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HomeMy WebLinkAboutResolution - 2010-R0187 - Purchase Of Easement With The Kahlich Family Revocable Trust/Leonard Residuary - 04/19/2010Resolution No. 2010—RO187 April 19, 2010 Item No. 5.5 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 certain pipeline easement interests located on certain property owned by The Kahlich Family Revocable Trust 1996, as to a one-half interest and The Leonard J. Kahlich Residuary Estate Trust, as to a one-half interest, in Lubbock 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 April 19, 2010 TOM MARTIN, MAYOR ATTEST: h Aid6e&a Garza, City Secretary APPROVED AS TO CONTENT: -malf-0�L /Z1 __Qj Marsha Reed, P.E., Chief Operation Officer Dave Boater,. Right -of -Way Agent APPROVED AS TO FORM: ity Attorney Res -Contract for Purch Easement-Kahlich Family Revocable Trust 4.7 10 Resolution No. 2010—R0187 Contract: 9523 CONTRACT FOR PURCHASE OF EASEMENT This Contract For Purchase of Easement (the "Contract") is made on this 19th day of April , 2010 ("Effective Date"), by and between The Kahlich Family Revocable Trust 1996 and The Leonard J. Kahlich Residuary Estate Trust (referred to herein as "Seller" whether one or more) and the City of Lubbock, Texas, a Texas home rule municipal corporation (referred to herein as "Buyer'), RECITALS WHEREAS, Seller owns the Easement Area (as defined in the Easement Agreement (the "Easement Agreement") attached hereto as Exhibit A) and the Temporary Easement Area (as defined in the Easement Agreement) (the Easement Area and the Temporary Easement Area shall be collectively referred to herein as the "Easement Area"): and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a permanent and temporary easement (collectively, the "Easement") over, across and upon the Easement Area, and the Temporary Easement Area in accordance with the terms of the Easement Agreement. ARTICLE I SALE OF EASEMENT For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Easement and all rights incident thereto as described in the Easement Agreement attached hereto and incorporated herein for all purposes. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 F— cose Price. The Purchase P ice 'o be paid to Seller for the Easement described herein is the sum of „ /"J3.. 4,r� Dollars (.►3. ' j ) (the "Purchase Price") which amount is the sum of the amounts set forth in Paragraph 16 of the Easement Agreement. 2.02 Independent Contract Consideration. Within 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 fifteen (15) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by West Texas Title Company ("Title Company") setting forth its exceptions to title ("Exception/Exceptions") and copies of any such Exceptions. 3.02 Survey. Buyer, at Buyer's sole cost and expense, has caused a current on the ground survey for the Property (the "Survey") to be delivered to Buyer. Seller shall furnish any affidavits, certificates, assurances, and/or resolutions required by the Title Company, if any, in order to amend the survey exceptions as required by Section 3.05 below. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of forty- five (45) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Objections"), if any. All items set forth In the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released at or prior to Closing, shall be deemed to be Objections. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate, If Buyer notifies Seller of Objections to any of the matters furnished to Buyer pursuant to Section 3.03, the Seller shall, within fifteen (15) calendar days after Seller is provided notice, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. If Seller fails or refuses to satisfy any Objections within the allowed fifteen (15) calendar day period, such cure period shall be automatically extended an additional fifteen (15) days. If the obligation remains unsatisfied, and if Buyer and Seller do not agree in writing to an extension of that period, then Buyer has the option of either: (i) waiving the unsatisfied Objections by, and only by, notice in writing to Seller within forty-five (45) calendar days after the expiration of the Title Review Period, in which event those Objections shall become Permitted Exceptlons (herein so celled); or (ii) terminating this Contract by notice in writing and receiving back the Independent Consideration, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has fee simple title to, and can convey, an easement pursuant to the Easement Agreement over and across the Easement Area, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows: (i) survey exception may be amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); no exception will be permitted for "visible and apparent easements" or words to that effect; no exception will be permitted for "rights of parties in possession"; (iv) no liens will be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exceptions it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending ninety (90) calendar days thereafter (the "Absolute Review Period"), based on such tests, examinations, studies, investigations and inspections of the Easement the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Easement suitable for Buyer's purposes. Buyer is granted the right to conduct engineering and/or market and economic feasibility studies of the Easement, and to conduct a physical inspection of the Easement Area, including inspections that invade the surface and subsurface of the Easement Area. If Buyer determines, in its sole judgment, that the Easement Area is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as ,CONTRACT OF SALE Kahlich Family Trust — City of Lubbock reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, and neither Buyer nor Seller shall have any further duties or obligations hereunder. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To Induce Buyer to enter Into this Contract and consummate the sale and purchase of the basement In accordance with the terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that the Seller has good and marketable fee simple title to the Easement Area, subject only to the Permitted Exceptions. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Unless stated otherwise, within ten (10) days after the Effective Date, Seller, at Buyer's sole cost and expense, shall deliver to Buyer, with respect to the Easement Area, true, correct, and complete copies or notice of all oral or written leases or agreements and/or occupancy agreements of any kind or nature relating to the possession of the Easement Area, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases"); (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall not sell, assign, or convey any right, title or interest whatsoever In or to the Easement Area, or create, or permit to exist, any lien, encumbrance, or charge thereon. 5.03 Survival Beyond Closing. The representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing. ARTICLE VI CLOSING 6.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company. The Closing Date (herein sometimes called), shall be on the earlier to occur of (i) five (5) days following the completion of all conditions precedent to Buyer's performance of this Contract, so long as said date is after the expiration of the Absolute Review Period, unless Buyer elects, in its sole discretion, to close prior to the expiration of the Absolute Review Period; or (ii) as mutually agreed on by Seller and Buyer. Unless provided otherwise herein or agreed upon by Buyer and Seller, Closing shall not be later than fifteen (15) calendar days after the expiration of the Absolute Review Period, 6.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title Company the following items: (i) The Title Policy in the form specified in Section 3.05; (ii) An Easement Agreement, in the form as attached hereto as Exhibit "A", duly executed by Seller and acknowledged; and (b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the following items: (i) The sum required by Section 2.01 in the form of certified or cashier's check, check or other readily available funds; Both Buyer and Seller shall deliver other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. CONTRACT OF SALE Kahlich Family Trust -- City of Lubbock ARTICLE VII DEFAULTS AND REMEDIES 7.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract. (b) Buyer's Remedies. If 7.01(a) occurs, Buyer may: (i) terminate the Contract and receive the Independent Consideration as Buyer's sole and exclusive remedy, or (ii) enforce specific performance. 7.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Section 6.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedies. If 7.02(a) occurs, Seller may: (i) terminate the Contract and retain the Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific performance. 7.03 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: BUYER: The Kahlich Family Revocable Trust 1996 Attn: Dave Booher The Leonard J. Kahlich Residuary City of Lubbock Estate Trust 1625 13th Street 10703 Canton Lubbock, Texas 79401 Lubbock, TX 79423 Telecopy: (806)775-3074 Copies to: For Seller: For Buyer: Attn: Marsha Reed City of Lubbock 1625 13th Street Lubbock, Texas 79401 Telecopy: (806)775-2051 The parties may change their address effective in the same manner as other notices provided hereunder. ARTICLE VIII MISCELLANEOUS 8.01 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and CONTRACT OF SALE Kahlich Family Trust — City of Lubbock interpretation of this Contract, THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN LUBBOCK COUNTY, TEXAS. 8.02 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Easement, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 8.03 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 8.04 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. 8.05 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. 8.06 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City Council of the City of Lubbock to the Deputy City Manager of Buyer, or his designee. When the context requires, singular nouns and pronouns include the plural. The undersigned represent and warrant their respective authority to execute this contract, and to convey fully, and without reservation or exception, the interest in property described herein. Executed by Seller on the dayof 12010. SELLER: THE KAHLICH FAMILY REVOCABLE TRUST 1996 Nett kAac.tt r , Trustee THE LEONARD J. KAHLICH RESIDUARY ESTATE TRUST By:� -dZ&Jrtt E gaw.Qj, Trustee Executed by Buyer on the 19th day of April 2010. CITY OF LUBBOCK TOM MARTIN, MAYOR ATTEST: /Q I ALP— ebe a Garza, City Secretary CONTRACT OF SALE Kahlich Family Trust -- City of Lubbock APPROVED AS TO CONTENT: r M rara sha Reed, P.E., Chief Operations Officer Dave Booher, Right -of -Way Agent APPROVED AS Ryan . Big b!2�, Attorn�the City of LLTbbock CONTRACT OF SALE Kahlich Family Trust — City of Lubbock Exhibit "A" to Contract of Sale EASEMENT FORM CONTRACT OF SALE Kahlich Family Trust — City of Lubbock Resolution No. 2010-RO187 EASEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF LUBBOCK § The Kahlich Family Revocable Trust 1996 and The Leonard J. Kahlich Residuary Estate Trust with a street address of 10703 Canton, Lubbock, Lubbock County, TX 79423 (hereinafter referred to as the "Grantor" whether one or more) for a valuable consideration, to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 13`h Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, has granted and does by these presents grant unto Grantee the following described perpetual exclusive easement, servitude and right-of-way, as described herein (hereinafter called the "Easement") through, over, under, upon, across and within the following described lands, described in Exhibit A (hereinafter called the "Lands") situated in Lubbock County, Texas: Pipelines and Equipment Grantor hereby grants to Grantee a perpetual exclusive Easement to survey, construct, reconstruct, install, upgrade, operate, inspect, maintain, alter, relocate, replace, repair, and remove (hereinafter called "Permitted Uses") pipelines, conduits, drain (blow -off) valves, valve boxes, meters, meter boxes, vents, manholes, manhole covers, corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep well anode stations with power supplies, flow meters, system communication lines and splice boxes, pipeline trail road on non cultivated areas, and equipment and facilities related thereto, or any part thereof (hereinafter collectively called the "Pipeline System"), for and/or related to the transportation of water through, under, upon, over, across and within the Lands. Such perpetual exclusive Easement shall be 60 feet wide, as described in Exhibit A as attached hereto. Further, a temporary construction Easement is hereby granted adjacent to the perpetual exclusive Easement which shall be an additional 60 feet, as described in Exhibit A as attached hereto. The temporary Easement shall terminate upon completion of all construction activities related to that portion of the Pipeline System that requires said temporary Easement as described in Exhibit B as attached hereto. Exhibit A is attached hereto and incorporated herein, and hereby made a part hereof by reference to describe the Easement and the Lands. This Easement is specifically made by Grantor and accepted by Grantee subject to the following terms, covenants, obligations and conditions: 1. Grantee may use and occupy the Easement for the sole purpose of. (a) the right to perform Permitted Uses related to the Pipeline System; (b) the right (for men, material, and equipment) of ingress and egress and regress to and from and access on and along said Easement granted herein, with the right to ingress and egress and regress to and from and access on and along said Easement, for the Permitted Uses; and (c) the right to locate the Pipeline System through, over, under, upon, across and within the Easement Kahlich Family Trust -- Pipeline Easement Agreement for the purpose of water transportation. Grantee shall use the Easement for the Permitted Uses and Pipeline System and for no other purposes or uses. 2. Grantee covenants and agrees that its use of the Easement and its operations conducted thereon shall, to the best of Grantee's ability, at all times comply with all applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and Grantor's rules and regulations as shown on Exhibit C attached hereto, particularly, but not limited to, those regarding safety, cleanup and distribution and removal of soil, rock and/or trees. Grantee agrees to construct the Pipeline System, in compliance with all Legal Requirements, and with due care for Grantor's property, business and operations. Fences and gates installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made a part hereof. Grantor and Grantee shall each conduct its activities in such a manner as to not unduly interfere with or cause a disruption to the other's business, operations and property or those of other third parties entering or crossing the Easement. In the event it is discovered that Grantee is in violation of any portion of the Legal Requirements, Grantee agrees to commence, upon receipt of written notice of such violation, the process of curing such violation so that Grantee will be in compliance with this subparagraph. Upon completion of any construction project that is part of the Pipeline System and upon completion of any record survey, Grantee shall provide a copy to Grantor of the record survey showing the location of the Easement and Pipeline System and all other installed assets on the Grantor's lands. 3. If Grantee should abandon the Pipeline System, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns. Grantee may abandon the Pipeline System solely by a formal resolution of its governing body that authorizes the abandonment of the Pipeline System and that further resolves that Lake Alan Henry is no longer necessary as part of Grantees water supply. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Lands are located. 4. The Easement Term is hereby defined as the period of time beginning with the granting of the Easement and continuing until such time that the Easement is abandoned by Grantee. 5. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement in Kahlich Family Trust — Pipeline Easement Agreement 2 good order, condition and repair following any work related to Permitted Uses on the Pipeline System. 6. Grantee shall be responsible for obtaining all permits necessary to construct and operate the Pipeline System on the Easement. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality covering the Easement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 7. Within the Easement, Grantee shall have the right to cut fences and install gates to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, it shall be properly supported on either side of the contemplated opening by suitable posts and braces. 8. The Pipeline System shall be so located or shall be buried at a sufficient depth so it does not interfere with current cultivation of the soil at the soil levels as they exist at time of execution of this Easement. Following completion of construction, the surface area shall be returned to its preconstruction condition as nearly as practicable. If any of the property shall be grassland, Grantee shall apply grass seed with a native mix from seed that is available and that is the same as existing native grass or comparable to the native grass in the disturbed area. 9. This grant of Easement shall not preclude the right of Grantor to cultivate, use, and enjoy the Lands for any purposes which will not constitute an interference with the Easement, rights and privileges herein granted to Grantee, or endanger any of Grantee's property. However, the right reserved by Grantor as to the perpetual Easement shall not include the right to erect any buildings, reservoirs, structures, or other improvements on the perpetual Easement without the advance written permission of Grantee. 10. Grantor, his successors, assigns, or agricultural lessees or tenants, if any, are to be compensated, as set out herein under Paragraph 16, for all damages to the lands and personal property located thereon, including but not limited to fences, crops, livestock, drainage and/or irrigation systems, as a result or related to the Grantee's use or occupation of the lands pursuant to the rights granted by this Easement, including but not limited to construction, future operation and maintenance of the Pipeline System. Payment of these damages and for the value of this Easement by Grantee, subject to the terns of this paragraph 19, will be in an amount agreed to by Grantor and Grantee and shall be a one-time payment as set forth in paragraph 16, for any and all of such damages, whether occurring or accruing at or after the time of construction of the pipeline system. 11. Grantee shall exercise due care and diligence in the use of the rights and privileges herein granted to it. In case of abandonment of said Easement as provided in Kahlich Family Trust — Pipeline Easement Agreement 3 No. 3, the title and interest herein granted shall end, cease, and terminate, and title to the Easement, pipeline, equipment and facilities shall revert to the then owner of the Lands. 12. The grant of Easement herein contained is subject to all valid and subsisting easements, leases including oil, gas and wind energy leases, and rights -of -way of record affecting the Lands. 13. It is a condition precedent to the payment to the Grantor of the sum named herein that the title to the Lands described herein shall be vested in the Grantor, subject only to the interest of Grantee hereunder and to the matters set out in Paragraph No. 12 hereof and to such other defects, interests, or encumbrances as may be waived in writing by Grantee. Grantor shall provide to Grantee an executed release from any lien holder, tenant, lessee, or other party having an interest in the Easement prior to payment of the compensation called for in Paragraph No. 16 hereof. 14. Grantor shall procure and have recorded without cost to Grantee all assurances of title and affidavits which the Grantor may be advised by Grantee are necessary and proper to show in Grantor title sufficient to grant the above easement free and clear of encumbrances other than those encumbrances expressly defined herein. Abstracts or certificates of title or title insurance may be procured by the Grantee at its expense. The expense of recording this Easement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, if necessary, to obtain any curative documents needed. 15. If Grantee, in its sole discretion, determines that the Easement conveyed to Grantee and described herein should be acquired by judicial procedure, either to procure a safe title or for any other reason, then Grantor and Grantee hereby stipulate that the ultimate award to the Grantor for the Easement conveyed to Grantee and described herein, shall be the same as the purchase price hereinafter stated in Paragraph No. 16, but should the Grantor own a lesser interest than that Easement conveyed to Grantee and described herein, such award shall not exceed that portion of the purchase price stated in Paragraph No. 16 which the value of such lesser easement conveyed to Grantee bears to the value of the entire Easement described herein. 16. As complete consideration for the above grant of easement and for all the rights and privileges granted to the Grantee. in u s mgreement, Grgptee agrees to pay Grant r e one time sum of ,�3,s� and 7 /100ths Dollars c 3,p — 17. "Grantee" when used in this instrument, shall include The City of Lubbock's officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 18. Words of any gender used in this agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. Kahlich Family Trust -- Pipeline Easement Agreement 4 19. A. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs), that may be suffered or incurred by Grantor, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement after the effective date of this agreement to the extent caused by Grantee's or its employees, contractors, or agents negligence or willful misconduct. B. When any losses, claims, demands, or causes of action of the types described in Section A of this paragraph are the result of joint or concurrent negligence or willful misconduct of Grantee or their respective employees, contractors or agents, each party's duty of indemnification will be in proportion to its allocable share of such joint liability to the extent permitted by law, as determined by a court of competent jurisdiction. C. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the easement and/or any rights granted hereunder, and Grantor shall be solely limited to the remedy of actual money damages for such claims, subject to those limitations contained in paragraph 26 hereunder. 20. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold Grantor harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities of whatsoever nature arising from pollution or contamination emanating from the Pipeline System and equipment of Grantee arising from or relating to the performance of this agreement (the "Grantee pollution liabilities"). For the avoidance of doubt, "Grantee pollution liabilities" shall exclude any such pollution liabilities arising from any condition existing before the effective date of the Easement. Grantor agrees to release, indemnify, defend, and hold Grantee harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities of whatsoever nature arising from (I) pollution emanating from the property and equipment of Grantor, (II) any condition existing before the effective date of the Easement, (III) pollution or contamination migrating or having migrated on, under, or to the Easement from any other location, and (IV) the possession, occupation or use of the remaining portions of the Grantor's adjacent property. 21. It is understood and agreed that this Easement is not a conveyance of the fee estate for any of the Lands covered hereunder, but is only an easement through, over, under, upon, across and within the Lands. 22. The provisions of this Easement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. 23. This Easement contains the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding Kahlich Family Trust — Pipeline Easement Agreement 5 pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification, 24. In case any one or more of the provisions contained in this Easement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Easement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 25. Any notices or demands provided to be given herein by the parties shall be in writing and mailed by certified or registered mail to the other party at the address set forth above. Any notice or demand shall be deemed to have been received the earlier of five (5) days after the date of mailing or the date of actual delivery as shown by the addressee's certification or registry receipt. 26. Limitation on certain types of damages. Neither party shall be liable to the other party or any of such party's affiliates in any action or claim, including without any limitation, any action or claim for indemnity under paragraphs 19 and 20, above, for loss of profit, loss of product, loss of use, or for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 27. Grantee agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not interfere with or endanger the operations or integrity of Grantee's Pipeline System and Permitted Uses. Additionally, the Grantor will not construct any facilities or perform any activities in or around the Easement and Lands that may violate federal and state regulations regarding the protection of drinking water supplies and facilities that convey such water. Grantor and Grantee agree and hereby give notice to any subsequent mineral, water, wind or energy lessee or grantee of any interest overlying or underlying the Lands owned by Grantor and the Easement, that Grantee will be operating the Pipeline System as a Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted on or in the vicinity of the Easement and Lands which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. Further, no structure shall be placed on the Easement, which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. A. To the extent that Grantor owns any portion of the mineral and/or royalty interest under the Lands defined herein, Grantor surrenders and releases its surface drilling rights and all other rights of surface use of the Easement and Lands incident to the production of oil, gas, hydrocarbons, minerals, wind energy, and water production subject to the following exception and limitation: Kahlich Family Trust — Pipeline Easement Agreement 6 i) Grantor reserves and excepts from this release and retains for itself, its successors and its successors -in -interest, all rights to explore for, to drill and produce oil, gas and other hydrocarbons underlying or situated beneath the Easement and Lands by any means whatsoever, including wells directionally drilled from surface location on nearby lands so long as no surface operations are performed on the Easement and so long as such operations will not interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. ii) Grantor shall include the surface use restrictions and covenants provided herein in any subsequent lease or conveyance of the oil, gas and/or mineral estate, wind rights or interests and water rights or interests. 28. Grantee shall have the right to approve the location and means of future third -party pipelines which will cross Grantee's pipeline system. Grantee will not withhold reasonable crossing requests, but will act in a manner to protect Grantee's pipeline system. TO HAVE AND TO HOLD said Easement unto Grantee, its successors and assigns for so long as the same shall be used for the purposes aforesaid subject to the terms and conditions hereof. [ Signatures of the Parties on Next Page ] Kahlich Family Trust — Pipeline Easement Agreement 7 EXECUTED this _ day of _ , 2010 ("Effectivc Date"), GRANTOR: THE KAHLICH FAMILY REVOCABLE TRUST 1996 By: Trustee THE LEONARD J. KAHLICH RESIDUARY ESTATE TRUST By: Trustee GRANTEE: The City of Lubbock By: Name: Title: [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Terry Grantham Attorney Kahlich Family Trust — Pipeline Easement Agreement 8 STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on , 2010, by , in his/her capacity as Trustee of The Kahlich Family Revocable Trust 1996 on behalf of said Trust. Notary Public, State of Texas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on , 2010, by , in his/her capacity as Trustee of The Leonard J. Kahlich Residuary Estate Trust on behalf of said Trust. Exhibits: Notary Public, State of Texas Printed Name of Notary My commission expires: "A" - Centerline Metes and Bounds Description of Pipeline System "B" - Survey Plat(s) of Centerline of Pipeline System "C" - Pipeline Right -Of -Way Safety Guidelines "D" - Gate Construction Detail and Specifications Kahlich Family Trust — Pipeline Easement Agreement 9 Exhibit A Metes and Bounds Description of the Perpetual Exclusive Easement and The Temporary Easement Resolution No. 2010-RO187 EXHIBIT "A" PARCEL NO. 74 THE KAHLICH FAMILY REVOCABLE TRUST Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Northwest Quarter of Section 59, Block S, Lubbock County, Texas and said pipeline centerline being described as follows: Beginning at a 1/2" iron rod with cap, set In the East line of said Northwest Quarter of Section 59,13Iock S, for the beginning of this description and in a curve to the left, from whence a railroad spike found in the Northeast corner of said Northwest Quarter of Section 59,. Block S, bears North 1007'44" East, a distance of 1413.44 feet, said point of beginning having a project coordinate of Y = 7225096.31 and X = 981885.93; Thence along the arc of a curve to the left and being along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 37.87 feet to a point for the.end of this curve, said curve having a radius of 575.00 feet and delta angle of 3046'24"; Thence North 47058'55" West, along the centerline of said Sixty=Foot (60') wide permanent pipeline easement, a distance of 2118.50 feet to a'/2" iron rod with cap, set in the'North line of said Section 59, Block S, for the end of this description, whence a railroad spike found for the Northwest corner of said Section 59, Block S, bears North 88054'18"'West, a distance of 1013.28 feet. Containing 130.69 rods. (2.97 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 2.80 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 thls .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 OF Q`�o° o`r Register d rofessional Land Survevo r c,_00°"t'e �d�`°�d► _ �{�.ceseo0OJ000�GOpgOOeoo•a Date: _titl GARV aVMSON 101 4 .aeseo0000000000eee. oea 40 �•e• HIGH-TECH LAND AND GPSiSUR MF RS, INC. 3330 70th St., Suite 202 • Lubbock, Texas 79413 (806) 788-0020 -Fax (806) 792=1646 " Exhibit B Survey Plat(s) of Centerline and Description of that portion of the Pipeline System Requiring the Easement and Temporary Easement r' Resolution No. 2010—RO187 EXHIBIT i (74 Mary Taylor Estate 6 /0/328' Vol.20/ Pg.552 7 N 8° 54'96" W 4 . ' FD. R.R. SPIKE FD. R.R. SPIKE3 77 iZ 60' Permanent Easement "' Temporary ss.;�� Const ESmt. Ac N 00 to �'- � \ oo Doyle Charles Buxkemper N z \ Cynlhlo Gall 8uxkemper N Vol.10220 Pg.113 w N. W. 1/4 SEGT I ON 59) 01.OGK 6 w I.UbbOGK GOUN�fY) TEXAS ��_P.0.B. O O X-981885.9.3 R- 575.00' L- 3787' 2 % 4 DELTA- 346'24" z The Kahllch Famlly W ® E Revocable Trust Vol.5306 Pg.226 130.69 Rods - Permanent Esmt. S 77 L 12.97 Ac. - Permanent EsmtJ FD./z" ROD 78FD. 1" PIPE N 880 53'34" W 2644.8'------- •- Set 1/2" Rod With Cap A legal description of even survey date herewith r> OF T accompanies this survey plot. �.C�ry�Yl''*- �,D•s.g 1 Sur a ed on the -mind March -May, 2009 o uo�Jouooacoo�o,®�oyoe r. GAIV I6 WILSDN � •�s•e--7D000OOOOe--voo9a• Registe a rofessional Land Surveyor Date:9?:4-07 All Northings and Eostings shown ore project coordinates and may be converted to Texas State Plane Coordinates, North Central Zone, NAD83 by dividing by a surface SCALE 1' - 600' IREVISION. IPLAT DATE: 5-15-09 adjustment factor of 1.0002396 All distances shown are surface distances. CLIENT: PARKHILL SMITH & COOPER -CITY OF LUBBOCK DRAWN BY: B. BURROW I SURVEY DATE: 3-5,2009 Beorings shown are grid bearings based on the Texas SURVEYED BY: J.M. MARTIN CHECKED BY: G. WILSON Slote Plane Coordinate System, North Central Zone, FILE: PAR74.d n FILE NO. 35,760 1 SHEET 1 OF 2 NAD83 Datum, This survey and ollinformotion hereon is for the exclusive use of MID LK V WS J4JPL inK. CITY OF LUBBOCK L�1 and shollnat be copied or used except for the purpose for which 3330 701h St„SUIE 202 • 1.1.188M. TX.79413 it is expressly furnished. this drawing and oil copies (partial or 16061 798.002D • FAX (806) 792.16/6 / \ complete) shollbe returned to the owner upon demand. Resolution No. 2010-RO187 Exhibit C PIPELINE EASEMENT SAFETY GUIDELINES So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the pipeline Easement (the "Easement"), as well as applicable laws and regulations: 1. Except during construction, operation, inspection, or maintenance of the Easement, Driving on the Easement is limited to use of currently established roadways, if any. 2. Permission on the Easement does not preclude the need to make a one -call to notify third - party pipeline owners of planned work. 3. Smoking outside vehicles within the Easement or lands or premises is prohibited. 4. No firearms, drugs, alcohol or cameras are permitted in the Easement. 6. Pedestrians and non -motorized traffic has right-of-way over motorized traffic 7. The maximum speed limit is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 8. Use horn for safety at blind corners and when passing. 9. Use established hand signals or turn indicators 10 Observe all signs including pipeline markers. 11. Come to complete stop on entering or leaving the Easement gates. 12. All persons entering the Easement must be fully clothed. 13. Grantee and personnel of Grantee are granted the right to temporarily use Grantor's property directly located outside of the Easement for such reasons as: a) avoidance of machinery, construction or equipment located on the Easement; and b) detouring around natural impediments such as rocks, trees or existing fences or structures; and c) repair, removal or maintenance of equipment or vehicles stranded on the Easement. 14. No debris or trash shall be discarded on the Easement. Exhibit D Gate Construction Detail and Specifications Resolution No. 2010-RO187 Ys -G SCH. PIPE W/'h" _ 14 —D P PLA iE " "—+ — NOTES FQR FENCES AND GATES; 3" COLLAR �.---• 2" SCH. 40 PIPE , � '�mww Iwww>rwn�sw>.>vwwww 1'}` aotr�.�'-tea w�sa><Iwwt>.wtl�wwwwu� �wwww[IA • �.��w>wE�Iiw�fw'��>1�ww1•t111Aw1■ ;�www ,: v�fw>ww�lRi�w1t1t1■ 11)IllrWw�1��Wwwwww�wl Iwt��uw>twww>r.= v>.�>L A' GUSSET PLATE WELD ALL AROUND SCH. 2" SCH. 40 PIPE (MCA) PIPE i I )14CRETE I ( ! NOTE- ALL CONNECTIONS ARE WELDED ALL AROUND. GATE DETAIL SCALE: 1/2"-1'^D' 1. GATES TO BE INSTALLED AT ALL FENCE CROSSINGS, UNLESS OTHERWISE DIRECTED BY THE OWNER. 2 ALL STEEL GATES, POSTS, CROSS BRACES, ETC.. SHALL BE PAINTED BLUE. 3. PROVIDE 1" UNIC CHAIN AROUND GATE AND WELD TO SUPPORT POST. PROVIDE ONE HEAVY DUTY LOCK PER GATE KEYED PER OWNER'S LOCKS. 4. CONTRACTOR SHALL VERIFY EXACT LOCATION OF ALL GATES WITH OWNER PRIOR TO CONSTRUCTION. • 5. BARBED WIRE SHALL BE 12)4 GA. GALVANIZED BARBED WIRE. MINIMUM 5 STRAIND FENCE OR AS PER EXISTING FENCE. WHICHEVER IS GREATER. WHERE EXISTING FENCE HAS PANEL FABRIC. INSTALL 39" PANEL FABRIC WITH 3 STRAND BARBED WIRE, 47" PANEL FABRIC WITH 1 STRAND BARBED WIRE MINIMUM OR AS PER EXISTING, la" DIA. WHICHEVER 15 GREATER. HOLE (TYP.) 6. CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONNECT TO EXISTING FENCE. PRIOR TO CUTTING EXISTING FENCE. 7. DIMENSIONS SHOWIN ARE FOR FENCES CROSSING AT PERPENDICULAR ANGLE TO PIPELINE. WHERE FENCE CROSSES PIPELINE AT SKEWED _ ANGLE. DIMENSIONS SHALL BE INCREASED ACCORDINGLY. IGLE SWING TE SECTM M 4"x4" MESH WELD TO GATE FRAME 1" LONG DN 6" C/C CONCRETE TYPICAL GATE SUPPORT DETAIL RETURN: wEJT T FILE No XAS 1�PgNY ECG Resolution No. 2010-R0187 1!a � IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII EASE 16 PGS 2010034756 EASEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF LUBBOCK § BERNICE E. KAHLICH, Sole Trustee of The Kahlich Family Revocable Trust 1996, and Sole Trustee of The Leonard J. Kahlich Residuary Estate Trust, both created under trust agreement dated August 27, 1996, as amended, with a street address of 10703 Canton, Lubbock, Lubbock County, TX 79423 (hereinafter referred to as the "Grantor" whether one or more) for a valuable consideration, to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 131h Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, has granted and does by these presents grant unto Grantee the following described perpetual exclusive easement, servitude and right-of-way, as described herein (hereinafter called the "Easement") through, over, under, upon, across and within the following described lands, described in Exhibit A (hereinafter called the "Lands") situated in Lubbock County, Texas: Pipelines and Equipment Grantor hereby grants to Grantee a perpetual exclusive Easement to survey, construct, reconstruct, install, upgrade, operate, inspect, maintain, alter, relocate, replace, repair. and remove (hereinafter called "Permitted Uses") pipelines, conduits, drain (blow -off) valves, valve boxes, meters, meter boxes, vents, manholes, manhole covers, corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep well anode stations with power supplies, flow meters, system communication lines and splice boxes, pipeline trail road on non cultivated areas, and equipment and facilities related thereto, or any part thereof (hereinafter collectively called the "Pipeline System"), for and/or related to the transportation of water through, under, upon, over, across and within the Lands. Such perpetual exclusive Easement shall be 60 feet wide, as described in Exhibit A as attached hereto. Further, a temporary construction Easement is hereby -granted adjacent to the perpetual exclusive Easement which shall be an additional 60 feet, as described in Exhibit A as attached hereto. The temporary Easement shall terminate upon completion of all construction activities related to that portion of the Pipeline System that requires said temporary Easement as described in Exhibit B as attached hereto. Exhibit A is attached hereto and incorporated herein, and hereby made a part hereof by reference to describe the Easement and the Lands. This Easement is specifically made by Grantor and accepted by Grantee subject to the following terms, covenants, obligations and conditions: 1. Grantee may use and occupy the Easement for the sole purpose of: (a) the right to perform Permitted Uses related to the Pipeline System; (b) the right (for men, material, and equipment) of ingress and egress and regress to and from and access on and along said Easement granted herein, with the right to ingress and egress and regress to and from and access on and along said Easement, for the Permitted Uses; and (c) the right Kahlich Family Trust -- Pipeline Easement Agreement I to locate the Pipeline System through, over, under, upon, across and within the Easement for the purpose of water transportation. Grantee shall use the Easement for the Permitted Uses and Pipeline System and for no other purposes or uses. 2. Grantee covenants and agrees that its use of the Easement and its operations conducted thereon shall, to the best of Grantee's ability, at all times comply with all applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and Grantor's rules and regulations as shown on Exhibit C attached hereto, particularly, but not limited to, those regarding safety, cleanup and distribution and removal of soil, rock and/or trees. Grantee agrees to construct the Pipeline System, in compliance with all Legal Requirements, and with due care for Grantor's property, business and operations. Fences and gates installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made a part hereof. Grantor and Grantee shall each conduct its activities in such a manner as to not unduly interfere with or cause a disruption to the other's business, operations and property or those of other third parties entering or crossing the Easement. In the event it is discovered that Grantee is in violation of any portion of the Legal Requirements, Grantee agrees to commence, upon receipt of written notice of such violation, the process of curing such violation so that Grantee will be in compliance with this subparagraph. Upon completion of any construction project that is part of the Pipeline System and upon completion of any record survey, Grantee shall provide a copy to Grantor of the record survey showing the location of the Easement and Pipeline System and all other installed assets on the Grantor's lands. 3. If Grantee should abandon the Pipeline System, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns. Grantee may abandon the Pipeline System solely by a formal resolution of its governing body that authorizes the abandonment of the Pipeline System and that further resolves that Lake Alan Henry is no longer necessary as part of Grantees water supply. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Lands are located. 4. The Easement Term is hereby defined as the period of time beginning with the granting of the Easement and continuing until such time that the Easement is abandoned by Grantee. 5. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement in Kahlich Family Trust -- Pipeline Easement Agreement good order, condition and repair following any work related to Permitted Uses on the Pipeline System. 6. Grantee shall be responsible for obtaining all permits necessary to construct and operate the Pipeline System on the Easement. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality covering the Easement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 7. Within the Easement, Grantee shall have the right to cut fences and install gates to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, it shall be properly supported on either side of the contemplated opening by suitable posts and braces. 8. The Pipeline System shall be so located or shall be buried at a sufficient depth so it does not interfere with current cultivation of the soil at the soil levels as they exist at time of execution of this Easement. Following completion of construction, the surface area shall be returned to its preconstruction condition as nearly as practicable. If any of the property shall be grassland, Grantee shall apply grass seed with a native mix from seed that is available and that is the same as existing native grass or comparable to the native grass in the disturbed area. 9. This grant of Easement shall not preclude the right of Grantor to cultivate, use, and enjoy the Lands for any purposes which will not constitute an interference with the Easement, rights and privileges herein granted to Grantee, or endanger any of Grantee's property. However, the right reserved by Grantor as to the perpetual Easement shall not include the right to erect any buildings, reservoirs, structures, or other improvements on the perpetual Easement without the advance written permission of Grantee. 10. Grantor, his successors, assigns, or agricultural lessees or tenants, if any, are to be compensated, as set out herein under Paragraph 16, for all damages to the lands and personal property located thereon, including but not limited to fences, crops, livestock, drainage and/or irrigation systems, as a result or related to the Grantee's use or occupation of the lands pursuant to the rights granted by this Easement, including but not limited to construction, future operation and maintenance of the Pipeline System. Payment of these damages and for the value of this Easement by Grantee, subject to the terms of this Paragraph 10, will be in an amount agreed to by Grantor and Grantee and shall be a one-time payment as set forth in Paragraph 16, for any and all of such damages, whether occurring or accruing at or after the time of construction of the pipeline system. 11. Grantee shall exercise due care and diligence in the use of the rights and privileges herein granted to it. In case of abandonment of said Easement as provided in Kahlich Family Trust -- Pipeline Easement Agreement 3 Paragraph 3, the title and interest herein granted shall end, cease, and terminate, and title to the Easement, pipeline, equipment and facilities shall revert to the then owner of the Lands. 12. The grant of Easement herein contained is subject to all valid and subsisting easements, leases including oil, gas and wind energy leases, and rights -of -way of record affecting the Lands. 13. It is a condition precedent to the payment to the Grantor of the sum named herein that the title to the Lands described herein shall be vested in the Grantor, subject only to the interest of Grantee hereunder and to the matters set out in Paragraph 12 hereof and to such other defects, interests, or encumbrances as may be waived in writing by Grantee. Grantor shall provide to Grantee an executed release from any lien holder, tenant, lessee, or other party having an interest in the Easement prior to payment of the compensation called for in Paragraph 16 hereof. 14. Grantor shall procure and have recorded without cost to Grantee all assurances of title and affidavits which the Grantor may be advised by Grantee are necessary and proper to show in Grantor title sufficient to grant the above easement free and clear of encumbrances other than those encumbrances expressly defined herein. Abstracts or certificates of title or title insurance may be procured by the Grantee at its expense. The expense of recording this Easement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, if necessary, to obtain any curative documents needed. 15. If Grantee, in its sole discretion, determines that the Easement conveyed to Grantee and described herein should be acquired by judicial procedure, either to procure a safe title or for any other reason, then Grantor and Grantee hereby stipulate that the ultimate award to the Grantor for the Easement conveyed to Grantee and described herein, shall be the same as the purchase price hereinafter stated in Paragraph 16, but should the Grantor own a lesser interest than that Easement conveyed to Grantee and described herein, such award shall not exceed that portion of the purchase price stated in Paragraph 16 which the value of such lesser easement conveyed to Grantee bears to the value of the entire Easement described herein. 16. As complete consideration for the above grant of easement and for all the rights and privileges granted to the Grantee in this agreement, Grantee agrees to pay Grantor the one time sum of Thirteen Thousand Six Hundred Fifty -Three and 89/100ths Dollars ($13,653.89). 17. "Grantee" when used in this instrument, shall include The City of Lubbock's officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. Kahlich Family Trust -- Pipeline Easement Agreement 4 18. Words of any gender used in this agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 19. A. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs), that may be suffered or incurred by Grantor, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement after the effective date of this agreement to the extent caused by Grantee's or its employees, contractors, or agents negligence or willful misconduct. B. When any losses, claims, demands, or causes of action of the types described in Section A of this paragraph are the result of joint or concurrent negligence or willful misconduct of Grantee or their respective employees, contractors or agents, each party's duty of indemnification will be in proportion to its allocable share of such joint liability to the extent permitted by law, as determined by a court of competent jurisdiction. C. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the easement and/or any rights granted hereunder, and Grantor shall be solely limited to the remedy of actual money damages for such claims, subject to those limitations contained in Paragraph 26 hereunder. 20. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold Grantor harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities of whatsoever nature arising from pollution or contamination emanating from the Pipeline System and equipment of Grantee arising from or relating to the performance of this agreement (the "Grantee pollution liabilities"). For the avoidance of doubt, "Grantee pollution liabilities" shall exclude any such pollution liabilities arising from any condition existing before the effective date of the Easement. Grantor agrees to release, indemnify, defend, and hold Grantee harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities of whatsoever nature arising from (I) pollution emanating from the property and equipment of Grantor, (II) any condition existing before the effective date of the Easement, (III) pollution or contamination migrating or having migrated on, under, or to the Easement from any other location, and (IV) the possession, occupation or use of the remaining portions of the Grantor's adjacent property. 21. It is understood and agreed that this Easement is not a conveyance of the fee estate for any of the Lands covered hereunder, but is only an easement through, over, under, upon, across and within the Lands. 22. The provisions of this Easement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. Kahlich Family Trust -- Pipeline Easement Agreement S 23. This Easement contains the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. 24. In case any one or more of the provisions contained in this Easement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Easement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 25. Any notices or demands provided to be given herein by the parties shall be in writing and mailed by certified or registered mail to the other party at the address set forth above. Any notice or demand shall be deemed to have been received the earlier of five (5) days after the date of mailing or the date of actual delivery as shown by the addressee's certification or registry receipt. 26. Limitation on certain types of damages. Neither party shall be liable to the other party or any of such party's affiliates in any action or claim, including without any limitation, any action or claim for indemnity under Paragraphs 19 and 20, above, for loss of profit, loss of product, loss of use, or for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 27. Grantee agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not interfere with or endanger the operations or integrity of Grantee's Pipeline System and Permitted Uses. Additionally, the Grantor will not construct any facilities or perform any activities in or around the Easement and Lands that may violate federal and state regulations regarding the protection of drinking water supplies and facilities that convey such water. Grantor and Grantee agree and hereby give notice to any subsequent mineral, water, wind or energy lessee or grantee of any interest overlying or underlying the Lands owned by Grantor and the Easement, that Grantee will be operating the Pipeline System as a Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted on or in the vicinity of the Easement and Lands which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. Further, no structure shall be placed on the Easement, which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. A. To the extent that Grantor owns any portion of the mineral and/or royalty interest under the Lands defined herein, Grantor surrenders and releases its surface drilling rights and all other rights of surface use of the Easement and Lands incident to Kahlich Family Trust -- Pipeline Easement Agreement the production of oil, gas, hydrocarbons, minerals, wind energy, and water production subject to the following exception and limitation: i) Grantor reserves and excepts from this release and retains for itself, its successors and its successors -in -interest, all rights to explore for, to drill and produce oil, gas and other hydrocarbons underlying or situated beneath the Easement and Lands by any means whatsoever, including wells directionally drilled from surface location on nearby lands so long as no surface operations are performed on the Easement and so long as such operations will not interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. ii) Grantor shall include the surface use restrictions and covenants provided herein in any subsequent lease or conveyance of the oil, gas and/or mineral estate, wind rights or interests and water rights or interests. 28. Grantee shall have the right to approve the location and means of future third -party pipelines which will cross Grantee's pipeline system. Grantee will not withhold reasonable crossing requests, but will act in a manner to protect Grantee's pipeline system. TO HAVE AND TO HOLD said Easement unto Grantee, its successors and assigns for so long as the same shall be used for the purposes aforesaid subject to the terms and conditions hereof. [ Signatures of the Parties on Next Page ] Kahlich Family Trust -- Pipeline Easement Agreement 7 EXECUTED this day'of 2010 "Effective Date" GRANTOR: BERNICE E. KAHLICH, Sole Trustee of The Kahlich Family Revocable Trust 1996, and Sole Trustee of The Leonard J. Kahlich Residuary Estate Trust, both created under trust agreement dated August 27, 1996, as amended GRANTEE: The City of Lubbock Name: l u in &chn Title: Maqb r [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: — wa4�:� Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Terry Gr Attorney Kahlich Family Trust -- Pipeline Easement Agreement 8 STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me onLffLpr- 6 , 2010, by BERNICE E. KAHLICH, Sole Trustee of The Kahlich Family Revocable Trust 1996, and Sole Trustee of The Leonard J. Kahlich Residuary Estate Trust, both created under trust agreement dated August 27, 1996, as amended. _ '/tie01 No NbIic\,-StatebffVxas Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on OC46b?v' Iq , 2010, by TOM MARTIN on behalf of the City of Lubbock, a Texas Home Rule Corporation on behalf of said Texas Home Rule Corporation. E,:ELISASANCHEZ Public, State of Texasission Expires 11012011 Notary Public, State of Tew _ t � San C-he z Printed Name of Notary My commission expires: I I 'iJ N-0 Exhibits: "A" - Centerline Metes and Bounds Description of Pipeline System "B" - Survey Plat(s) of Centerline of Pipeline System "C" - Pipeline Right -Of -Way Safety Guidelines "D" - Gate Construction Detail and Specifications Kahlich Family Trust -- Pipeline Easement Agreement 9 Exhibit A Metes and Bounds Description of the Perpetual Exclusive Easement and The Temporary Easement Resolution No. 2010-RO187 EXHIBIT "A" PARCEL NO. 74 THE KAHLICH FAMILY REVOCABLE TRUST Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Northwest Quarter of Section 59, Block S, Lubbock County, Texas and said pipeline centerline being described as follows: Beginning at a 'b" iron rod with cap, set In the East line of said Northwest Quarter of Section 59,Block S, for the beginning of this description and in a curve to the left, from whence a railroad spike found in the Northeast corner of said Northwest Quarter of Section 59, Block S, bears North 1007'44" East, a distance of 1413.44 feet, said point of beginning having a project coordinate of Y = 7225096.31 and X = 981885.93; Thence along the arc of a curve to the left and being along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, an arc distance of 37.87 feet to a point for the end of this curve, said curve having a radius of 575.00 feet and delta angle of 3046'24"; Thence North 47058'55" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 2118.50 feet to a 1/2" iron rod with cap, set in the North line of said Section 59, Block S, for the end of this description, whence a railroad spike found for the Northwest comer of said Section 59, Block S, bears North 88054'18" West, a distance of 1013.28 feet. Containing 130.69 rods. (2.97 acres) The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat and said temporary construction easement contains 2.80 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 0 HIGH-TECHLAND AND GM6URVEYORS, INC. 3330 70th St., Suite 202 • Lubbock, Texas 79413 (806) 788-0020 • Fax (806) 792-1646 Exhibit B Survey Plat(s) of Centerline and Description of that portion of the Pipeline System Requiring the Easement and Temporary Easement Resolution No. 2010—RO187 EXHIBIT ' � 74 Mary Taylor Estate Vo1.201 P9.552 73 60 lol3.28' I N 8° 54'18" W 4 ' FD. R.R. SPIKE FD. R.R. SPIKE 77 C 60' Permanent Easement ,�\ \ &T Temporary s•��� \ Const. Esmt. M ��• \ 2.80 Ac. 1;,;�: to sad �\ oo Doyle Chores Buxkemper CN �� ") Cynthia Gall Buxkemper N Vol.10220 Pg.113 w N. W. 1 /4 66GT I ON 59, 01.OGK 6 w o L-U660GK GOUNTY, TEXAS-P.O.B. Y-7225096.31 ° ^o x-981885.93 R- 575.00' N z 7 4 L- 37.8r DELTA- X46124' z The Kohlich Famlly W E Revocable Trust Vol.5306 Pg.226 130.69 Rods - Permanent Esmt. f297 Ac. - Permanent Esmt.l S 7 7 FD.�/z" ROD 78 P\FD, 1" PIPE N 88° 53-34" W 2644,8'------' •- Set I/2" Rod With Cap A legal description of even survey date herewith accompanies this survey plat. Su ed on the nd March -May, 2009 Registere rofessional Land Surveyor Date: �—¢— All Northings and Eastings shown are protect coordinates and may be converted to Texas State Plane Coordinates, North Central Zone, NAD83 by dividing by a surface SI adjustment factor of 1.0002396 CI Alldistances shown are surface distances. DI Bearings shown are grid bearings based on the Texas SI State Plane Coordinate System, North Central Zone, FI NAD83 Datum. This survey and allinformation hereon is for the exclusive use of CITY OF LUBBOCK and shallnot be copied or used except for the purpose for which it is expressly furnished. this drawing and allcopies (partiolor complete) shallbe returned to the owner upon demand. LE:1' - 600' I REVISION= I PLAT DATE: 5-15-09 NT: PARKHILL SMITH & COOPER - CITY OF LUBBOCK WIN BY: B. BURROW I SURVEY DATE: 3-5,2009 VEYED BY: J.M. MARTIN r CHECKED BY: G. W►LSON : PAR74.dgn I FILE NO.35.760 1 SHEET 1 OF 2 Hl',11-ZECH LN014 CPS S wInK. 3330 701h ST.. SUITE 202 - LUBBOCK. TX, 79413 t806) 7BB-0020 - FAX (M) 792.1646 Resolution No. 2010-R0187 Exhibit C PIPELINE EASEMENT SAFETY GUIDELINES So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the pipeline Easement (the "Easement"), as well as applicable laws and regulations: I. Except during construction, operation, inspection, or maintenance of the Easement, Driving on the Easement is limited to use of currently established roadways, if any. 2. Permission on the Easement does not preclude the need to make a one -call to notify third - party pipeline owners of planned work. 3. Smoking outside vehicles within the Easement or lands or premises is prohibited. 4. No firearms, drugs, alcohol or cameras are permitted in the Easement. 6. Pedestrians and non -motorized traffic has right-of-way over motorized traffic 7. The maximum speed limit is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 8. Use horn for safety at blind corners and when passing. 9. Use established hand signals or turn indicators 10 Observe all signs including pipeline markers. 11. Come to complete stop on entering or leaving the Easement gates. 12. All persons entering the Easement must be fully clothed. 13. Grantee and personnel of Grantee are granted the right to temporarily use Grantor's property directly located outside of the Easement for such reasons as: a) avoidance of machinery, construction or equipment located on the Easement; and b) detouring around natural impediments such as rocks, trees or existing fences or structures; and c) repair, removal or maintenance of equipment or vehicles stranded on the Easement. 14. No debris or trash shall be discarded on the Easement. Exhibit D Gate Construction Detail and Specifications Resolution No. 'LULU-RU18/ Vx9'-6" SCH. 40 PIPE W/V4" (_ _ 14'-0" I NOTES FOR FENCES AND GATES: TOP PLATE -- I" — — 3" COLLAR 2" SCH. 40 PIPE i ig-_ �azm .UM IS■■■e■■■■■■!■H■■■T f■f»�� ■ ■■■■1•■■■■1■num"■■ al f 11�■rt■L� ���■■■■■■ lid a)• t■!♦=1�■I�■�lllll■■Ih::,,, 1� ?" SCH. } 2- SCH. 40 PIPE 10 PIPE s I CONCRETE MI< Vi' GUSSET PLATE WELD ALL AROUND (TYPICAL) NOTE: ALL CONNECTIONS ARE WELDED ALL AROUND. GATE DETAIL SCALE: 1 /2"=1'—O" 8'-0" 8'-0" 6"x9'-6" SCH. SINGLE SWING 2" SCH. 40 PIPE 40 PIPE W/W' GATE SECTION TOP PLATE aD r O ` = W =M O W 10 io d O LL N SEE NOTE 5 J �� SEE DETAIL 'C" n io 4"x4" MESH WELD 18" DIA. TO GATE FRAME —6" SCH. T — SHAPE POST d HOLE (TYP.) 1- LONG ON 6" C/C W/V<" i 6'-6" LONG (1.33 #/FT.) 4TE W/ANCHOR PLATE TAIL "A" IEET v H b CONCRETE 1. GATES TO BE INSTALLED AT ALL FENCE CROSSINGS, UNLESS OTHERWISE DIRECTED BY THE OWNER. 2. ALL STEEL GATES, POSTS, CROSS BRACES, ETC., SHALL BE PAINTED BLUE. 3. PROVIDE 1" LINK CHAIN AROUND GATE AND 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 HIRE SHALL BE 12A GA. GALVANIZED BARBED YORE. MINIMUM 5 STRAND FENCE OR AS PER EXISTING FENCE. WHICHEVER IS GREATER. WHERE EXISTING FENCE HAS PANEL FABRIC, INSTALL 39" PANEL FABRIC WITH 3 STRAND BARBED WIRE, 47' PANEL FABRIC WITH 1 STRAND BARBED WIRE MINIMUM OR AS PER EXISTING, WHICHEVER IS GREATER. 6. CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONNECT TO EXISTING FENCE. PRIOR TO CUTTING EXISTING FENCE, 7. DIMENSIONS SHOWN ARE FOR FENCES CROSSING AT PERPENDICULAR ANGLE TO PIPELINE. WHERE FENCE CROSSES PIPELINE AT SKEWED ANGLE, DIMENSIONS SHALL BE INCREASED ACCORDINGLY. TYPICAL GATE SUPPORT DETAIL SCALE- 1 /Y"-1'—O" csa r- d- a-h 0 W Q N Y rm V V W o uw u X a y N m 3 T N Lo ca , u C N Z a - `u o m W a J 0 Y m LL N - 0 m O N a n N WILL ILLO 3 J a —AN H Y v U. Y �9 , 'i .0 W.