HomeMy WebLinkAboutResolution - 2010-R0353 - Contract For Purchase Of Easement - E.R. Bednarz Trust - 08_12_2010Resolution No. 2010-RO353
August 12, 2010
Item No. 5.10
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, a Contract for Purchase of Easement
for certain pipeline easement interests located on certain property in Lubbock County,
Texas, owned by E. R. Bednarz Trust, by and through Eugene Bednarz Trustee, 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 August 12, 2010
TOM MARTIN, MAYOR
ATTEST:
Reb cca Garza, City Secretary
APPROVED AS TO CONTENT:
hi a-�L� � � -g=d -
Marsha Reed, P.E., Chief Operation Officer
'�� &z&
Dave Booher, Right -of -Way Agent
APPROVED AS TOFORM:
Res -Contract for Purch Easement-Bednarz Trust 7,27 10
Contract: 9658
Resolution No. 2010—RO353
CONTRACT FOR PURCHASE OF EASEMENT
This Contract For Purchase of Easement (the "Contract") is made on this 12th day of
August , 2010 ("Effective Date"), by and between The E. R. Bednarz Trust, by and through Eugene
Bednarz, Trustee (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 Purchase Price. T Purchase Price to be paid to Seller for the Easement described herein is the sum
ofA;4 ��Nr4/ , go Dollars ($S $ p/G. 355i (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 Sellers 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 Buyers 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 Buyers 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 Exceptions (herein so called); 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);
(ii) no exception will be permitted for "visible and apparent easements" or words to that effect;
(iii) 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
E.R. Bednarz 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 Easement 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
E.R. Bednarz 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:
E.R. Bednarz Trust
5018 E FM 41
Slaton, TX 79364
Copies to:
For Seller:
BUYER:
Attn: Dave Booher
City of Lubbock
1625 13th Street
Lubbock, Texas 79401
Telecopy: (806)775-3074
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
E.R. Bednarz 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 _ day offLL' 2010.
SELLER:
E.F' L TRUST
wry
By:
EUGENEAbEDNARZ, Trustee
Executed by Buyer on the 12th day of August 2010.
CITY OF LUBBOCK
TOM NIARTIN, MAYOR
ATTEST:
�qebdpca Garza, City Secretary
CONTRACT OF SALE
E.R. Bednarz Trust — City of Lubbock
APPROVED AS TO CONTENT:
ajJ� q 0 0 /1
Marsha Reed, P.E., Chief Operations Officer
Dave Booher, Right -of -Way
APPROVED
Ryan J Bi ee,/glrney for the City
of Lu oc
CONTRACT OF SALE
E.R. Bednarz Trust — City of Lubbock
Exhibit "A" to
Contract of Sale
EASEMENTFORM
Resolution No. 2010-RO353
CONTRACT OF SALE
E.R. Bednarz Trust — City of Lubbock
Resolution No. 2010-RO353
EASEMENT
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS, THAT:
COUNTY OF LUBBOCK §
The E.R. Bednarz Trust, by and through Eugene Bednarz, Trustee, with a street address
of 5018 E FM 41, Slaton, Lubbock County, TX 79364 (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 13th Street, Lubbock, Texas 79401, the receipt and sufficiency of
which are hereby acknowledged, has granted and does by these presents grant unto Grantee an
easement, servitude and right-of-way through, over, under, upon, and across the land described
in Exhibit "A" (hereinafter called the "Land") situated in Lubbock County, Texas:
Pipelines and Equipment
Grantor hereby grants to Grantee the Easement to survey, construct, reconstruct, install,
upgrade, operate, inspect, maintain, alter, relocate, replace, repair, and remove within the
boundary of the herein described Easement (hereinafter called "Permitted Uses") pipelines,
conduits, drain (blow -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,
(hereinafter collectively called the "Pipeline System"), for and/or related to the transportation of
untreated potable water through, under, upon, and over the Land. Such Easement shall be 60 feet
wide, as described in Exhibit "B" as attached hereto (herein referred to as the "Easement" or
"Easement Land"). Further, a temporary construction Easement is hereby granted parallel and
adjacent to the Easement which shall be an additional 60 feet, as shown on the survey plat
attached hereto as part of Exhibit "B". The temporary Easement shaII terminate upon
completion of all construction activities on the herein described Land.
Terms and Conditions
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, and (c) the right to locate the Pipeline System
through, over, under, upon, across and within the Easement for the purpose of untreated
potable water transportation. Grantee shall use the Easement for the Permitted Uses and
Pipeline System and for no other purposes or uses.
E.R. Bednarz Trust -- Pipeline Easement Agreement
2. Grantee covenants and agrees that its use of the Easement and its
operations conducted thereon shall, to the best of Grantee's ability, at all times comply
with all applicable local, state and federal laws, orders, rules, regulations, standards,
licensing, permitting and other legal requirements including, without limitation, all
environmental laws, orders, rules, regulations, standards, licensing and permitting (the
"Legal Requirements"). Grantee agrees to construct the Pipeline System, in compliance
with all Legal Requirements, and with due care for Grantor's agricultural activities on the
Land and Grantor's adjacent property.
3. If Grantee should abandon the Pipeline System, then this Easement and
the rights herein granted shall automatically terminate and revert to, and become property
of, Grantor, its successors and assigns. Abandonment shall be irrebuttably presumed
upon the adoption of a formal resolution of Grantee's governing body that authorizes the
abandonment of the Pipeline System.
4. The "Easement Term" is hereby defined as the period of time beginning
with the granting of the Easement and continuing until such time that the Easement is
abandoned by Grantee.
5. Grantee shall at all times during the Easement Term, at Grantee's sole cost
and expense, keep and maintain the Pipeline System in good order, condition, and repair
(ordinary wear and tear excepted), and in such condition as may be required by
applicable Legal Requirements. Grantee shall keep the Easement in good order,
condition and repair following any work related to Permitted Uses on the Pipeline
System.
6. Grantee shall be responsible for obtaining all permits necessary to
construct and operate the Pipeline System on the Easement. Without limiting the
foregoing, and to the extent required, Grantee will secure and maintain any and all
environmental permits required by the Texas Commission on Environmental Quality
covering the Easement. Grantee will provide Grantor with a copy of Grantee's
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. Fences and gates installed by Grantee shall meet the specifications described
in, and be installed as specified in, Exhibit "C" attached hereto and made a part hereof.
8. The Pipeline System shall be so Iocated or shall be buried at a depth of at
least sixty (60) inches below the surface of the ground. All ditches dug for such purposes
shall be double cut with subsurface soil first returned into the ditch over the pipeline and
then top soil replaced above the base soil. Any rocks brought to the surface shall be
placed back in the ditch below forty (40) inches from the surface of the ground or
removed from the Land. Any Bottom Soil remaining after filling the trench in which the
E.R. Bednarz Trust -- Pipeline Easement Agreement 2
pipeline is located shall (i) on cultivated lands, be removed from the Easement Area and
disposed of on the property of Grantor in a place of Grantor's choosing, 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.
9. Grantee shall compact the soils in the pipeline ditch sufficiently to prevent
sinking and settling, restore the contour of the Land to its original condition as nearly as
possible. In furtherance of the foregoing, Grantee shall inspect the Pipeline at an interval
of (i) six months, and (ii) twelve 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.
10. This grant of Easement shall not preclude the right of Grantor to fully use
and enjoy the Land, except as may be necessary for Grantee's purposes herein provided,
however, (A) no buildings, structures or reservoirs may be constructed upon the
Easement, (B) improvements (other than drip irrigation lines and overhead irrigation
equipment) may not parallel the Pipeline within the Easement Land, (C) all power lines,
metallic pipelines, and telecommunication lines hereafter installed by Grantor must cross
the Easement at no less than a 45° (forty-five degree) angle, (D) all underground power
lines and any metallic pipelines (excluding irrigation water lines and water distribution
lines used to service Grantor's property) hereafter installed by Grantor must have a
minimum separation of two feet (2') from the water pipeline and shall be installed and
constructed in accordance with generally accepted engineering practices, and (E) fences
constructed by Grantor that cross the Easement must have gates installed so that Grantee
may have access to and along the Easement at all times.
11. In case of abandonment of said Easement, as provided in Paragraph No. 3
above, the title and interest herein granted shall end, cease, and terminate, and title to the
Easement shall revert to the then owner of the Land.
12. The grant of Easement herein contained is subject to all valid and
subsisting easements, leases including oil, gas and mineral leases and wind energy leases,
and rights -of -way of record affecting the Land.
13. 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 reasonably cooperate and aid Grantee, if necessary, to obtain
any curative documents needed.
14. 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
E.R. Bednarz Trust -- Pipeline Easement Agreement
ultimate award to the Grantor for the Easement granted to Grantee and described herein,
shall be the same as the consideration hereinafter stated in Paragraph No. 14.
15. As consideration for the grant of this Easement, Grantee agrees to pay
Grantor a sum equal to Eighty-five Dollars ($85.00) per rod multiplied by the number of
rods, and/or fractions thereof, for the length of the Easement crossing the Land. It is
agreed that should Grantor own an interest in the Easement Land that is less than the
entire fee simple estate, then the consideration to be paid shall be reduced
proportionately.
16. Upon completion of construction, Grantee shall (i) remove all rock,
gravel, caliche, or other materials foreign to the natural condition of the Land; (ii) level
and fill with top soil all holes, ruts, or other surface disturbances in such a manner as to
restore same to the natural contour of the surrounding property; (iii) clean the area to the
end that all objects, materials, and structures foreign to the natural condition of the Land
are removed and eliminated; (iv) in the event any of surface disturbance on grassland,
Q�/• Grant&F shall plant a seed mix of grass and forbes in the area of such disturbance and re-
establish grass cover; and (v) otherwise restore the surface of the Land to its original
condition as nearly as reasonably possible.
17. After completion of construction, and except in cases of emergency,
maintenance or repair, on cultivated land, vehicular ingress, egress and regress shall be
permitted in, but limited to, the use of then -existing roadways and turn rows Grantor has
on his property.
18. Grantee, at its sole cost and expense, shall repair or replace in good and
workmanlike manner any underground lines or other improvements of any kind that it
may damage during construction, maintenance, or removal of its pipelines.
19. Grantee agrees that, except as may be reflected in Exhibit "D" attached
hereto, no above ground equipment and/or facilities related to the Pipeline System shall
be installed, constructed, or otherwise located on cultivated ground located within the
Easement. Grantee further agrees any future installation, construction, and location of
such equipment and/or facilities shall be limited to the boundary lines of the Land or
along turn -rows existing as of the date hereof.
20. Grantee shall not permit any of its employees, contractors, subcontractors,
agents, or other third parties acting on behalf of Grantee who may enter upon the Land
under the authority of this grant to (i) bring upon the Land any alcoholic beverage or
illegal drugs, or (ii) to hunt on any portion of the Land or to take or carry any firearms
thereon for any purpose whatsoever. Grantor, or Grantor's representatives, shall have the
right to deny access or to expel from the Land anyone carrying any such prohibited
substances or any form of firearm.
E.R. Bednarz Trust -- Pipeline Easement Agreement 4
21. "Grantee" when used in this instrument, shall include The City of
Lubbock's officers, agents, servants, employees, representatives, contractors,
independent contractors, subcontractors, invitees, and/or their equipment or vehicles.
22. 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.
23. 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.
24. TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTEE
HEREBY RELEASES AND AGREES TO HOLD HARMLESS AND DEFEND
GRANTOR FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
CAUSES OF ACTION, SUITS, LOSSES, DAMAGES (INCLUDING PUNITIVE
DAMAGES), COSTS, FINES, PENALTIES, AND EXPENSES OF ANY NATURE
WHATSOEVER (INCLUDING WITHOUT LIMITATION REASONABLE
ATTORNEY'S FEES, COSTS, AND EXPENSES INCURRED IN
INVESTIGATING AND DEFENDING AGAINST THE ASSERTION OF
LIABILITY, AS SUCH FEES, COSTS, AND EXPENSES ARE INCURRED)
WHICH MAY BE SUSTAINED, SUFFERED, OR INCURRED BY GRANTOR,
ARISING FROM GRANTEE'S ACTIVITIES OR OPERATIONS UPON THE
HEREIN DESCRIBED LAND, TO THE EXTENT CAUSED BY GRANTEE.
SUCH OBLIGATION TO HOLD HARMLESS AND DEFEND SHALL,
WITHOUT LIMITATION, COVER BODILY INJURY, DEATH, DAMAGE TO
PROPERTY OR NATURAL RESOURCES, AND COMPLIANCE WITH ANY
GOVERNMENTAL RULE, REGULATION, ORDER, DIRECTIVE, OR
DEMAND REGARDING THE TESTING FOR, MONITORING, CLEAN UP,
REMEDIATION, OR REMOVAL OF ANY CONTAMINANTS, POLLUTANTS,
HAZARDOUS MATERIALS, OR OTHER TOXIC SUBSTANCES. NOTHING IN
THIS PARAGRAPH OR IN THE EASEMENT AGREEMENT SHALL BE
CONSTRUED AS A WAIVER OF ANY DEFENSES WHATSOEVER THAT
GRANTEE (THE CITY OF LUBBOCK) MAY HAVE UNDER ANY LAW,
INCLUDING BUT NOT LIMITED TO ANY DEFENSES OR LIMITATIONS
CONTAINED IN THE TEXAS TORT CLAIMS ACT OR ITS SUCCESSOR
PROVISIONS. GRANTEE RESERVES ALL DEFENSES AND LIMITATIONS
TO WHICH IT IS ENTITLED UNDER ANY AND ALL APPLICABLE LAWS.
25. It is understood and agreed that this Easement is not a conveyance of the
fee estate for any of the Land covered hereunder, but is only an easement through, over,
under, upon, and across the herein described Land.
26. The provisions of this Easement shall be binding upon and inure to the
benefit of the successors and assigns of the respective parties hereto.
E.R. Bednarz Trust -- Pipeline Easement Agreement 5
27. 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.
28. In case any one or more of the provisions contained in this Easement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions hereof, and
this Easement shall be construed as if such invalid, illegal or unenforceable provisions
had never been contained herein.
29. 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.
30. Grantor will not construct any facilities or perform any activities within
the Easement that may violate federal and state regulations regarding the protection of
drinking water supplies and facilities that convey such water. However, this restriction
shall not preclude Grantor, or its successors and assigns, from applying on and/or around
the Easement Land such fertilizers, herbicides, pesticides, or other chemicals approved by
the United States Environmental Protection Agency. Grantor and Grantee hereby give
notice to any subsequent mineral, water, wind or energy lessee or grantee of any interest
overlying or underlying the Easement, that Grantee will be operating the Pipeline System
within the Easement boundary in accordance with the Permitted Uses as defined herein.
To the extent that Grantor owns any mineral and/or royalty interest in and under the
Easement, Grantor waives and surrenders its rights to use the surface of the Easement for
the exploration and development of the mineral estate and/or the construction of surface
facilities related to the development of wind energy generation or production.
31. Grantee shall have the right to approve the location and means of future
third -party pipelines which will cross Grantee's pipeline system. Grantee will not
withhold reasonable crossing requests, but will act in a manner to protect Grantee's
pipeline system.
TO HAVE AND TO HOLD said Easement unto Grantee, its successors and
assigns for so long as the same shall be used for the purposes aforesaid subject to the
terms and conditions hereof.
EXECUTED this day of July, 2010 ("Effective Date")
[ Signatures of the Parties on Next Page ]
E.R. Bednarz Trust -- Pipeline Easement Agreement
GRANTOR:
E.R. BEDNARZ TRUST
By:_ qz2a'
EUG E 8EtrAW, Tru e
GRANTEE:
The City of Lubbock
TOM MARTIN, Mayor
APPROVED AS TO CONTENT:
Marsha Reed
Chief Operations Officer
APPROVED AS TO FORM:
Ryan Bigbee
Attorney
E.R. Bednarz Trust -- Pipeline Easement Agreement .T
{Acknowledgements}
STATE OF TEXAS
COUNTY OF LUBBOCK
This instrument was acknowledged before me on , 2010, by
EUGENE BEDNARZ, in his/her capacity as Trustee of the E.R. BEDNARZ 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 TOM
MARTIN on behalf of the City of Lubbock, a Texas Home Rule Corporation on behalf of said
Texas Home Rule Corporation.
Notary Public, State of
Printed Name of Notary
My commission expires:
STATE OF TEXAS §
COUNTY OF LUBBOCK §
This instrument was acknowledged before me on , 2010, by TOM
MARTIN, Mayor.
Notary Public, State of Texas
Printed Name of Notary
My commission expires:
E.R. Bednarz Trust -- Pipeline Easement Agreement 8
Exhibits: A - Description of Grantor Property
B - Metes and Bounds Description and Survey Plat of Pipeline System
C - Gate Construction Detail and Specifications
D - Drawing of Above Ground Improvements
E.R. Bednarz Trust -- Pipeline Easement Agreement 9
Resolution No. 2010-RO353
EXHIBIT "A"
Description of Grantor Property
West''/2 of Section 30, Block 24, Lubbock, Lubbock County, Texas
EXHIBIT "B"
Metes and Bounds Description of the Permanent
and Temporary Easement and Survey Plat
�
M
The E.R. Bednorz Trust
Vol.8721 Pg.74
l l ads -Permanent smt.
12.46 Ac. - Permanent esmo
W. 1 /2 51iGr ION 30) 15t OGK 21
LU0bOGK GOUNtY,TEXAS
40
bg6 1 NG tKAGT 2,
KItt6N 6UOPIV1610N
35
&R6009060 IN V. 519, P. 62 0660 REGOR05&
FD. 8" PIPE,,
ON CORNER
S 880 27'31" E 2652.8'
• - Set /2" Rod With Cap
A legal description of even survey date herewith
accompanies this survey plat.
S ed on th rch-Ma fT'f
Register d rafessionall-and S�` ®�
v eeo���oocc0°Oe°eoea-
Dote: Doug..
-0.6 nIR$8Wt°Li- 4
All Northings and Eastings shown
and may be converted to Texas V'�Jates
dinates,
North Central Zone, NAD83 by dividin ,41g,. rice SCALE:1' - 600' RE'
adjustment factor of 1.0002396 CLIENT: PARKHILL S
All distances shown are surface distances. DRAWN BY: B. BURR
Beorings shown ore grid bearings based on the Texas SURVEYED BY: J.M.
State Plane Coordinate System, North Central Zone, FILE: PAR70.d n
NAD83 Datum.
ON
Resolution No. 2010—RO353
EXHIBIT
Poge 1 of 3
59 56 Danny Kitten
Vol. 5094 Pg. /8l
608 3' N 0'59'12' E 39.37'
F0.'/Z" ROD N 89000'38" W 2657,T
\\;\�;............... FD. R.R. SPK!
l,T 42J8' �
5 .�
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60' Permanent
zo Easement \�
ago: ���`.
J. & L. Kitten
0); i 60' Temporary Famlly Trust
Const. Esmt. - z Vol. 7562 Pg. 126
3 2..32 Ac.
P.O.B.
Y-7219927.67
0 X•986487.99
w
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E
I PLAT DATE: 5-11-
DPER - CITY OF LUBBOC
SURVEY DATE: 3-5,20
CHECKED BY, G. WILSON
NO.35,760 SHEET 1OF
This survey and allinformation hereon is for the exclusive use of VM-ILCH LNG V WS S IMIK.
3370 70�h �2' 1�8OdtTXTWu
CITY OF LUBBOCK 711CK.
and shallnot be copied or used except for the purpose for which
it is expressly furnished. this drowin❑ and all cnnips tnnrilminr
EXHIBIT `' G- '
Page 2 of 3
PARCEL NO. 70
THE E.R. BEDNARZ TRUST
Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being
located in the West 1/2 of Section 30, Block 24, Lubbock County, Texas and being out of Tract 2, Kitten
Subdivision recorded in Volume 519, Page 62, Deed Records Lubbock County, Texas, said pipeline
centerline being described as follows:
Beginning at a 1/2" iron rod with cap, set in the East line of a tract of land located in Section 30, Block
24, Lubbock County, Texas as recorded in Volume 8721, Page 74, Lubbock County, Texas, for the
beginning of this description, from whence the Northwest comer of said Section 30, Block 24, bears
North 1036'40" East, a distance of 1222.85 feet and North 89000'38" West, a distance of 2657.1 feet,
said point of beginning having a project coordinate of Y = 7219927.67 and X = 986487.99;
Thence North 59056'52" West, along the centerline of said Sixty -Foot (601 wide permanent pipeline
easement, a distance of 372.63 feet to the beginning of a curve to the right;
Thence along the arc of a curve to the right and being along the centerline of said Sixty -Foot (601
wide permanent pipeline easement, an arc distance of 215.44 feet to a point for the end of this curve,
said curve has a radius of 575.00 feet and delta angle of 21°28'04";
Thence North 3802848" West, along the centerline of said Sixty -Foot (601 wide permanent pipeline
easement, a distance of 685.04 feet to the beginning of a curve to the left;
Thence along the arc of a curve to the left and being along the centerline of said Sixty -Foot (601
wide permanent pipeline easement, an arc distance of 125.29 feet to a point for the end of this curve,
said curve has a radius of 575.00 feet and delta angle of 12°29'03";
Thence North 50057'51" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 363.72 feet to a point in the centerline of said Sixty -Foot (601 wide
permanent pipeline;
Thence North 0059'12" East, along the centerline of Said Sixty -Foot (601 wide permanent pipeline
easement, a distance of 25.00 feet to a '/z" iron rod with cap, set in the South Right of Way line of
F.M. 41, for the end of this description, whence the Northwest comer of Section 30, Block 24, bears
North 0059'12" East, a distance of 39.37 feet and North 89000'38" West, a distance of 1342.18 feet.
Containing 108.31 rods. (2.46 acres)
U,
Exhibit " F
Page 3 of 3
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 2.32 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
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Resolution No. 2010-RO353
Exhibit "C"
Gate Construction Detail and Specifications
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Drawing of Above Ground Improvements
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17 PGS
ASEMENT
Resolution No. 2010-RO353
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS, THAT:
COUNTY OF LUBBOCK §
Eugene Bednarz, Sole Trustee of the E.R. Bednarz Trust created under the Will of W.L.
Bednarz, Sr., Deceased (Cause No. 2002-768,567, County Court, Lubbock County, Texas), and
under the Will of Irma Marie Bednarz, Deceased (Cause No. 2003-769,311, County Court,
Lubbock County, Texas) with a street address of 5018 E FM 41, Slaton, Lubbock County, TX
79364 (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 13th
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
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.
Eugene Bednarz -- Pipeline Easement Agreement 1
2. Grantee covenants and agrees that its use of the Easement and its
operations conducted thereon shall, to the best of Grantee's ability, at all times comply
with all applicable local, state and federal laws, orders, rules, regulations, standards,
licensing, permitting and other legal requirements including, without limitation, all
environmental laws, orders, rules, regulations, standards, licensing and permitting (the
"Legal Requirements"). Grantee agrees to construct the Pipeline System, in compliance
with all Legal Requirements, and with due care for Grantor's agricultural activities on the
Land and Grantor's adjacent property.
3. If Grantee should abandon the Pipeline System, then this Easement and
the rights herein granted shall automatically terminate and revert to, and become property
of, Grantor, its successors and assigns. Abandonment shall be irrebuttably presumed
upon the adoption of a formal resolution of Grantee's governing body that authorizes the
abandonment of the Pipeline System.
4. The "Easement Term" is hereby defined as the period of time beginning
with the granting of the Easement and continuing until such time that the Easement is
abandoned by Grantee.
5. Grantee shall at all times during the Easement Term, at Grantee's sole cost
and expense, keep and maintain the Pipeline System in good order, condition, and repair
(ordinary wear and tear excepted), and in such condition as may be required by
applicable Legal Requirements. Grantee shall keep the Easement in good order,
condition and repair following any work related to Permitted Uses on the Pipeline
System.
6. Grantee shall be responsible for obtaining all permits necessary to
construct and operate the Pipeline System on the Easement. Without limiting the
foregoing, and to the extent required, Grantee will secure and maintain any and all
environmental permits required by the Texas Commission on Environmental Quality
covering the Easement. Grantee will provide Grantor with a copy of Grantee's
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. Fences and gates installed by Grantee shall meet the specifications described
in, and be installed as specified in, Exhibit "C" attached hereto and made a part hereof.
8. The Pipeline System shall be so located or shall be buried at a depth of at
least sixty (60) inches below the surface of the ground. All ditches dug for such purposes
shall be double cut with subsurface soil first returned into the ditch over the pipeline and
then top soil replaced above the base soil. Any rocks brought to the surface shall be
placed back in the ditch below forty (40) inches from the surface of the ground or
removed from the Land. Any Bottom Soil remaining after filling the trench in which the
E.R. Bednarz Trust -- Pipeline Easement Agreement 2
pipeline is located shall (i) on cultivated lands, be removed from the Easement Area and
disposed of on the property of Grantor in a place of Grantor's choosing, 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.
9. Grantee shall compact the soils in the pipeline ditch sufficiently to prevent
sinking and settling, restore the contour of the Land to its original condition as nearly as
possible. In furtherance of the foregoing, Grantee shall inspect the Pipeline at an interval
of (i) six months, and (ii) twelve 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.
10. This grant of Easement shall not preclude the right of Grantor to fully use
and enjoy the Land, except as may be necessary for Grantee's purposes herein provided,
however, (A) no buildings, structures or reservoirs may be constructed upon the
Easement, (B) improvements (other than drip irrigation lines and overhead irrigation
equipment) may not parallel the Pipeline within the Easement Land, (C) all power lines,
metallic pipelines, and telecommunication lines hereafter installed by Grantor must cross
the Easement at no less than a 45' (forty-five degree) angle, (D) all underground power
lines and any metallic pipelines (excluding irrigation water lines and water distribution
lines used to service Grantor's property) hereafter installed by Grantor must have a
minimum separation of two feet (2') from the water pipeline and shall be installed and
constructed in accordance with generally accepted engineering practices, and (E) fences
constructed by Grantor that cross the Easement must have gates installed so that Grantee
may have access to and along the Easement at all times.
11. In case of abandonment of said Easement, as provided in Paragraph No. 3
above, the title and interest herein granted shall end, cease, and terminate, and title to the
Easement shall revert to the then owner of the Land.
12. The grant of Easement herein contained is subject to all valid and
subsisting easements, leases including oil, gas and mineral leases and wind energy leases,
and rights -of -way of record affecting the Land.
13. 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 reasonably cooperate and aid Grantee, if necessary, to obtain
any curative documents needed.
14. 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
E.R. Bednarz Trust -- Pipeline Easement Agreement 3
ultimate award to the Grantor for the Easement granted to Grantee and described herein,
shall be the same as the consideration hereinafter stated in Paragraph No. 14.
15. As consideration for the grant of this Easement, Grantee agrees to pay
Grantor a sum equal to Eighty-five Dollars ($85.00) per rod multiplied by the number of
rods, and/or fractions thereof, for the length of the Easement crossing the Land. It is
agreed that should Grantor own an interest in the Easement Land that is less than the
entire fee simple estate, then the consideration to be paid shall be reduced
proportionately.
16. Upon completion of construction, Grantee shall (i) remove all rock,
gravel, caliche, or other materials foreign to the natural condition of the Land; (ii) level
and fill with top soil all holes, ruts, or other surface disturbances in such a manner as to
restore same to the natural contour of the surrounding property; (iii) clean the area to the
end that all objects, materials, and structures foreign to the natural condition of the Land
are removed and eliminated; (iv) in the event any of surface disturbance on grassland,
Grantew shall plant a seed mix of grass and forbes in the area of such disturbance and re-
establish grass cover; and (v) otherwise restore the surface of the Land to its original
condition as nearly as reasonably possible.
17. After completion of construction, and except in cases of emergency,
maintenance or repair, on cultivated land, vehicular ingress, egress and regress shall be
permitted in, but limited to, the use of then -existing roadways and turn rows Grantor has
on his property.
18. Grantee, at its sole cost and expense, shall repair or replace in good and
workmanlike manner any underground lines or other improvements of any kind that it
may damage during construction, maintenance, or removal of its pipelines.
19. Grantee agrees that, except as may be reflected in Exhibit "D" attached
hereto, no above ground equipment and/or facilities related to the Pipeline System shall
be installed, constructed, or otherwise located on cultivated ground located within the
Easement. Grantee further agrees any future installation, construction, and location of
such equipment and/or facilities shall be limited to the boundary lines of the Land or
along turn -rows existing as of the date hereof.
20. Grantee shall not permit any of its employees, contractors, subcontractors,
agents, or other third parties acting on behalf of Grantee who may enter upon the Land
under the authority of this grant to (i) bring upon the Land any alcoholic beverage or
illegal drugs, or (ii) to hunt on any portion of the Land or to take or carry any firearms
thereon for any purpose whatsoever. Grantor, or Grantor's representatives, shall have the
right to deny access or to expel from the Land anyone carrying any such prohibited
substances or any form of firearm.
E.R. Bednarz Trust -- Pipeline Easement Agreement 4
21. "Grantee" when used in this instrument, shall include The City of
Lubbock's officers, agents, servants, employees, representatives, contractors,
independent contractors, subcontractors, invitees, and/or their equipment or vehicles.
22. 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.
23. 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.
24. TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTEE
HEREBY RELEASES AND AGREES TO HOLD HARMLESS AND DEFEND
GRANTOR FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
CAUSES OF ACTION, SUITS, LOSSES, DAMAGES (INCLUDING PUNITIVE
DAMAGES), COSTS, FINES, PENALTIES, AND EXPENSES OF ANY NATURE
WHATSOEVER (INCLUDING WITHOUT LIMITATION REASONABLE
ATTORNEY'S FEES, COSTS, AND EXPENSES INCURRED IN
INVESTIGATING AND DEFENDING AGAINST THE ASSERTION OF
LIABILITY, AS SUCH FEES, COSTS, AND EXPENSES ARE INCURRED)
WHICH MAY BE SUSTAINED, SUFFERED, OR INCURRED BY GRANTOR,
ARISING FROM GRANTEE'S ACTIVITIES OR OPERATIONS UPON THE
HEREIN DESCRIBED LAND, TO THE EXTENT CAUSED BY GRANTEE.
SUCH OBLIGATION TO HOLD HARMLESS AND DEFEND SHALL,
WITHOUT LIMITATION, COVER BODILY INJURY, DEATH, DAMAGE TO
PROPERTY OR NATURAL RESOURCES, AND COMPLIANCE WITH ANY
GOVERNMENTAL RULE, REGULATION, ORDER, DIRECTIVE, OR
DEMAND REGARDING THE TESTING FOR, MONITORING, CLEAN UP,
REMEDIATION, OR REMOVAL OF ANY CONTAMINANTS, POLLUTANTS,
HAZARDOUS MATERIALS, OR OTHER TOXIC SUBSTANCES. NOTHING IN
THIS PARAGRAPH OR IN THE EASEMENT AGREEMENT SHALL BE
CONSTRUED AS A WAIVER OF ANY DEFENSES WHATSOEVER THAT
GRANTEE (THE CITY OF LUBBOCK) MAY HAVE UNDER ANY LAW,
INCLUDING BUT NOT LIMITED TO ANY DEFENSES OR LIMITATIONS
CONTAINED IN THE TEXAS TORT CLAIMS ACT OR ITS SUCCESSOR
PROVISIONS. GRANTEE RESERVES ALL DEFENSES AND LIMITATIONS
TO WHICH IT IS ENTITLED UNDER ANY AND ALL APPLICABLE LAWS.
25. It is understood and agreed that this Easement is not a conveyance of the
fee estate for any of the Land covered hereunder, but is only an easement through, over,
under, upon, and across the herein described Land.
26. The provisions of this Easement shall be binding upon and inure to the
benefit of the successors and assigns of the respective parties hereto.
E.R. Bednan Trust — Pipeline Easement Agreement 5
27. 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.
28. In case any one or more of the provisions contained in this Easement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions hereof, and
this Easement shall be construed as if such invalid, illegal or unenforceable provisions
had never been contained herein.
29. 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.
30. Grantor will not construct any facilities or perform any activities within
the Easement that may violate federal and state regulations regarding the protection of
drinking water supplies and facilities that convey such water. However, this restriction
shall not preclude Grantor, or its successors and assigns, from applying on and/or around
the Easement Land such fertilizers, herbicides, pesticides, or other chemicals approved by
the United States Environmental Protection Agency. Grantor and Grantee hereby give
notice to any subsequent mineral, water, wind or energy lessee or grantee of any interest
overlying or underlying the Easement, that Grantee will be operating the Pipeline System
within the Easement boundary in accordance with the Permitted Uses as defined herein.
To the extent that Grantor owns any mineral and/or royalty interest in and under the
Easement, Grantor waives and surrenders its rights to use the surface of the Easement for
the exploration and development of the mineral estate and/or the construction of surface
facilities related to the development of wind energy generation or production.
31. 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 ]
E.R. Bednarz Trust -- Pipeline Easement Agreement 6
EXECUTED this Cam' day of 1 . _ 1 2010 ("Effective Date").
GRANTOR:
AK — T R E.R. BEDNUST
By: ,c—
Eugene Uldnarz, S61e Trustee of/thfVlk. Bednarz Trust
created under the Will of W.L. narz, Sr., Deceased
(Cause No. 2002-768,567, County Court, Lubbock
County, Texas), and under the Will of Irma Marie
Bednarz, Deceased (Cause No. 2003-769,311, County
Court, Lubbock County, Texas)
GRANTEE:
The City of Lubbock
By:�i'�
Name:
Title:
[Acknowledgements of the Parties on Next Page]
APPROVED AS TO CONTENT:
M a4-'d-L 4- J_ -
Marsha Reed, P.E.,
Chief Operations Officer
APPROVED AS TO)FORM:
T
Eugene Bednarz -- Pipeline Easement Agreement
STATE OF TEXAS
COUNTY OF LUBBOCK § r
This instrument was acknowledged before me on ( , 2010, by Eugene
Bednarz, Sole Trustee of the E.R. Bednarz Trust created under the Will of W.L. Bednarz, Sr.,
Deceased (Cause No. 2002-768,567, County Court, Lubbock County, Texas), and under the Will
of Irma Marie Bednarz, Deceased (Cause No. 2003-769,311, County Court, Lubbock County,
Texas).
;t
t
STATE OF TEXAS
COUNTY OF LUBBOCK
Notary Public, State of texas
Printed Name of Notary
My commission expires:
I
This instrument was acknowledged before me on 0C tbe( 14 , 2010, by TOM
MARTIN on behalf of the City of Lubbock, a Texas Home Rule Corporation on behalf of said
Texas Home Rule Corporation.
` V' ELISA SANCHEZ
v Notary Public, State of Texas
My Commission Expires 11.07.2011
bw-�Swj��
NWuy Public, State of e Q S
Ic 56L Sanch e z
Printed Name of Notary
My commission expires:
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
Eugene Bednarz -- Pipeline Easement Agreement
Resolution No. 2010-RO353
EXHIBIT "A"
Description of Grantor Property
West 1/2 of Section 30, Block 24, Lubbock, Lubbock County, Texas
EXHIBIT "B"
Metes and Bounds Description of the Permanent
and Temporary Easement and Survey Plat
ai]
Resolution No. 2010—R0353
EXHIBIT '(3'
Page 1 of 3
59 56 Danny Men
Vol.5094 Pg.181
608.3' N 0'59'12• E 3937'
FD.V " ROD N 89° 00'3$" W 2657.1'
z .
0
.•,.•• ......... ., \ ��;...............FD. R.R. SPK�
1.342.18' \
60' Permanent
- Easement 3
cD
N : i 6a Temporary
Cont. Esmt, 2
' 3 232 Ac.
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3 � • o: � iv
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Lr) t)o 0
The E.R.Bednorz Trust
Vol.8721 Pg. 74
l Rods - Permanent smt.
i (2.46 Ac. - Permanent EsMQ
W. 1 /2 56Gt ION 30) E)L OGK 24
I.0000GK GOUNTY, T6XA5
90 06 1 NG fKAGT 2,
K I 'f f 6 N OUOP I V 1 610N
35 &R6GOR0E0 IN V. 519, P. 62 OBEO RBGOR05•
FD. 8" PII
ON CORN
S 880 27'31" E 2652.8'
a - Set 1/2" Rod With Cap
A legal description of even survey dote herewith
accompanies this survey plot. -
ed an thC.�4'iv}'q rch-May,t;', p
Register(d professional Land SIVW)W d�'p� ooeesoee-j%& 4
`�� (3qi ls� 5 n
Date , ..e"sea
seOCDOCCGeOewD%" ! 6
All Northings and Eostings shown \®�• 6AKgA7�®Oq�:'tl`oles
nates,
and moy be converted to Texas ,ice
North Central Zone, NAD83 by dividi�i : .. SCAL
adjustment factor of 1,0002396 CLIEP
All distances shown are surface distances. DRAY
Bearings shown ore grid bearings based on the Texas SUR%
State Plane Coordinate System, North Centrol Zone, FILE:
NAD83 Datum.
This survey and allinfortnotion hereon is for the exclusive use of
CITY OF LUBBOCK
J. & L. Kltten
Famlly Trust
Vol, 7562 Pg.126
-- P.O.B.
Y 2'9917.67
X•986487.99
1' - 600' I RE VISION: I PL A
PARKHILL. SMITH & COOPER - CIT
BURROW SURVEY DATE: 3-5
J.M. MARTIN I CHECKED BY: G. WILS
MNL. +V +-JE% LNG k VS SRYE'tNK Sr
-11-
EXHIBIT `C.
Page 2 of 3
PARCEL NO. 70
THE E.R. BEDNARZ TRUST
Field Notes describing the centerline of a Sixty -Foot (601 wide permanent pipeline easement being
located in the West 1/2 of Section 30, Block 24, Lubbock County, Texas and being out of Tract 2, Kitte
Subdivision recorded in Volume 519, Page 62, Deed Records Lubbock County, Texas, said pipeline
centerline being described as follows:
Beginning at a 1/2" iron rod with cap, set in the East line of a tract of land located in Section 30, Bloc
24, Lubbock County, Texas as recorded in Volume 8721, Page 74, Lubbock County, Texas, for the
beginning of this description, from whence the Northwest comer of said Section 30, Block 24, bears
North 1036'40" East, a distance of 1222.85 feet and North 89°00138" West, a distance of 2657.1 feet,
said point of beginning having a project coordinate of Y = 7219927.67 and X = 986487.99;
Thence North 59056'52" West, along the centerline of said Sixty -Foot (601 wide permanent pipeline
easement, a distance of 372.63 feet to the beginning of a curve to the right;
Thence along the arc of a curve to the right and being along the centerline of said Sixty -Foot (60�
wide permanent pipeline easement, an arc distance of 215.44 feet to a point for the end of this curve,
said curve has a radius of 575.00 feet and delta angle of 21°28'04";
Thence North 3802848" West, along the centerline of said Sixty -Foot (601) wide permanent pipeline
easement, a distance of 685.04 feet to the beginning of a curve to the left;
Thence along the arc of a curve to the left and being along the centerline of said Sixty -Foot (601
wide permanent pipeline easement, an arc distance of 125.29 feet to a point for the end of this curve,
said curve has a radius of 575.00 feet and delta angle of 12029'03";
Thence North 50057'51" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 363.72 feet to a point in the centerline of said Sixty -Foot (601 wide
permanent pipeline;
Thence North 0059'12" East, along the centeriine of said Sixty -Foot (601 wide permanent pipeline
easement, a distance of 25.00 feet to a 'h" iron rod with cap, set in the South Right of Way line of
F, M. 41, for the end of this description, whence the Northwest comer of Section 30, Block 24, bears
North 0059'12" East, a distance of 39.37 feet and North 89000138" West, a distance of 1342.18 feet.
Containing 108.31 rods. (2.46 acres)
V
Exhibit' C '
Page 3 of 3
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 2.32 acres of land. The said temporary construction easement shall expire as notes
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,
Central Zone, Nad83 Datum.
4. All distance shown are surface distances.
5. Surface adjustment factor for entire project is 1.0002396
Texas North
.Q
Resolution No. 2010-RO353
Exhibit "C"
Gate Construction Detail and Specifications
lap
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Exhibit I'D"
Drawing of Above Ground Improvements
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