase Price to be paid to Seller for the Easement described herein is nPar i/Tri AX- Dollars ($LQ 33.40 (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 seven (7) business days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of this Contract. The Independent Contract Consideration is to be credited against the Purchase Price at closing, if Closing (as identified below) occurs. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Within sixty (60) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Buyer and to Seller and to Seller's legal counsel a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by West Texas Title Company ("Title Company") setting forth its exceptions to title ("Exceptions") and copies of any such Exceptions. 3.02 Survey. Buyer, at Buyer's sole cost and expense, has previously caused a current on the ground survey for the Property (the "Survey") to be delivered to Buyer. Within fifteen (15) days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Seller a copy of the Survey. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of ten (10) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the Items (" b ections"), 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. (1) waiving the unsatisfied Objections by, and only by, notice in writing to Seller within five (5) calendar days after the expiration of the cure period, in which event those Objections shall become Permitted Exceptions; or terminating this Contract by notice in writing and receiving back the Independent Consideration, in which tatter 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. 3.06 Title Policy. At Closing, Buyer, at Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has an easement pursuant to the Easement Agreement over and across the Easement Area, subject only to the Permitted Exceptions and the terms of the Easement. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows: (i) if available based upon the Survey, the survey exception may be amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be bome solely by Buyer, of any required additional premium); (ii) no exception will be permitted for "visible and apparent easements' or words to that effect; (Ili) 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. N' Atwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may objeci to any Exceptions it deems material, in its sole discretion. 3.06 Other Remedies. Notwithstanding anything contained in this Contract to the contrary, if Buyer determines that the easement intended to be conveyed to Buyer and described herein and in the Easement Agreement, or any part thereof or undivided interest therein, should be acquired by judicial procedure to procure good title, then Buyer and Seller hereby stipulate that (i) an agreement, in the same form as the Easement Agreement, shall govern the terms of any easement obtained by judicial procedure, and (ii) the ultimate award to the Seller for the easement obtained by Buyer by judicial procedure, shall be the same as the consideration stated in Section 2.01 above and in Paragraph 12 of the Easement Agreement, but should the Seller own a lesser interest in the Easement Area or Temporary Easement Area intended to be conveyed to Buyer and described herein, such award shall not exceed that portion of the consideration stated in Paragraph 12 of the Easement Agreement which the value of such lesser interest of Seller bears to the value of the entire Easement Area or Temporary Easement Area described herein. This Section 3.06 shall survive any termination of this Contract. ARTICLE IV COVENANTS AND AGREEMENTS 4.01 Covenants and Agreements of Seller. Seller represents and warrants that to Seller's knowledge and subject to the Permitted Exceptions Seller has good and indefeasible title to the Easement Area and further covenants and agrees with Buyer as follows: (a) Seller represents that to the best of its knowledge Exhibit F to the Easement Agreement, when prepared and delivered by Seller, will set forth a list of (i) all unrecorded agricultural leases and agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject property, and (iii) all unrecorded easements granted by Grantor which encumber the subject property. Seller will provide to Buyer within thirty (30) days after Seller's receipt of a copy of the Title Commitment, copies of all documents to be described in the Easement Agreement on Exhibit F that are not reflected in the Title Commitment. Buyer shall have ten (10) days after receipt of such documents to object to any matters set forth therein that are not contained in the Title Commitment. Thereafter, Buyer and Seller shall have the same objection and cure rights with respect to such objections as are set forth in Section 3.04. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall not sell, assign, or convey any right, title or interest whatsoever in or to the Easement Area, or create any lien, encumbrance, or charge thereon. ARTICLE V CLOSING 5.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company. The Closing Date (herein sometimes called), shall be on the earlier to occur of (i) the date that is ninety (90) days after the Effective Date; or (ii) such earlier date as mutually agreed on by Seller and Buyer. However, the closing date as identified herein may be extended by either party for a period of thirty (30) days in order to comply with the time limits contained in Article III and Article IV. 5.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to the Title Company the following items: (i) An Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Seller and acknowledged; and (b) Buyer. At the Closing, Buyer shall deliver the Title Company, or obtain for itself, the following items: (i) The sum required by Section 2.01 in the form of immediately available funds to be paid immediately to Seller; (ii) The Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by Buyer and acknowledged; and (iii) The Title Policy in the form specified in Section 3.05; Both Buyer and Seller shall deliver other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. ARTICLE VI DEFAULTS AND REMEDIES 6.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Seller fails to meet, comply with or perform any covenant, agreement, or obligation on Seller's part required within the time limits and in the manner required in this Contract, or (ii) Seller fails to deliver at Closing, the items specified in Section 5.02(a) of this Contract for any reason other than a default by Buyer under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If 6.01(a) occurs, Buyer may: (1) terminate the Contract and receive the Independent Consideration as Buyer's sole and exclusive remedy, or (ii) enforce specific performance. 6.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract on the occurrence of any one or more of the following events: (i) Buyer fails to meet, comply with or perform any covenant, agreement, or obligation on Buyer's part required within the time limits and in the manner required in this Contract, or (ii) Buyer fails to deliver at Closing, the items specified in Section 5.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedies. If 6.02(a) occurs, Seller may: (i) terminate the Contract and retain the Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific performance. ARTICLE VII MISCELLANEOUS 7.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: M&M Enterprises, Inc. Joe L. Murfee, III, Registered Agent 1919 Avenue Q Lubbock, TX 79405 Telecopy: Copies to: For Seller: John C. Cox, Esq. K&L Gates, LLP 1717 Main, Suite 2800 Dallas, Texas 75201 Telecopy: (214) 939-5849 BUYER: Attn: Dave Booher City of Lubbock 1625 13th Street Lubbock, Texas 79401 Telecopy: (806)775-3074 For Buver. Attn: Marsha Reed City of Lubbock 1625 13th Street Lubbock, Texas 79401 Telecopy: (806)775-2051 The parties may change their address effective in the same manner as other notices provided hereunder. 7.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN THE COUNTY WHERE THE PROPERTY IS LOCATE",). 7.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Easement, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought 7.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 7.05 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. 7.06 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 7.07 Agreement in Lieu of Condemnation. This Contract and the Easement Agreement are entered into by Buyer and Seller as a settlement and compromise lieu of condemnation and the consideration set forth herein and the covenants and agreements of the Buyer set forth in the Easement Agreement are given to Seller in compensation for the acquisition of the Easement in accordance with the Easement Agreement. This Section 7.07 shall survive Closing and the execution and delivery of the Easement Agreement. 7.08 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City,¢;,3uncil of the City of Lubbock to the Deputy City Manager of Buyer, or his designee. When the context requi;.ns singular nouns and pronouns include the plural. The undersigned represent and warrant their respective authority to execute this contract, and to convey the inierest in property described herein. eZ�iJ Executed by Seller on the day SELLER: M & M ENTERPRISES, INC., a Texas orporation By. Its: Executed by Buyer on the 4th day of March 2009. BUYER: CITY OF LUBBOCK TOM MARTIN.(, MAYOR ATTEST: cQ -a�� , 9--� Rebeccla Garza, City Secretary APPROVED AS TO CONTENT: MAI'� m 14 a-- a-d Ma s ed, Chief perations Officbr Dave Booher, Right -of -Way Agent APPROVED r the City of Resolution No. 2010-RO104 Exhibit A to Contract of Sale EASEMENT AGREEMENT SEE ATTACHED Resolution No. 2010-RO104 EASEMENT AGREEMENT STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF Subject to the terms and conditions set forth in this Easement Agreement (this "Agreement'), M & M Enterprises, Inc., a Texas Corporation ("Grantor') whose address is P.O. Box 10313, Lubbock, TX 79408,-3313, for and in consideration of the covenants contained herein and other good and valuable consideration to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 13t' Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, hereby grants unto Grantee an easement (the "Easement') subject to the terms of this Agreement through, over, under, upon, across and within the sixty foot (60') wide area described by metes and bounds on Exhibit A (the "Easement Area") situated in Garza County, Texas: The Easement shall be for the survey, construction, installation, operation, inspection, maintenance, replacement, repair, and removal of (i) a single underground pipeline located within the Easement Area for the transportation of fresh water (the "Pipeline"), and (ii) the following equipment and appurtenances related to the Pipeline and situated within the Easement Area: conduits, drain (blow -off) valves, valve boxes, meter boxes, vents (air valves), manholes, manhole covers (with post around manholes), corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep well anode stations with power supplies, flow meters, system communication lines (including, but not limited to, fiber optic lines), splice boxes, and corrosion control equipment, corrosion monitoring equipment and other equipment and facilities related thereto (collectively, the "feline 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 "Tempoma 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 •. astruction 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 continence on the Anticipated Pipeline Completion Date and the second extension to commence on the second anniversary of the Anticipated Pipeline Completion Date; provided, however, that the Temporary Easement shall in any event terminate and expire upon the completion of the Pipeline System within the Easement Area and thereafter be of no further force and effect.. In order to exercise its right to extend the Temporary Easement as aforesaid, not later than thirty (30) days prior to the Anticipated Pipeline Completion Date (or the second anniversary of such date if the Temporary Easement has already been extended) Grantee shall deliver to Grantor written notice that it intends to extend the Temporary Easement and pay to Grantor of the sum of $�**1_0% of the amount in paragraph 126) below** 1 for each requested two (2) year extension. Upon request of Grantor, after completion of that portion of the Pipeline System situated within the Easement Area, or the termination and expiration of the Temporary Easement, Grantee shall execute and deliver to Grantor a release of the Temporary Easement in a form acceptable for filing. The Easement and Temporary Easement are specifically made by Grantor and accepted by Grantee subject to the following terms, covenants, obligations and conditions: 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 I(a) (il provided that after completion of construction of the Pipeline System situated within the Easement Area, and except in cases of emergency or repair, on cultivated land ingress, egress and regress shall be permitted in, but limited to, the use of then -existing turn rows, and (b) the Temporary Easement Area (during the term thereof) for the sole purpose of: (i) survey, construction and installation of the Pipeline and Pipeline Equipment; (ii) ingress, egress and regress for people, material, and equipment along, over and across the Temporary Easement Area to accomplish the foregoing, and (c) during the term of the Temporary Easement, the Easement Area and the Temporary Easement Area may be used for the temporary storage of materials and equipment (including pipe for the Pipeline and Pipeline Equipment) (collectively, the "Permitted Uses"). Grantee shall use the Easement Area and the Temporary Easement Area (for the term thereof) for the Permitted Uses, and activities reasonably related thereto, and for no other purposes or uses. 2. Legal Requirements: No Interference. Grantee covenants and agrees that its use of the Easement Area and Temporary Easement Area, and its operations conducted thereon, shall at all times comply with this Agreement and all material applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all material environmental laws, orders, rules, regulations, standards, licensing and permitting (the "LegLal Requirements") and the safety guidelines shown on Exhibit B attached hereto and made a part hereof. Further, Grantor and Grantee shall each conduct their activities in such a manner as to not unreasonably interfere with, or cause disruption to, the other's business, operations and property or those of a third party entering or crossing the easement. 3. Due Care. Grantee covenants and agrees to construct the Pipeline System, and to perform its obligations under this Agreement, in a prudent manner and with due professional care for Grantor's property, business and operations, and according to standard industry practices. 4. Construction Specifications. Grantee covenants and agrees to construct, maintain, repair and replace the Pipeline System in the Easement Area in accordance with the following: (a) Minimum Pipeline Depth. The Pipeline System shall be so located or shall be buried at a sufficient depth so it will not interfere with farming activities currently in practice and cultivation of the soil at the soil levels as they exist at time of execution of this Easement and, in any event, the Pipeline shall be buried at such depth as will allow a minimum coverage of forty-eight inches (48") for current ranchland and a minimum coverage of sixty inches (60") for current farmland. Any Pipeline Equipment that will be installed above plow depth on cultivated lands shall only be installed at the locations identified on Exhibit C or, if no locations are specified on Exhibit C, at such other locations that will not interfere with farming activities and which are approved in writing by Grantor, such approval not to be unreasonably withheld. (b) Ditching. Unless determined by an outside engineer to be impractical due to the existence of rock or material elevation change, all ditching shall be in accordance with the "double ditch" method whereby the top eighteen inches (18") of soil (the "Top Soil") shall be removed from the Pipeline trench (the "Trench") and stored in a pile that is segregated from all other material and debris, and the remaining soil (the "Bottom Soil") shall be removed from the Trench and stored in a pile that is segregated from the Top Soil. When the Trench is refilled after the Pipeline has been laid and the Pipeline Equipment installed, the Bottom Soil shall be placed in the trench first leaving room to fill the uppermost eighteen inches (18") of the Trench to be filled with Top Soil. Top Soil shall be used to fill the remainder of the Trench. Any Bottom Soil remaining after filling the Trench shall (i) on cultivated lands, be removed from the Easement Area and disposed of off of the property of Grantor, and (ii) on uncultivated lands, shall be spread over the Easement Area and Temporary Easement Area in a manner acceptable to Grantor and that will not restrict or limit the re -growth of natural vegetation. Rocks or other debris arising in connection with clearing the Easement Area and ditching the Trench for the Pipeline System shall be removed as set forth in Paragraph 4 N below. As stated above, single ditching shall be allowed in all areas where "double ditching" is impractical (as determined by an outside engineer) due to the existence of rock or material elevation change. (c) Trench Leveling. Within uncultivated areas, upon completion of construction of the Pipeline System, excess material may be mounded over the Trench and covered with Top Soil; provided that the mound will be limited to a maximum of one foot (1') in height and will be graded to allow natural drainage. Within cultivated areas, upon completion of construction of the Pipeline System, the Easement area shall be leveled to grade (or as otherwise agreed to by Grantor in writing). In all instances the Easement Area and Temporary Easement Area shall be cleaned up in a professional manner. (d) Maximum Open Segments. The construction, installation, maintenance and repair of the Pipeline System shall be performed in segments so that there is never more than one thousand feet (1000') of open Trench at any one time and no open segment shall be open for more than seven (7) days; provided, however, that excavations for pipeline appurtenances and tunnel/bore crossings may remain open for up to thirty (30) days. (e) Compaction. Grantee shall mechanically compact all fill material to prevent any subsidence. To the extent there exists or hereafter arises any subsidence or erosion arising in connection with the construction, installation, maintenance or repair of the Pipeline System, Grantee shall refill with top soil, re - compact and re -grade all affected areas and take any further action reasonably required to return the surface to a substantially similar, or better, condition than adjacent undisturbed areas and prevent future subsidence or erosion. In furtherance of the foregoing, Grantee shall inspect the Pipeline at an interval of (i) six months, (H) twelve months, and (iii) eighteen months after initial Pipeline System construction, and promptly refill and re -compact any subsidence or erosion existing at such times in order to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and take any further action reasonably required to prevent future subsidence or erosion. The inspections periods set forth above are not intended to be a limitation on Grantee's ongoing duty to fill, compact and maintain the grade of the land around the Pipeline. Accordingly, in the event that Grantor at any time discovers any subsidence or erosion after the installation of the Pipeline (whether before or after expiration of the inspection periods provided for above), Grantor may provide notice of such subsidence or erosion to Grantee. Within thirty (30) days' after Grantee's receipt of such notice, Grantee shall commence and thereafter diligently and without unreasonable delay refill with top soil, re -compact and re -grade all affected areas and take any additional action as may be reasonably required to return the affected area to grade and to a substantially similar, or better, condition than adjacent undisturbed areas and to prevent future subsidence or erosion. (f) Disc Plowing. if requested by Grantor, after completion of construction of the Pipeline the top 6 to 12 inches of the Easement Area and Temporary Easement Area through cultivated fields shall be disc plowed to loosen up soil for farming operations. (g) Gates. Grantee shall install gates at each existing fence to be crossed within the Easement Area and the Temporary Easement Area in order to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, Grantee will set H-braces on the outside boundaries of the Temporary Easement and Easement Area (e.g. 120 feet apart) then tie -off and cut the fence adjacent to each H-brace. The Grantee shall then set temporary T-posts and string barbed wire along the 120 foot opening and install a temporary barbed wire gate or gates, as needed. At the time of construction through the affected area, the Grantee will remove the temporary T-posts so as to permit construction activities. At night, Grantee will install temporary fencing. Upon completion of the subject Pipeline section, Grantee will install interior H-braces and a permanent 14 foot gate(s). Grantee will then install permanent T-posts and barbed wire to connect the H- braces. Fences, gates, gate posts and corners installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made apart hereof and shall be installed with professional care and according to standard industry practices. All gates installed by Grantee shall be made of painted steel pipe. Except during construction as described above, all fence gates on the exterior of Grantor's property shall be closed and locked at all times, unless Grantor in its sole discretion consents to temporary cattle guards or other arrangements. All gates on the interior of Grantor's property shall be left as found. All cattle guards on the exterior of Grantor's property shall be closed and locked at night unless otherwise requested by Grantor. After construction, Grantee shall put a lock on all gates and Grantor may install its own lock on such gates; provided, however, that at all times Grantor and Grantee shall have full and complete access to the Easement Area. (h) Debris Removal. Grantee covenants and agrees that at Grantee's sole cost and expense any and all debris materials of any kind arising in connection with the construction, installation, operation, inspection maintenance, replacement, repair and removal of the Pipeline System, including trash, trees, timber, wood, bushes, shrubs and brush, and other debris materials (collectively, "debris"), shall be removed by Grantee from Grantor's property and disposed of properly so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Further, all rocks and rubble arising in connection with the construction, installation, operation, inspection, maintenance, replacement, repair, and removal of the Pipeline System will be removed from Grantor's property so as to make the surface substantially similar to, or better than, adjacent undisturbed areas. Notwithstanding the foregoing, Grantee and Grantor by mutual agreement may determine that (i) Grantee may shred or mulch trees, timber, wood, bushes, shrubs and brush and scatter such debris over Grantor's property, (ii) Grantee may burn trees, timber, wood, bushes, shrubs and brush, (iii) Grantee may store or scatter rocks and rubble at locations designated by Grantor, or (iv) any other reasonable method to dispose of trees, timber, wood, bushes, shrubs, brush, rocks and rubble. If any trees, timber, wood, bushes, shrubs and brush are burned on site, the Grantee shall maintain constant watch over burn piles with adequate firefighting equipment on site. Grantee further agrees that neither Grantee nor its employees, contractors, agents nor representatives will burn any trees, timber, wood, bushes, shrubs or brush cleared from the Easement Area or the Temporary Easement Area during bum bans designated by county officials. (i) Temporary Crossings. During construction of the Pipeline System, crossovers shall be installed by the Grantee over the Trench to provide access for Grantor (and Grantor's personnel, equipment and livestock) over the Trench to and from Grantor's adjacent property (i) over all existing paved or unpaved roads, (ii) for livestock (at no less than 500 foot intervals), and (iii) at such other locations as are reasonably designated by Grantor. Further, Grantee may, at Grantee's option, construct temporary fencing near any open hole or trench. 0) Reseedina. If any of the Easement Area or Temporary Easement Area consists of grassland, Grantee shall, using the recommended procedure (either via drill or broadcast), plant a native (e.g. native to the local area) seed mix of grass and forbs selected by Grantor but subject to reasonable availability. (k) Existing Terraces; Damage to Adjacent Property. (i) Terraces. Existing terraces in the Easement Area and Temporary Easement Area will be replaced upon the backfill of the trench excavated in connection with the construction of the Pipeline System. In the event that the breach of any existing terrace results in any damage to Grantor's adjacent property or the breach of any down grade terraces (whether or not within the Easement Area or the Temporary Easement Area), Grantee shall repair any such damage and return the surface of affected areas to a condition substantially similar to, or better than, adjacent undisturbed areas. (ii) Damage to Adjacent Pronerty. 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. 0) Diversions,• Terraces, Stream Beds. Grantee shall install water diversions and terraces where necessary or appropriate in order to divert water away from excavated areas, to prevent erosion and to permit the natural flow of water that existed prior to construction of the Pipeline. Further, where the Easement Area crosses any wet or seasonal stream beds, all Permitted Uses shall be conducted in a recognized manner to protect said stream beds and to prevent erosion (m) Blasting. Prior to blasting within the Easement Area, Grantee will notify Grantor. However, no blasting will be permitted within five hundred feet (500') of any existing buildings, pipelines or wells; provided, however, that Grantor shall provide written disclosure of the location of any such improvements that are located underground before such blasting. (n) Trail Road. The pipeline trail road shall not exceed twelve feet (12') in width. The trail road shall be constructed, repaired and maintained in a manner consistent with Grantee's needs and purposes; provided, however, such trail road shall include culverts and water diversions where appropriate to prevent washouts and erosion. Grantee shall level or fill all ruts and washouts and otherwise maintain the trail road on a reasonable basis. Grantor shall have use of such road within Grantor's property so long as Grantor's use does not unreasonably interfere with Grantee's use of the Easement Area and Temporary Easement Area. After completion of the construction of the Pipeline System and except in cases of emergencies, in order to avoid ruts and washouts, Grantee and Grantor shall use reasonable efforts to avoid the use of the trail road when wet. (o) Necessary Temporary Use. Grantee shall have the right to use Grantor's property located immediately adjacent to the Easement Area and Temporary Easement Area for the following: (i) On rangeland, detouring around natural impassable impediments within the Easement Area or Temporary Easement Area such as canyons, large boulders or large trees; or (ii) the repair and removal of equipment or vehicles stranded within the Easement Area or Temporary Easement Area, but only to the extent is there not sufficient area within the Easement Area and Temporary Easement Area to permit such repair and removal. Except as provided in this Paragraph 4(o), Grantee (and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, or any employee or invitee of any of them) shall not at any time go upon the property of Grantor outside of the Easement Area and Temporary Easement Area. To the extent that any such incursion upon the lands of Grantor adjacent to the Easement Area and Temporary Easement Area results in any damage to such lands, Grantee shall be liable for such damage and in any event covenants and agrees that the affected areas shall be returned to the condition that is substantially similar to, or better than, adjacent undisturbed areas. (p) Staking of Easement. Prior to commencement of construction of the Pipeline System, Grantee shall stake the exterior boundaries of each side of the combined Easement Area and Temporary Easement Area (e.g. the parallel lines, 120 feet apart, that mark the outside boundaries of the combined 60 foot Easement Area and 60 foot Temporary Easement Area). Such boundary shall be staked with clearly visible, above ground markers so that all parties can easily view the boundary of the easements. Such markers shall be maintained until completion of construction of the Pipeline System. (q) Tree Grubbing. Upon commencement of work on the construction of the Pipeline System (and prior to trenching), Grantee shall grub (using an excavator modified to grub mesquite) all mesquite within the Easement Area and shall also grub any mesquite that has been destroyed, damaged, bladed, or cut within the Temporary Easement Area. At its option Grantee may grub the entire Temporary Easement Area. All debris arising as a result of grubbing activities will be disposed of in accordance with Paragraph 4(h) above. Grantor acknowledges that Grantee is not liable for any re -growth of vegetation after any tree grubbing identified in this ParagMh 4 (g) or after any double ditching as identified in Paragraph 4 (b) and that re -growth of vegetation will occur over time. 5. Cure Period. In the event that Grantee is in violation of any of the terms of this Agreement, Grantor shall give written notice of, and an opportunity to cure such violation to Grantee. Grantee covenants and agrees within thirty (30) days of receipt of such notice to commence to cure, and thereafter diligently and without unreasonable delay pursue to cure, such violation; provided, however, that the cure of any subsidence or erosion will be completed within one hundred and twenty (120) days after receipt of such notice to commence to cure. 6. Record Drawings To Be Provided to Grantor. Upon completion of the construction of the Pipeline System, Grantee shall, at Grantee's sole cost, provide to Grantor record drawings showing the location within the Easement Area of the Pipeline and each item of Pipeline Equipment. 7. Abandonment of Easement. Grantee may abandon the Pipeline System solely by an ordinance adopted by the City Council of The City of Lubbock, Texas (or any successor governing body of The City of Lubbock Texas) that authorizes the abandonment of the Pipeline System. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Easement Area is located. If Grantee should abandon the Pipeline System as aforesaid, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns, and title to the Pipeline System located within the Easement Area shall revert to Grantor, its successors and assigns and Grantor may, at its option, remove, dispose of and/or sell any pipe or Pipeline Equipment within the Easement Area. 8. Easement Term. The "Easement Term" is hereby defined as the period of time beginning with the Effective Date (hereinafter defined) and continuing until such time that the Pipeline System is abandoned by Grantee as provided in Paragraph 7 above. 9. Covenant to Maintain Pipeline. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, exercise due care and diligence in the use of the rights and privileges herein granted and keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement Area in good order, condition and repair and free of all debris following any work related to Permitted Uses on the Pipeline System. 10. Permits. Grantee shall be responsible for obtaining all permits necessary for Permitted Uses within the Easement Area and the Temporary Easement Area. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality relating to the Pipeline System and this Agreement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 11. Additional Uses. Subject to the limitations set forth in this paragraph, the Easement is non-exclusive and Grantor shall at all times have the right to (i) use and enjoy the Easement Area for any purpose not specifically prohibited herein; (ii) grant easements and rights of way over, under, upon, across and within the Easement Area to such persons as Grantor deems proper; (iii) construct and maintain improvements upon the Easement Area; and (iv) construct and maintain irrigation systems (including drip and overheard irrigation systems) and components and water distribution lines to cultivate and service Grantor's property (including the Easement Area), provided, however, (A) no buildings or reservoirs may be constructed upon the Easement Area, (B) improvements (other than drip irrigation lines and overhead irrigation equipment) may not parallel the Pipeline within the Easement Area . (C) all power lines, pipelines (other than drip irrigation lines and overhead irrigation systems), and telephone and other telecommunication lines must cross the Easement Area at no less than a 45' (forty-five degree) angle, (D) underground power lines and any metallic pipelines (excluding irrigation water lines and water distribution lines used to service Grantor's property) must have a minimum separation of two feet (2') from the Pipeline and must meet industry standards in order not to adversely affect or damage the Pipeline, and (E) fences constructed by Grantor within the Easement Area must have gates installed so that Grantee at all times has access over and across the Easement Area. In the event that Grantor determines to construct (or grant the right to any third party to construct) improvements within the Easement Area that are not addressed above, Grantor shall provide not less than thirty (30) days prior written notice to Grantee during which time Grantee may have the proposed improvements analyzed by its outside engineers. if during such thirty (30) day period Grantee provides to Grantor a detailed analysis of why the proposed improvements will adversely affect the Pipeline or Pipeline System, Grantor shall not construct such improvements until such time as Grantor and Grantee's engineers agree upon a methodology for the construction of such improvements that will not adversely affect the Pipeline, such agreement not to be unreasonably withheld by either Grantor or Grantee. Grantee and Grantor will at all times use their good faith efforts to accommodate the needs and activities of one another. Grantee covenants and agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not unreasonably interfere with or endanger the operations or integrity of the Pipeline System. Grantee acknowledges and agrees that if the Easement Area is subject to one or more oil and gas leases in existence as of the Effective Date of this Easement, or if Grantor does not own the minerals under the Easement Area, Grantor does not have control over and is not responsible for, or liable for, compliance (or non-compliance) with this Paragraph 11 by any oil and gas lessee or mineral owner(s). 12. Compensation for Grant of Easement. As complete consideration for the execution and delivery of this Agreement by Grantor, contemporaneously with the execution hereof by Grantor the Grantee agrees to pay to Grantor (i) the sum of Eighty - Five Dollars ($85.00) per rod for a total of Ten Thousand Thirty -Three and 40/100ths Dollars ($10,033.40) for the grant of the Easement and the grant of the Temporary Easement, (ii) the sum of ($ ) for damage to, or the replacement of, machinery and equipment (including irrigation systems and equipment) and other personal property specified on Exhibit E, and (iii) the sum of ($_ for damage to crops. In the event that as a result of the time of year in which construction of the Pipeline will occur Grantor (or its lessee) will suffer crop losses for two consecutive years, prior to commencement of construction (or, if construction has already commenced, but was delayed or extended, prior to continuation of construction) Grantee shall pay to Grantor an additional sum for crop losses in the amount specified in item (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 l' 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 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). 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 Indemnitee harmless from and against all Covered Losses of whatsoever nature arising from pollution or contamination emanating from the Pipeline System (the "Grantee pollution liabilities"); provided, however, that "Grantee pollution liabilities" shall exclude any pollution liabilities arising from any condition existing before the effective date of this Agreement. Grantor hereby releases Grantee from and against all Covered Losses of whatsoever nature arising from (i) pollution emanating from the property and equipment of Grantor, (ii) any condition existing before the Effective Date, (iii) pollution or contamination migrating or having migrated on, under, or to the Easement Area from any other location, and (v) the possession, occupation or use by Grantor (or any third party under rights granted by Grantor) of Grantor's property. 18. Insurance. During the construction and installation of the Pipeline System, Grantee shall maintain, or cause its primary contractor to maintain, comprehensive generally liability insurance in the amount of $1,000,000 and umbrella liability insurance in the amount of $2,000,000, covering "all risks" associated with the Permitted Uses of the Pipeline during construction and installation of the Pipeline System. Upon request Grantee shall provide a copy of such policies, and all renewals and replacements thereof, to Grantor. 19. Easement Only. It is understood and agreed that this Agreement is not a conveyance of the fee estate for any of the Easement Area, but is only an easement through, over, under, upon, across and within the Easement Area and the Temporary Easement Area (for the term thereof). 20. Binding_ Agreement, Assigpment. The provisions of this Agreement shall be binding upon and inure to the benefit of Grantor and Grantee and their respective successors, heirs and assigns; provided, however, Grantee shall not assign this Easement without the prior written consent of Grantor which consent shall not be unreasonably withheld. 21. Final Agreement. This Easement and the Exhibits attached hereto contain the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. Each Exhibit attached hereto shall be a part of, and incorporated into, this Agreement. 22. Unenforceable Provisions. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 23. Notices. Any notices or demands provided to be given herein by the parties shall be in writing and sent by facsimile or email (if a facsimile or email address is provided below) or mailed by certified mail or hand delivered to the other party at the address set forth below. In addition, telephone notices described in Paragraph 26 below shall be permitted to the telephone numbers set forth below. Notice of any breach of this Agreement must be in writing and mailed by certified mail or hand delivered to the other party at the address set forth below. Each party may rely on the addresses and contact information set forth below until changed in accordance with this Agreement. If Grantee determines that Grantor has conveyed the subject property without providing contact information for the new owner, Grantee may rely on the records of the local appraisal district. Either party may change its contact information for notices to it by written notice to the other party. Any notice or demand shall be deemed to have been received the earlier of (i) three (3) days after the date of mailing, (ii) the date of actual delivery as shown by the addressee's certification or registry receipt. or (iii) the date of hand delivery. Grantee shall provide and maintain a person for emergency contact who is available at the below telephone (or such different phone number as set forth in notice from Grantee to Grantor). Grantee: The City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Facsimile: (806)775-2051 Email: MReed@mail.ci.lubbock.tx.us Contact Person: Marsha Reed Emergency contact: Emergency phone number: Grantor: M & M Enterprises, Inc. P.O. Box 10313 Lubbock, TX 79408-3313 Facsimile: Email: Contact Person: Phone number: �} Cell number: (__) 24. Access Notice. Telephonic notices are acceptable for notice of emergencies and for inspections of the Easement Area, however, with regard to notices of inspection if the contact person cannot be reached by telephone, written notice must be provided. Except in the event of emergencies, after completion of construction of the Pipeline the Grantee shall provide at least 24 hour prior telephonic notice to Grantor prior to accessing the Easement Area. Voice mail messages shall not constitute notice hereunder. 25. Notice to Future Users. Grantor and Grantee agree and hereby give notice to any oil, gas, mineral, water, wind or energy lessee or grantee acquiring (after the Effective Date) any interest overlying or underlying the Easement Area, that Grantee will be operating the Pipeline System and conducting Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted in the vicinity of the Easement Area which would unreasonably interfere with the operations or integrity of the Pipeline System. Further, to the extent Grantor owns the oil, gas and other minerals under the Easement Area, Grantor hereby waives the right to use the surface of the Easement Area for the drilling of any oil or gas wells subject, however, to the rights of any lessee under any oil, gas and other mineral lease in existence as of the Effective Date. 26. Mineral, Water Reservation. Grantor reserves and excepts from this Easement and retains for Grantor and Grantor's successors and/or assigns, all rights to explore for, to drill and produce wind, water, oil, gas and other minerals of every kind and description underlying or situated beneath the Easement Area by any means whatsoever, including wells or mines directionally drilled from surface locations on nearby lands so long as no surface operations are performed on the Easement Area and so long as such operations do not interfere with or endanger the operations or integrity of the Pipeline System. 27. References to Grantee. Where appropriate in this Agreement, references to Grantee in connection with the performance of Permitted Uses shall include Grantee and its elected officials, officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 28. Limitation on Damages. Neither party shall be liable to the other party or any of such party's affiliates in any action or claim including without limitation, any action or claim for indemnity, for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 29. Force Majeure. When a time period is specified herein for the performance by either party of its obligations hereunder (except for the payment of money), such period shall be extended by the period that such party's performance is prevented by reason of windstorm, hurricane, tornado, flood, earthquake or other acts of God or by war, riot, insurrection or workers' strike or by the unavailability of materials (each, an act of "Force Majeure"), however, in order for either party to take advantage of the extension provided above for an act of Force Majeure, such party must give written notice to the other party within five (5) days of the commencement thereof and must immediately commence performance of its obligations when the effect of the Force Majeure event has subsided. TO HAVE AND TO HOLD said Easement, together with all and singular, the rights and appurtenances thereto in anywise belonging unto Grantee, its successors and assigns during the Easement Term, subject to the terms and conditions hereof. The effective date of this Agreement (the "Effective Date") shall be the date this Agreement is last signed by Grantor or Grantee. [ Signatures of the Parties on Next Page EXECUTED this day of , 2009 (the "Effective Date"). GRANTOR: M & M ENTERPRISES, INC., a Texas Corporation By: Name: Title: 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 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 , in his capacity as ENTERPRISES, INC., a Texas Corporation. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on MARTIN, Mayor. 2009, by of M & M 2009, by TOM Notary Public, State of Printed Name of Notary My commission expires: Exhibits: A - Metes and Bounds Description of Easement Area B - Pipeline Right -Of -Way Safety Guidelines C e 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 Exbibit A Survey and Metes and Bounds Description of the Easement Area Randall R. Adams EXHIBIT 'A' Vol.239 Pg.849 Page 1 of 3 x FD. V PIPE N 880 02'18" W 2233.8' FD. 1" PIF liJ o 0 in! nO2.98' ��•��� s�° s N1 \ °T59., d 00 60' Temporory 7 Const. Esmf. z FD. 1'• PIPE 2.49 Ac. 6 N 88� 07'38" W FD.%" ROD 2751.4' 5 A 25 M. & M. Enterprls" ermor Vol.259 Pg. 922 Eosemenf 57804 Rods - Permanent Esmt. (2°68 Ac. - Permanent EsmtJ 0660 315.42 AG. ° 5EGT10N 1240 N Jo HAYS SURVEY &AKZA GOUNTY) TEXAS CONC. MON. 88011'41" E N W +51 E CATTERED STNS. -RAIL LYING OUT S PIECES OF CONC, IN THIS AREA A legal description of even survey date herewith accompanies this survey plat. Sur a on the ground,fle h M , 2009 CC 1 2 • x�r; , 3 Registered P o essionol Land Surveyor. r�%al'w „�•,;.:.�.;. 4 Date:-Zd -D�. ": •:,,,�?,_ 6 7 AllNorthings and Eastings shown are pro'e0'et'i7'�rdQ�ates and may be converted to Texas State ri'an:e;,- inotes, North Central Zone, NAD83 by dividing by a surface SI adjustment factor of 1.0002396 All distances shown ore surface distances. CI DI Bearings shown are grid bearings based on the Texas SI State Plane Coordinate System, North Central Zone, FI NAD83 Datum. This survey and olliniormation hereon is for the exclusive use of CITY OF LUBBOCK and shollnot be copied or used except for the purpose for which it is expressly furnished. this drawing and ollcopies (porlidor complete) shollbe returned to the owner upon demand. 1256 FD,1/2" PIPE 2 FD. 1" PIPE 1 o - LID N w' 1239 tn to "T" RAIL z 0. EI!: W. 0 .R. COMM. TOWER Y-7168051.19 I X-1056959.93 I �L i i I I J I t '1 KVIiy "T" RAIL •- Set 1/2" Iron Rod With Cap AT DATE: 4-21-09 NT: PARKHtLL SMITH & COOPER - CITY OF LUE WN BY: B. BURROW I SURVEY DATE: 3- VEYED BYs J.M. MARTIN CHECKED BY: G. WIL! PAR25.d n FILE NO. 35 760 SHEET tx',Il•lEM IN It VS S1M10M.K. "'PIP3330 7ft ST.. SURE 202 • LUBBOCK, 7X. 70413 480p 788-0a20 . FAX IBM 702-SA9 EXHIBIT"A" Page 2 of 3 PARCEL NO. 25 M. & M. ENTERPRISES Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in Section 1239, D. & W. R.R. Survey and Section 1240, J. Hays Survey, Garza County, Texas and said pipeline centerline being described as follows: Beginning at a 1/2" Iron rod with cap, set on the West right of way line of the Burlington Northern Santa Fe Railroad, for the beginning of this description, from whence a 6"4" concrete monument found for the West Quarter Comer of said Section 1239, bears North 1059'55" East, a distance of 385.99 feet and North 881,07 38" West, a distance of 595.71 feet, said point of beginning having a project coordinate of Y = 7168051.19 and X = 1056959.93; Thence South 85050'46" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 109.39 feet to a point; Thence North 61044'25" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 524.61 feet to a point; Thence North 291100'52" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 73.52 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 218.40 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 21,,45'45"; Thence North 50o46136" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 373.22 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 -Fort (60') wide permanent pipeline easement, an arc distance of 64.50 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and a delta angle of 6°25'36"; Thence North 57012'13" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 584.03 feet to a '/2" iron rod with cap, set on the North line of the tract of land as described in Volume 259, Page 922, Deed Records of Garza County, Texas, for the end of this description, whence a 1" iron pipe found for the Northwest corner of said tract of land as described in Volume 259, Page 922, bears North 88002'18" West, a distance of 1702.98 feet. Containing 118.04 rods. (2.68 acres) ♦K HIGH-TECH LAND AND GPS SURVEYORS, INC. 3330 70th St., Suite 202 • Lubbock, Texas 79413 (806) 788-0020 • Fax (806) 792-1646 EXHIBIT"A" Page 3 of 3 The above described sixty foot (601 wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 2.49 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. 5. Surface adjustment factor for entire project is 1.0002396 Registered 66fesslonal Land Surveyor Date: ZU to HIGH-TECH LAND AND GPS SURVEYORS, INC. 3330 70th St., Suite 202 - Lubbock, Texas 79413 (806) 788-0020 - Fax (806) 792-1646 Exhibit B Pipeline Safety Guidelines So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the Easement, as well as applicable laws and regulations: I . Except during construction or maintenance of the Pipeline, driving within the Easement Area is limited to use of currently established roadways, if any, and any trail roads constructed by Grantee on non -cultivated lands. 2. Smoking outside vehicles within the Easement Area or lands or premises is prohibited. 3. No firearms, drugs, or alcohol are permitted in the Easement Area and no photographs may be taken in the Easement Area except in connection with Permitted Uses and for no other purposes. All commercial photography and the sale of any photographs taken from the Easement Area or surrounding lands of Grantor are expressly prohibited. 4. Pedestrians and non -motorized traffic have right-of-way over motorized traffic 5. The maximum speed limit within the Easement Area is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 6. Use horn for safety at blind corners and when passing. 7. Use established hand signals or turn indicators 8 Observe all signs including pipeline markers. 9. Come to complete stop on entering or leaving gates within the Easement Area. 11►. All persons entering the Easement Area must be fully clothed. 11. No debris or trash shall be discarded on the Easement Area or the Temporary Easement Area. Exhibit C Locations of Surface Pipeline Equipment No Text No Text Exhibit D Gate Construction Detail and Specifications S"K9'-6" SCII 40 PIPE W/Yi" _ •_i —•-• ___—_- _ IS'-0' _i POP PLATE - - — HIES F.FFNL'ES ANO GATES: - 3" COLLAR I. GATES TO BE INSTALLED AT ALL FENCE CROSSINGS, UNLf•.SS 2" SCH. 40 PIPE —�OTHERVASE DIRECTED BY THE OWNER -- 2. ALL STEEL CATES, POSTS. CROSS SRACES. ETC.. SHALL BE PAINTED ! ronus q _ BLUE. 3. PROVIDE 1" LINK CHAIN AROUND GATE AND WELD TO SUPPORT POST. PROVIDE ONE HEAVY DUTY LOCK PER GATE KEYED PER OWNER'S LOCKS. 4. CONTRACTOR SHALL VERIFY EXACT LOCATION OF ALL GATES WITH OWNER PRIOR TO CONSTRUCTION. 5. BARBED WARE SHALL BE 12A CA, GALVANIZED BARBED WIRE. n a A' GUSSET PLATE MINIMUM 5 STRAND FENCE OR AS PER EXISTING FENCE, WHICHEVER } IS GREATER. WHERE EXISTING FENCE HAS PANEL FABRIC. INSTALL WELD ALL AROUND 39" PANEL FABRIC WITH 3 STRAND BARBED WIRE, 47' PANEL SCH. 2" SCH. 40 PIPE (TYPICAL) FABRIC WITH 1 STRAND BARBED WIRE MINIMUM OR AS PER EXISTING, 10 PIPE 18' DIA. WHICHEVER IS GREATER. P I -,il HOLE (TYP•) 6. CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONCRETE I CONNECT TO EXISTING FENCE. PRIOR TO CUTTING EXISTING FENCE. I I JHI 7. DIMENSIONS SHOWN ARE FOR FENCES CROSSING AT PERPENDICULAR NOTE: ALL CONNECTIONS ARE I ANGLE TO PIPELINE- WHERE FENCE CROSSES PIPELINE AT SKEWED WELDED ALL AROUND. - ANGLE, DIMENSIONS SHALL BE INCREASED ACCORDINGLY. GATE DETAIL SCALE: I/2"=I'-0' -6" SCH. W/Va ATE "1� FAIL "A" IE£T 2" SCH. 40 0 I I 03 T - SHAPE POST 6'-6" LONG (1.33 #/FT.) W/ANCHOR PLATE 6"x9'-6" SCH. 40 PIPE WIW' TOP PLATE SINGLE SWING GATE SECTION i L SEE NOTE 5 SEE DETAIL 'C'J 4"x4" MESH WELD ]I 18" DIA. TO GATE FRAME HOLE (TYP.) 1" LONG ON 6- C/C CONCRETE TYPICAL GATE SUPPORT DETAIL SCALE: 1 /2"-1'-0' Exhibit E Equipment Covered by Damage Payment under Paragraph 1200 Exhibit F Resolution No. 2010-RO104 Unrecorded Leases, Unrecorded Agreements, Unrecorded Deeds of Trust, and Unrecorded Easements 1. An unrecorded grazing lease 2. An unrecorded hunting agreement