Loading...
HomeMy WebLinkAboutResolution - 2010-R0501 - Property Easement - Mildred Denzer - 10_14_2010Resolution No. 2010-RO501 October 14, 2010 Item No. 5.14 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, an Easement in connection with certain properties located in Lynn County, Texas, owned by Mildred M. Denzer, and all related documents. Said 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 October 14, 2010 TOM MARTIN, MAYOR ATTEST: becca Garza, City APPROVED AS TO CONTENT: m i ad arsha Reed, P.E., Chief Operation Officer Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: IRes-Easement-Mildred M. Denzer I0.5.I0 Contract: 9797 Resolution No. 2010-R0501 EASEMENT STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF LYNN MILDRED M. DENZER, as her sole and separate property, whose address is c/o Johnny Dale Denzer, 8218 E. Highway 84, Slaton, 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 131h 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 Lynn 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, over, and 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 shall 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. Mildred M. Denzer -- Pipeline Easement Agreement DocID 151445 v.l 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. Grantee shall compact the soils in the pipeline ditch sufficiently Mildred M. Denzer -- Pipeline Easement Agreement 2 DoclD 151445 v.l to prevent sinking and settling, restore the contour of the Land to its original condition as nearly as possible. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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 granted to Grantee and described herein, shall be the same as the consideration hereinafter stated in Paragraph No. 14. 14. 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. 15. Upon completion of construction, Grantee shall (i) remove all rock, gravel, caliche, or other materials foreign to the natural condition of the Land that may be brought to the surface or placed on the Land by Grantee; (ii) level and fill with top soil all Mildred M. Denzer -- Pipeline Easement Agreement 3 DocID 151445 v.l 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, Grantee 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 any portion of the Land that may be disturbed by Grantee's activities to its original condition as nearly as reasonably possible. 16. 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. 17. 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. 18. 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. 19. 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, shaII have the right to deny access or to expel from the Premises anyone carrying any such prohibited substances or any form of firearm. 20. "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. 21. 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. 22. 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. 23. TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTEE HEREBY RELEASES AND AGREES TO HOLD HARMLESS AND DEFEND Mildred M. Denzer -- Pipeline Easement Agreement 4 DocID 151445 v.l 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. 24. 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. 25. The provisions of this Easement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. 26. 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. 27. 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. 28. 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 Mildred M. Denzer -- Pipeline Easement Agreement 5 DocID 151445 M five (5) days after the date of mailing or the date of actual delivery as shown by the addressee's certification or registry receipt. 29. 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. 30. 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 301h day of September, 2010 ("Effective Date") [ Signatures of the Parties on Next Page ] Mildred M. Denzer -- Pipeline Easement Agreement b Doc1D 151445 v.l GRANTOR: MILDRED M. DENZER GRANTEE: THE CITY OF LUBBOCK r`' By:_ /4arc., TOM MARTIN, Mayor ATTEST: Rebecca Garza, City Secret APPROVED AS TO CONTENT: mz�-- iujj Marsha Reed Chief Operations Officer APPROVED AS TO FORM: T rry Grant am Attorney Mildred M. Denzer -- Pipeline Easement Agreement DoclD 151445 v.l {Acknowledgements} STATE OF TEXAS COUNTY OF LUBBOCK § A This instrument was acknowledged before me on the., day of September, 2010, by MILDRED M. DENZER. Notary's Seal, Printed Name, and Expiration of Commission: Wem�;�:mt+ CI IARI.CTTE CUMMINGS Notary Pubfio, State of Texas Commission Expires 04-19-2013 mr.*� STATE OF TEXAS COUNTY OF LUBBOCK § This instrument was acknowledged before me on the 2010, by TOM MARTIN, Mayor of THE CITY OF LUBBOCK. Notary's Seal, Printed Name, and Expiration of Commission: =ELISA�SANCHEZNsMy 011 Mildred M. Denzer -- Pipeline Easement Agreement DOclD 151445 v.l II 1� day of "— -- Notary Public, State of Texa W 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 Mildred M. Denzer -- Pipeline Easement Agreement DoclD 151445 v.l Resolution No. 2010-RO501 Exhibit "A" Description of Grantor Property 236.41 acres of land out of Section 4, Block O, D&W RR. Co. Survey, Lynn County, Texas, being that portion of Section 4 lying north and west of FM 400 Mildred M. Denzer -- Pipeline Easement Agreement 10 DoclD 151445 v.l Resolution No. 2010—RO501 Exhibit `B" Metes and Bounds Description of Easement and Survey Plat PARCEL NO. 96 ALPHOSE A. DENIER (DEC.) AND MILDRED P. DENIER Field Notes describing the cehterilne of a Sixty -Foot (601 wide permanent pipeline easement being located In Section 4, Block O, D. & W. R.R. Co. Survey, Lynn County, Texas and said pipeline centerline being described as follows: Beginning at a 'h' Iron rod with cap, set in the West Right of Way line of F.M. 400 in said Section 4, Block O, for the beginning of this description, from whence a i' pipe found for the Northeast comer of said Section 4, Block 0, bears North 37052'18' East, a distance of 1673.94 feet and South W36391 East, a distance of 1401.61, feet, said point of beginning having a project coordinate of Y 7203158.65 and X = 1003994.71; 'thence North 55°08'11' West, along the centerline of said Sixty -Foot (601 wide permanent pipeline easement, a distance of 2440.18 feet to a Y4' Iron rod with cap, set In the North line of said Section 4, Block 0, for the end of this description, whence a 1h' rod found for the Northwest Comer of said Section 4, Block O, bears North 8803639' West, 884.21 feet. Containing 147.89 rods. (3.36 acres) The above described sixty foot (601 wide permanent pipeline easement Is also subject to a sbkty 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 3.24 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 HIGH-TECHLANDAND GPWNVEY04ING 3330 70th St_, Suite 202 t Lubbock, Tho 79413 (806) 789-0020 • Fax (806) 7924646 Mildred M. Denzer -- Pipeline Easement Agreement 1 1 DoclD 151445 v.l r8120' 342r I N 88° 36'39" W 391 .9' O/5 E/5i y C . �` 60 Terwaly ArplAtSS A1%% rtt J Al1hlrEd P.DpA1pr Vd.44 P9.M l4TRLkds • PWmanwt Esa rJ.36 ArA-PerfiVn AE&WJ 5 wji;-mr E 3 1 6 5 6 14910, G Jawy 0u/e Denzer Vd.370 Pp,219 -- W 236. 4 1 AG. ro.y; Roo rY Z ION 4) OI.OGK .0�s 4 W.K R°60.6UKV6Y I.YNN G0UNtY>T6XA6 4 � ROD N 88° 29'09" W 5291. 2 •- Set r/Z" Rod With Cap A legal description of even survey date herewith accompanies this survey plat. Surve ed on the grourc y.2009 p Regis Bred qrrpffessionol Land Surveyor Date A11Northin s and Eostings shown are project coordinates and may be converted to Texas State Plane Coordinates, North Ceniral Zone, NAD83 byy dividing by o surface SC adjustment factor of 1.0002396 SC CLI M dlstonces shown ore surface distances. DR Bearings shown are grid bearings based on the Texas I State Plone Coordinate System, North CentralZone, FIL NAD83 Datum. This survey and ohinformotion hereon is for the exchnive use of CITY OF LUBBOCK and shah not be copied or used except for the pwpoee tar wfich it is expressly furnished, this droving and al copies (portfdor compkle) stasbe returned to the owner upon denond. R o 1� 5 ro. r' PrPr in rz 3 5 2 d 5 OIL�71}T'IL��� t V��l i11r�R1M��ire{�. •°`" 7011 fr.11/rE t0! • U�OOL 11c 71is0 Mildred M. Denzer -- Pipeline Easement Agreement 12 DocID 151445 v.l Resolution No. 2010-RO501 Exhibit "C" Gate Construction Detail and Specifications b SU Mildred M. Denzer -- Pipeline Easement Agreement JL.1 DOCID 151445 0 Resolution No. 2010-RO501 Exhibit "D" Drawing of Above Ground Improvements Mildred M. Denzer -- Pipeline Easement Agreement 14 DoclD 151445 v.l Mildred M. Denzer -- Pipeline Easement Agreement 15 DocID 151445 VA ), 5l Return:. West Texas Title Company, 8001 Quaker Avenue, Suite E, Lubbock, Contract: 9797 20-11 -0021 Resolution No. 2010-RO501 EASEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF LYNN § MILDRED M. DENZER, as her sole and separate property, whose address is c/o Johnny Dale Denzer, 8218 E. Highway 84, Slaton, 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 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 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 Lynn 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, over, and 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 shall terminate upon w 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. Mildred M. Denzer -- Pipeline Easement Agreement DoclD 151445 v.l 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 shaII 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. Grantee shall compact the soils in the pipeline ditch sufficiently Mildred M. Denzer -- Pipeline Easement Agreement 2 Doc1D 151445 v.1 to prevent sinking and settling, restore the contour of the Land to its original condition as nearly as possible. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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 granted to Grantee and described herein, shall be the same as the consideration hereinafter stated in Paragraph No. 14. 14. As consideration for the grant of this Easement, Grantee agrees to pay Grantor a sum equal to Eighty-five Dollars ($$5.00) 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. 15. Upon completion of construction, Grantee shall (i) remove all rock, gravel, caliche, or other materials foreign to the natural condition of the Land that may be brought to the surface or placed on the Land by Grantee; (ii) level and fill with top soil all Mildred M. Denzer -- Pipeline Easement Agreement DociD 151445 v.l 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, Grantee 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 any portion of the Land that may be disturbed by Grantee's activities to its original condition as nearly as reasonably possible. 16. 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. 17. 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. 18. 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. 19. 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 O 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 Premises anyone carrying any such prohibited ►� substances or any form of firearm. yr 20. "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. 21. 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. 22. 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. 23. TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTEE HEREBY RELEASES AND AGREES TO HOLD HARMLESS AND DEFEND Mildred M. Denzer -- Pipeline Easement Agreement 4 DoclD 151445 v.l 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. 24. 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. Q 25. The provisions of this Easement shall be binding upon and inure to the - benefit of the successors and assigns of the respective parties hereto. : r� 26. This Easement contains the final and complete expression of the parties c`} 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. 27. 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. 28. 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 Mildred M. Denzer -- Pipeline Easement Agreement 5 DoclD 151445 v.l five (5) days after the date of mailing or the date of actual delivery as shown by the addressee's certification or registry receipt. 29. 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. 30. 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 30th day of September, 2010 ("Effective Date") [ Signatures of the Parties on Next Page ] Mildred M. Denzer -- Pipeline Easement Agreement 6 DocID 151445 v.l C I— GRANTOR: MILDRED M. DENZER GRANTEE: THE CITY OF LUBBOCK By: TOM MARTIN, Mayor ATTEST: Rebecca Garza, 4-City Secre ar APPROVED AS TO CONVENT: J" 12' - )11,4 Marsha Reed Chief Operations Officer APPROVED AS TO FORM: Terry Vntham Attorn Mildred M. Denzer -- Pipeline Easement Agreement DocID 151445 v.1 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 Mildred M. Denzer -- Pipeline Easement Agreement 8 DoclD 151445 v.l {Acknowledgements} STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on the,__ 'ay of September, 2010, by MILDRED M. DENZER. Notary's Seal, Printed Name, and Expiration of Commission: CUMMINGS * 4dolary Put;�io. State o1 Texas tidy Gommi;;sion !"KDIies 041-. 2013 .. ,.tea �.y4' �y..p'•�. STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on the 2010, by TOM MARTIN, Mayor of THE CITY OF LUBBOCK, on behalf of said Texas Home Rule Corporation. Notary's Seal, Printed Name, and Expiration of Commission: SLISA SANCHEZ Notary Public, State of Texas My Commission Expires 11 W2011 Mildred M. Denzer -- Pipeline Easement Agreement DocID 151445 v.1 A day of �'✓� a Texas Home Rule Corporation, Notary Public, State of Texas E tT1 u. Exhibit "A" Description of Grantor Property 236.41 acres of land out of Section 4, Block O, D&W RR. Co. Survey, Lynn County, Texas, being that portion of Section 4 lying north and west of FM 400 Mildred M. Denzer -- Pipeline Easement Agreement 10 DocID 151445 v.1 Exhibit "B" Metes and Bounds Description of Easement and Survey Plat PARCEL NO.50 AL.PHOSE A. DENZER (DEC.) AND MILDRED P. DENZER Field Notes describing the centerline of a Sixty -Foot (601 wide permanent pipeline easement being located in Section 4, Block O, D. Ik W. R.R. Co. Survey, Lynn County, Texas and said pipeline centerline being described as follows: Beginning at a 'h' Iron rod with cap, set in the West Right of Way fine of F.M. 400 in said Section 4, Block O, for the beginning of this description, from whence a 1' pipe found for the Northeast comer of said Section 4, Biotic O, bears North 37,52'18' Fast, a distance of 1673.94 feet and South 8803639" East, a distance of 1401.61 feet, said point of beginning having a project Coordinate of Y 7203158.65 and X a 1003994.71; thence North 55008'11" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 2440.18 feet to a 15' Iron rod with cap, set in the North line of Said Section 4, Block O, for the end of this description, whence a 1h" rod lbund for the Northwest comer of said Section 4, Block O, bears North 8803639' West, 884.21 feet. Containing 147.89 rods. (3.36 acres) The above described sixty foot (601 wide permanent pipeline easement is also subject to a sixty foot (60� wide temporary construction easement being parallel and adjacent to said permanent pipeline o easement, located and shown on the accompanying survey plat and said temporary construction — easement contains 3.24 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. �e Q 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 h� Central Zone; Nad83 gym. �- 4. All distance shown are surface distances. 5. Surface adjustment factor for entire project Is 1.0002396 0 HIGH-TECHLODAND GPSi JRVEYOU ING 3330 70th St., Suite 202.4 Lubbock, Texas 79413. (806) 788-W20 • Fax (806) 792-IW Mildred M. Denzer -- Pipeline Easement Agreement 1 DocID 151445 v.l 2 3 6421' 1 5 88'36'39' E 3 N 88" 36'39" W ROD FD. 1-1/2" MAC ��:. a 20'0/5 EAST \\\ � tiQ'PerrtnnenP rD.V:" ROD y OnrrbrV 601 Temoarary ' \. J24 Ac. ��• C6 \ e c N P.O. \ �� 56.. H103s94,7t :: h A/p/M ADsu►rer (DW . •� at ad 44 Vol P.Dt Johry Da/e Daver f VP53 Eapd "i Vol.370 P17.Z19 1p l3.36 AR- anal! yh-�•. N rp" 0�t3O rtr FD.Vi ROD rD,'/f" R _ FO.V:- ROD R• V 00 M h hie -b• 0 40 5EG'f ION 4 � 0LOGK .0� •'0• 4 W. K. K. G0.5UKVEY ss6� I.YNN GOUNfy) f6XA5 �FD.V=" ROD N 813°29'09" W- 6291,1' •`2 •• Set V2" Rod With Cap A legal description of even survey dale herewith accompanies this survey plat. Surveyed on the groan I y•2009 Al Regis Bred r fesslonalLand Surveyor Date AIINorthings and Eastings shown are project coordinates and may be converted to Texas State Plane Coordinotes, North Central Zone, NAD83 byy dividing by a surface SCA adjustment factor of 1.0002396 CC IE All distonces shown ore surface distances. DRA Bearings shown are grid bearings based on the Texas State Plane Coordlnaie System, North CentrolZone, FILE NAD83 Datum. This survey and oWnformotion hereon Is for the exclwne use of CITY OF LUBBOCK and sWnot be copied or used except for the purpose la .hich it is expressly tarnished, this draring and oli copies (portiol or complete) shosbe returned to the owner upon demand. 10 107 21 5 6 r0. r, PIPE ML 1 UH INS % CPS W*MX Nlp 740•flm r ra Ili M-bxe Mildred M. Denzer -- Pipeline Easement Agreement 12 DocID 151445 v.I Exhibit "C" Gate Construction Detail and Specifications Mildred M. Denzer -- Pipeline Easement Agreement 13 DOCID 151445 v-1 Exhibit "D" Drawing of Above Ground Improvements `09 Mildred M. Denzer -- Pipeline Easement Agreement 14 DocID 151445 v.1 Mildred M. Denzer -- Pipeline Easement Agreement 15 DoclD 151445 v.l da of J uLt.i'l� 2011 atg is o'clock 4- M. Filed for record this Y CIT TO A AT 'rTpTnrT COT TNTY CT ,FRK. LYNN COUN Y, TEXAS 13Y: CM `q