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HomeMy WebLinkAboutResolution - 2010-R0609 - Contract 9948 Co-Trustees Of Kitten Family Living Trust - 12_15_2010Resolution No. 2010-RO609 December 15, 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 granted by Clyde T. Kitten, Edward A. Kitten and Charlene K. Scott, Co -Trustees of the Kitten Family Living Trust, in connection with certain real property located in Lynn County, Texas, 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 _ December 15, 2010 =AW'Z' TOM MARTIN, MAYOR ATTEST: Rebe ca Garza, City Secreta APPROVED AS TO CONTENT: / )� - V/ A Marsha Reed, P.E., C >ef Oper tion Officer 47'0eav� Dave Booher, Right -of -Way Agent APPROVED AS T"FORM: ttorney Res-kasement Kitten Trust 12.7 10 tcpcttrn: pesc texas iitle company, 6UUI Quaker Avenue, Suite h, Lubbock, 'texas /9414 ,I 1 2011 - 0 2 0 - Contract: 9948 "• Resolution No. 2010-RO609 EASEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF LYNN § Clyde T. Kitten, Edward A. Kitten and Charlene K. Scott, Co -Trustees of the Kitten Family Living Trust with a mailing address of P.O. Box 640, Post, TX 79356 (hereinafter referred to as the "Grantor" whether one or more) for a valuable consideration, to it paid by The City of Lubbock, Texas (the "Grantee") with offices at 1625 13`h Street, Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged, has granted and does by these presents grant unto Grantee the following described perpetual exclusive easement, servitude and right-of-way, as described herein (hereinafter called the "Easement") through, over, under, upon, across and within the following described lands, described in Exhibit A (hereinafter called the "Lands") situated in Lynn County, Texas: Piyeline:i and F---' O J Grp �W e a perpetual exclusive Easement to survey, construct, reconstruct nspect, maintain, alter, relocate, replace, repair, and J remove (he. �I � es) pipelines, conduits, drain (blow -off) valves, valve boxes, mete les, manhole covers, corrosion monitoring test stations, pipeline mat ,urrent deep well anode stations with power supplies, flow meters, ->' Z -..wi lines and splice boxes, pipeline trail road on non cultivated areas, and eq _r,..icnt 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 v .00 Kitten Family Living Trust --Pipeline Easement Agreement for the purpose of water transportation. Grantee shall use the Easement for the Permitted Uses and Pipeline System and for no other purposes or uses. 2. Grantee covenants and agrees that its use of the Easement and its operations conducted thereon shall, to the best of Grantee's ability, at all times comply with all applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and Grantor's rules and regulations as shown on Exhibit C attached hereto, particularly, but not limited to, those regarding safety, cleanup and distribution and removal of soil, rock and/or trees. Grantee agrees to construct the Pipeline System, in compliance with all Legal Requirements, and with due care for Grantor's property, business and operations. Fences and gates installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made a part hereof. Grantor and Grantee shall each conduct its activities in such a manner as to not unduly interfere with or cause a disruption to the other's business, operations and property or those of other third parties entering or crossing the Easement. In the event it is discovered that Grantee is in violation of any portion of the Legal Requirements, Grantee agrees to commence, upon receipt of written notice of such violation, the process of curing such violation so that Grantee will be in compliance with this subparagraph. Upon completion of any construction project that is part of the Pipeline System and upon completion of any record survey, Grantee shall provide a copy to Grantor of the record survey showing the location of the Easement and Pipeline System and all other installed assets on the Grantor's lands. 3. If Grantee should abandon the Pipeline System, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns. Grantee may abandon the Pipeline System solely by a formal resolution of its governing body that authorizes the abandonment of the Pipeline System and that further resolves that Lake Alan Henry is no longer necessary as part of Grantees water supply. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Lands are located. 4. The Easement Term is hereby defined as the period of time beginning with the granting of the Easement and continuing until such time that the Easement is abandoned by Grantee. 5. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement in good order, condition and repair following any work related to Permitted Uses on the Pipeline System. r� CA:) Kitten Family Living Trust —Pipeline Easement Agreement 2 6. Grantee shall be responsible for obtaining all permits necessary to construct and operate the Pipeline System on the Easement. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality covering the Easement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 7. Within the Easement, Grantee shall have the right to cut fences and install gates to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, it shall be properly supported on either side of the contemplated opening by suitable posts and braces. 8. The Pipeline System shall be so located or shall be buried at a sufficient depth so it does not interfere with current cultivation of the soil at the soil levels as they exist at time of execution of this Easement. Following completion of construction, the surface area shall be returned to its preconstruction condition as nearly as practicable. If any of the property shall be grassland, Grantee shall apply grass seed with a native mix from seed that is available and that is the same as existing native grass or comparable to the native grass in the disturbed area. 9. This grant of Easement shall not preclude the right of Grantor to cultivate, use, and enjoy the Lands for any purposes which will not constitute an interference with the Easement, rights and privileges herein granted to Grantee, or endanger any of Grantee's property. However, the right reserved by Grantor as to the perpetual Easement shall not include the right to erect any buildings, reservoirs, structures, or other improvements on the perpetual Easement without the advance written permission of Grantee. Grantee shall have reasonable access over and across the Lands at all times during initial construction. 10. Grantor, his successors, assigns, or agricultural lessees or tenants, if any, are to be compensated, as set out herein under Paragraph 16, for all damages to the lands and personal property located thereon, including but not limited to fences, crops, livestock, drainage and/or irrigation systems, as a result or related to the Grantee's use or occupation of the lands pursuant to the rights granted by this Easement, including but not limited to construction, future operation and maintenance of the Pipeline System. Payment of these damages and for the value of this Easement by Grantee, subject to the terms of this Paragraph 10, will be in an amount agreed to by Grantor and Grantee and shall be a one-time payment as set forth in Paragraph 16, for any and all of such damages, whether occurring or accruing at or after the time of construction of the pipeline system. 11. Grantee shall exercise due care and diligence in the use of the rights and privileges herein granted to it. In case of abandonment of said Easement as provided in Paragraph 3, the title and interest herein granted shall end, cease, and terminate, and title to the Easement, pipeline, equipment and facilities shall revert to the then owner of the Lands. 0 r Kitten Family Living Trust —Pipeline Easement Agreement 3 12. The grant of Easement herein contained is subject to all valid and subsisting easements, leases including oil, gas and wind energy leases, and rights -of -way of record affecting the Lands. 13. It is a condition precedent to the payment to the Grantor of the sum named herein that the title to the Lands described herein shall be vested in the Grantor, subject only to the interest of Grantee hereunder and to the matters set out in Paragraph 12 hereof and to such other defects, interests, or encumbrances as may be waived in writing by Grantee. Grantor shall provide to Grantee an executed release from any lien holder, tenant, lessee, or other party having an interest in the Easement prior to payment of the compensation called for in Paragraph 16 hereof. 14. Grantor shall procure and have recorded without cost to Grantee all assurances of title and affidavits which the Grantor may be advised by Grantee are necessary and proper to show in Grantor title sufficient to grant the above easement free and clear of encumbrances other than those encumbrances expressly defined herein. Abstracts or certificates of title or title insurance may be procured by the Grantee at its expense. The expense of recording this Easement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, if necessary, to obtain any curative documents needed. o 15. If Grantee, in its sole discretion, determines that the Easement conveyed to ' O Grantee and described herein should be acquired by judicial procedure, either to procure a safe title or for any other reason, then Grantor and Grantee hereby stipulate that the - ultimate award to the Grantor for the Easement conveyed to Grantee and described `W herein, shall be the same as the purchase price hereinafter stated in Paragraph 16, but should the Grantor own a lesser interest than that Easement conveyed to Grantee and F--� described herein, such award shall not exceed that portion of the purchase price stated in Paragraph 16 which the value of such lesser easement conveyed to Grantee bears to the value of the entire Easement described herein. 16. As complete consideration for the above grant of easement and for all the rights and privileges granted to the Grantee in this agreement, Grantee agrees to pay Grantor the one time sum of Twenty Thousand Ninety -Three and 71/100ths Dollars ($20,093.71). 17. "Grantee" when used in this instrument, shall include The City of Lubbock's officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 18. Words of any gender used in this agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. Kitten Family Living Trust --Pipeline Easement Agreement 4 19. A. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs), that may be suffered or incurred by Grantor, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement after the effective date of this agreement to the extent caused by Grantee's or its employees, contractors, or agents negligence or willful misconduct. B. When any losses, claims, demands, or causes of action of the types described in Section A of this paragraph are the result of joint or concurrent negligence or willful misconduct of Grantee or their respective employees, contractors or agents, each party's duty of indemnification will be in proportion to its allocable share of such joint liability to the extent permitted by law, as determined by a court of competent jurisdiction. C. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the easement and/or any rights granted hereunder, and Grantor shall be solely limited to the remedy of actual money damages for such claims, subject to those limitations contained in Paragraph 26 hereunder. o 20. Grantee agrees to the extent permitted by law to release, indemnify, O defend, and hold Grantor harmless from and against all claims, losses, damages, costs F--� (including legal costs), expenses and liabilities of whatsoever nature arising from —: pollution or contamination emanating from the Pipeline System and equipment of Grantee arising from or relating to the performance of this agreement (the "Grantee pollution liabilities"). For the avoidance of doubt, "Grantee pollution liabilities" shall IV exclude any such pollution liabilities arising from any condition existing before the effective date of the Easement. Grantor agrees to release, indemnify, defend, and hold Grantee harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities of whatsoever nature arising from (I) pollution emanating from the property and equipment of Grantor, (II) any condition existing before the effective date of the Easement, (III) pollution or contamination migrating or having migrated on, under, or to the Easement from any other location, and (IV) the possession, occupation or use of the remaining portions of the Grantor's adjacent property. 21. It is understood and agreed that this Easement is not a conveyance of the fee estate for any of the Lands covered hereunder, but is only an easement through, over, under, upon, across and within the Lands. 22. The provisions of this Easement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. 23. This Easement contains the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding Kitten Family Living Tnist—Pipeline Easement Agreement 5 pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. 24. In case any one or more of the provisions contained in this Easement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Easement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 25. Any notices or demands provided to be given herein by the parties shall be in writing and mailed by certified or registered mail to the other party at the address set forth above. Any notice or demand shall be deemed to have been received the earlier of five (5) days after the date of mailing or the date of actual delivery as shown by the addressee's certification or registry receipt. 26. Limitation on certain types of damages. Neither party shall be liable to the other party or any of such party's affiliates in any action or claim, including without any limitation, any action or claim for indemnity under Paragraphs 19 and 20, above, for loss of profit, loss of product, loss of use, or for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 27. Grantee agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not interfere with or endanger the operations or integrity of Grantee's Pipeline System and Permitted Uses. Additionally, the Grantor will not construct any facilities or perform any activities in or around the Easement and Lands that may violate federal and state regulations regarding the protection of drinking water supplies and facilities that convey such water. Grantor and Grantee agree and hereby give notice to any subsequent mineral, water, wind or energy lessee or grantee of any interest overlying or underlying the Lands owned by Grantor and the Easement, that Grantee will be operating the Pipeline System as a Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted on or in the vicinity of the Easement and Lands which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. Further, no structure shall be placed on the Easement, which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. A. To the extent that Grantor owns any portion of the mineral and/or royalty interest under the Lands defined herein, Grantor surrenders and releases its surface drilling rights and all other rights of surface use of the Easement and Lands incident to the production of oil, gas, hydrocarbons, minerals, wind energy, and water production subject to the following exception and limitation: r- Kitten Family Living Trust --Pipeline Easement Agreement 6 i) Grantor reserves and excepts from this release and retains for itself, its successors and its successors -in -interest, all rights to explore for, to drill and produce oil, gas and other hydrocarbons underlying or situated beneath the Easement and Lands by any means whatsoever, including wells directionally drilled from surface location on nearby lands so long as no surface operations are performed on the Easement and so long as such operations will not interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. ii) Grantor shall include the surface use restrictions and covenants provided herein in any subsequent lease or conveyance of the oil, gas and/or mineral estate, wind rights or interests and water rights or interests. 28. Grantee shall have the right to approve the location and means of future third -party pipelines which will cross Grantee's pipeline system. Grantee will not withhold reasonable crossing requests, but will act in a manner to protect Grantee's pipeline system. TO HAVE AND TO HOLD said Easement unto Grantee, its successors and assigns for so long as the same shall be used for the purposes aforesaid subject to the terms and conditions hereof o r [ Signatures of the Parties on Next Page ] O F-� Kitten Family Living Trust —Pipeline Ewement Agreement 7 EXECUTED this 9 day of Z144� , 2010 ("Effective Date"). GRANTOR: THE KITTEN FAMILY LIVING TRUST By: y Clydtit Kaitten, Co -Trustee LIM Kitten, Co -Trustee K. Scott, Co -Trustee GRANTEE: The City of Lubbock By: /i� Name: TOM MARTIN Title: Mayor [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: ATTEST: MaaLLI ZUJ Marsha Reed, P.E., Chief Operations Officer APPROVED TOFORM: Atto y Rebe a Garza, City Secr otay 0 r Kitten Family Living Trust --Pipeline Easement Agreement 8 STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on Cxil,-?3- Z(p , 2010, by CLYDE T. KITTEN, in his capacity as Co -Trustee of the KITTEN FAMILY LIVING TRUST. L_ MICHAEL D MORGAN .i NOTARY PUBLIC No ary ublic, State of Texas State of Texas '•'....... ' Camm. Exp. 07-23-2011 STATE OF TEXAS COUNTY OF LUBBOCK Printed Name of Notary My commission expires: This instrument was acknowledged before me on 2010, by EDWARD A. KITTEN, in his capacity as Co -Trustee of the KITTEN FAMILY LIVING TRUST. MICHAEL D MORGAN e i e? NOTARY PUBLIC ,�•., ,. �,,; State of Texas lic, State of Texas •...?...`•'•'' Comm. Exp.07-23-2011 Printed Name of Notary - My commission expires: W STATE OF `1 § COUNTY OF § This instrument was acknowledged before me on Zo C.,o,,s ,, 3 2010, by CHARLENE K. SCOTT, in her capacity as Co -Trustee of the KITTEN FAMILY LIVING TRUST. �o:%%f:;y MARY ELLEN WELCH Notary Public, State of Texan N&ary"PublZ State of My Commission Expires August se, sot t - Printed Name of Notary a,. �l{,��e��-c ►.� My commission expires: Kitten Family Living Trust —Pipeline Easement Agreement 9 STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on L5 , 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 e'Kas t 1;4 Webb Printed Name of Notary My commission expires: D -0 •;Ol Exhibits: "A" - Centerline Metes and Bounds Description of Pipeline System "B" - Survey Plat(s) of Centerline of Pipeline System Pipeline Right -Of -Way Safety Guidelines C Gate Construction Detail and Specifications �041� �r CD Kitten Family Living Trust —Pipeline Easement Agreement 10 Exhibit A Metes and Bounds Description of the Perpetual Exclusive Easement and The Temporary Easement C 0 EXHIBIT "A" PARCEL NO. 53 KITTEN FAMILY LIVING TRUST Resolution No. 2010-RO609 Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southwest Quarter of Section 5, Block 0, D. & W. R.R. Co. Survey, Lynn County, Texas and said pipeline centerline being described as follows: Beginning at a 1h" iron rod with cap, set in the East line of said Southwest Quarter of said Section 5, Block 0, for the beginning of this description, from whence a 3" pipe found for the Southeast corner of said Southwest Quarter of said Section 5, Block 0, bears South 1039'17" West, a distance of 627.31 feet, said point of beginning having a project coordinate of Y = 7199722.13 and X = 1008927.61; Thence North 55008'13" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 3155.31 feet to a 1/2" iron rod with cap, set in the West line of said Southwest Quarter of said Section 5, Block 0, for the end of this description, whence a 1h" rod found for the Northwest corner of said Southwest Quarter of said Section 5, Block O, bears North 1039'55" East, 281.34 feet. r` Containing 191.23 rods. (4.35 acres) The above described sixty foot (60) wide permanent pipeline easement is also subject to a sixty foot - (60') wide temporary construction easement being parallel and adjacent to said permanent pipeline easement, located and shown on the accompanying survey plat'and said temporary construction easement contains 4.35 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. ci 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 REVISED: August 10, 2009 ,.Sa®t.r. LJ kegistere4Yofessional Land Surveyor ®� .aaGeeoeoee�eeoeeeeeceaa. oeoRY06 ooa"memo e9eneeenate ee � 4- 6v ��p Date • - _ ��®,a.e .a �°-� A 9 SUP► % HIGH- TECH LAND AND GPS SURVEYORS, INC. 3330 70th St., Suite 202 - Lubbock, Texas 79413 (806) 788-0020 • Fax (806) 792-1646 Exhibit B Survey Plat(s) of Centerline and Description of that portion of the Pipeline System Requiring the Easement and Temporary Easement d< 0 .Q G.D rND O " EXHIBIT B1 Resolution No. 2010-RO609 53 S 88° 34'02" E 2640.0' "T FD.�/?" ROD FD. 1"IPIPEN �60'Permanent Easement Kitten Fomlly Living Tru ��� Vol.312 Pg.243 Johnny Dole Denzer i� \�� � \ o Vol. 370 P . 2l9 19123 Rods - Permanent Esmt. r: 9 ti\�\ (405 Ac. - Permanent Esmt I I � C.B. Schnlers -) �\� �/ 6Const. sm `�� � � 4.35 Ac. n� z 5EGT ION 5 bLOGC n P.O.B. X82.E- 0097 LYNN GOUNTY,TEXAS W FD. 3" 5 S 88035'00" E 2640.5' 2 • - Set I/2" Rod With Cap A legal description of even survey date herewith accompanies this survey plot. Syr -vexed on the group4L-Mq ch- ay, 2009 Registered C� fessional Land Surveyor Dote AllNorthings and Eastings shown ore pro. ct coordinates and may be converted to Texas State Plane Coordinates, North Central Zone, NAD83 by dividing by o surface SCALE 1' - 600' N REVISIO8-10-09 PLAT DATE adjustment factor of 1.000239E CLIENT: PARKHILL SMITH & COOPER -CITY OF LUE All distances shown are surface distances. DRAWN BY: B. BURROW ISURVEY DATE: 3- Bearin9s shown are grid bearings based on the Texas SURVEYED BY: J.M. MARTIN CHECKED BY: G. WIL State Plone Coordinate System, North Central Zone, FILE: PAR53.d n IFILE NO. 35 760 SHEET NAD83 Datum. This survey and allinformation hereon is for the exclusive use of IG 'M LAO t Gn Min CITY OF LUBBOCK and shallnot be copied or used except for the purpose for which MW 701s S7-SUITE 202 - LUMM, Tx.7"1J it is expressly furnished. this drawing and all copies (partial or 98DS1 788 OM - FAX (8061 792.*46 \ complete) shollbe returned to the owner upon demand. 5-4-0 )N OF 2 0 It Resolution No. 2010—RO609 Exhibit C PIPELINE EASEMENT SAFETY GUIDELINES So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the pipeline Easement (the "Easement"), as well as applicable laws and regulations: 1. Except during construction, operation, inspection, or maintenance of the Easement, Driving on the Easement is limited to use of currently established roadways, if any. 2. Permission on the Easement does not preclude the need to make a one -call to notify third - party pipeline owners of planned work. 3. Smoking outside vehicles within the Easement or lands or premises is prohibited. 4. No firearms, drugs, alcohol or cameras are permitted in the Easement. 6. Pedestrians and non -motorized traffic has right-of-way over motorized traffic 7. The maximum speed limit is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 8. Use horn for safety at blind corners and when passing. 9. Use established hand signals or turn indicators 10 Observe all signs including pipeline markers. 11. Come to complete stop on entering or leaving the Easement gates. 12. All persons entering the Easement must be fully clothed. 13. Grantee and personnel of Grantee are granted the right to temporarily use Grantor's property directly located outside of the Easement for such reasons as: a) avoidance of machinery, construction or equipment located on the Easement; and b) detouring around natural impediments such as rocks, trees or existing fences or structures; and c) repair, removal or maintenance of equipment or vehicles stranded on the Easement. 14. No debris or trash shall be discarded on the Easement. 0 r- Exhibit D Gate Construction Detail and Specifications Resolution No. 2010—RO609 6"x9'-6" SCH. 40 PIPE W/Y4" - 14'-0" NOES Erin FENCES AND GATES: fop PLATE ?" SCH. 10 PIPE CONCRETE -ti' SCH. W/Ny- 4TE _1 FAIL 'A" IEET 3' COLLAR 2" SCH. 40 PIPE ��D>m�. �� !llQ1r�N<�i�i■/ift///■/A//t N �I/N/S//p/Ni1I0�'"'�\ 'mow Iilt/R■/t///■■//■ won V � ��■�Ml1• N�f/■ I//Or.°.�/1��/A■■/////■ , I///iLtir�.v//�////■ Ems" l>t//i///////n.__ �//�■ io V4' GUSSET PLATE /, WELD ALL AROUND 2' SCH, 40 PIPE (TYPICAL) i HOLE (TYP.) NOTE.- ALL CONNECTIONS ARE WELDED ALL AROUND. _ GATE QEIAfL SCALE: 1/2°=1'-•O" 1. GATES To BE INSTALLED AT ALL FENCE CROSSINGS. UNLESS OTHERWISE DIRECTED BY THE OWNER. 2. ALL STEEL GATES, POSTS. CROSS BRACES. ETC.. SHALL BE PAINTED BLUE 3. PROVIDE I' LINK CHAIN AROUND GATE AND WELD TO SUPPORT POST. PROVIDE ONE HEAVY DUTY LOCK PER GATE KEYED PER OWNER'S LOCKS 4. CONTRACTOR SHALL VERIFY EXACT LOCATION OF ALL GATES WITH OWNER PRIOR TO CONSTRUCTION. 5. BARBED WIRE SHALL BE 12h GA. GALVANIZED BARBED WIRE. MINIMUM 5 STRAND FENCE OR AS PER EXISTING FENCE. WHICHEVER IS GREATER. WHERE EXISTING FENCE HAS PANEL FABRIC. INSTALL 394 PANEL FABRIC WITH 3 STRAND BARBED MORE, 47" PANEL FABRIC WITH 1 STRAND BARBED WIRE MINIMUM OR AS PER E=S1WG, WHICHEVER IS GREATER 6. CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONNECT TO EXISTING FENCE. PRIOR TO CUTTING EXISTING FENCE. 7. DIMENSIONS SHOWN ARE FOR FENCES CROSSING AT PERPENDICULAR ANGLE TO PIPELINE. WHERE FENCE CROSSES PIPELINE AT SKEWED ANGLE. DIMENSIONS SHALL BE INCREASED ACCORDINGLY. 2" SCH. 40 PIPE 6"x9'-6' SCH. 40 PIPE W/Y.° TOP PLATE SINGLE SWING GATE SECTION a °o r �i = 3 I h a a O W 40 o � I FIS'DIA. FF-TO w SEE NOTE 5SEE DETAIL 'C°i4%4° MESH WELD T -SHAPE POST GATE FRAME 1' LONG ON 6° C/C 6'-6" LONG (1.33 ¢/FT.) W/ANCHOR PLATE CONCRETE v 10A P FILED FOR RECORD ANY PROVISION HEREIN WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY AT OD O'CLOCK � M BECAUSE OF COLOR OR RACE IS INVALID AND UNENFOR- ON THE �J DAY OF K�7 CIBLE UNDER FEDERAL LAW. A.D.,Zt7 I . �`" STATE OF TEXAS � OFFICIAL PUBLIC Vol. t� I Page 51 i� COUNTY OF LYNN RECORD In the P Records Susan Tipton COUNTY CLERK, LYNN COUNTY, TEXAS BY lk— DEPUTY I hereby certify that this instrument was FILED on the date and at the time stamped hereon by me and was duly RECORDED In the Volume and Page of the named RECORDS of Lynn County, Texas, as stamped hereon by me. COUNTY CLERK LYNN COUNTY, TEXAS Contract. 9948 Resolution No. 2010-R0609 EASEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS, THAT: COUNTY OF LYNN § Clyde T. Kitten, Edward A. Kitten and Charlene K. Scott, Co -Trustees of the Kitten Family Living Trust with a mailing address of P.O. Box 640, Post, TX 79356 (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 Lynn 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 Kitten Family Living Trust --Pipeline Easement Agreement for the purpose of water transportation. Grantee shall use the Easement for the Permitted Uses and Pipeline System and for no other purposes or uses. 2. Grantee covenants and agrees that its use of the Easement and its operations conducted thereon shall, to the best of Grantee's ability, at all times comply with all applicable local, state and federal laws, orders, rules, regulations, standards, licensing, permitting and other legal requirements including, without limitation, all environmental laws, orders, rules, regulations, standards, licensing and permitting (the "Legal Requirements") and Grantor's rules and regulations as shown on Exhibit C attached hereto, particularly, but not limited to, those regarding safety, cleanup and distribution and removal of soil, rock and/or trees. Grantee agrees to construct the Pipeline System, in compliance with all Legal Requirements, and with due care for Grantor's property, business and operations. Fences and gates installed by Grantee shall meet the specifications described in, and be installed as specified in, Exhibit D attached hereto and made a part hereof. Grantor and Grantee shall each conduct its activities in such a manner as to not unduly interfere with or cause a disruption to the other's business, operations and property or those of other third parties entering or crossing the Easement. In the event it is discovered that Grantee is in violation of any portion of the Legal Requirements, Grantee agrees to commence, upon receipt of written notice of such violation, the process of curing such violation so that Grantee will be in compliance with this subparagraph. Upon completion of any construction project that is part of the Pipeline System and upon completion of any record survey, Grantee shall provide a copy to Grantor of the record survey showing the location of the Easement and Pipeline System and all other installed assets on the Grantor's lands. 3. If Grantee should abandon the Pipeline System, then this Easement and the rights herein granted shall automatically terminate and revert to, and become property of, Grantor, its successors and assigns. Grantee may abandon the Pipeline System solely by a formal resolution of its governing body that authorizes the abandonment of the Pipeline System and that further resolves that Lake Alan Henry is no longer necessary as part of Grantees water supply. Any such abandonment will not be effective until it is evidenced by notice in writing, signed by the Grantee's official representative, and filed of record in the county where the Lands are located. 4. The Easement Term is hereby defined as the period of time beginning with the granting of the Easement and continuing until such time that the Easement is abandoned by Grantee. 5. Grantee shall at all times during the Easement Term, at Grantee's sole cost and expense, keep the Pipeline System in a safe and properly maintained condition. Grantee shall promptly make all necessary or appropriate repairs, replacements and renewals of the Pipeline System, and keep and maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear excepted), and in such condition as may be required by applicable Legal Requirements. Grantee shall keep the Easement in good order, condition and repair following any work related to Permitted Uses on the Pipeline System. Kitten Family Living Trust —Pipeline Easement Agreement 6. Grantee shall be responsible for obtaining all permits necessary to construct and operate the Pipeline System on the Easement. Without limiting the foregoing, and to the extent required, Grantee will secure and maintain any and all environmental permits required by the Texas Commission on Environmental Quality covering the Easement. Grantee will provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and notify Grantor of any proposed changes to said permit(s). 7. Within the Easement, Grantee shall have the right to cut fences and install gates to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, it shall be properly supported on either side of the contemplated opening by suitable posts and braces. 8. The Pipeline System shall be so located or shall be buried at a sufficient depth so it does not interfere with current cultivation of the soil at the soil levels as they exist at time of execution of this Easement. Following completion of construction, the surface area shall be returned to its preconstruction condition as nearly as practicable. If any of the property shall be grassland, Grantee shall apply grass seed with a native mix from seed that is available and that is the same as existing native grass or comparable to the native grass in the disturbed area. 9. This grant of Easement shall not preclude the right of Grantor to cultivate, use, and enjoy the Lands for any purposes which will not constitute an interference with the Easement, rights and privileges herein granted to Grantee, or endanger any of Grantee's property. However, the right reserved by Grantor as to the perpetual Easement shall not include the right to erect any buildings, reservoirs, structures, or other improvements on the perpetual Easement without the advance written permission of Grantee. Grantee shall have reasonable access over and across the Lands at all times during initial construction. 10. Grantor, his successors, assigns, or agricultural lessees or tenants, if any, are to be compensated, as set out herein under Paragraph 16, for all damages to the lands and personal property located thereon, including but not limited to fences, crops, livestock, drainage and/or irrigation systems, as a result or related to the Grantee's use or occupation of the lands pursuant to the rights granted by this Easement, including but not limited to construction, future operation and maintenance of the Pipeline System. Payment of these damages and for the value of this Easement by Grantee, subject to the terms of this Paragraph 10, will be in an amount agreed to by Grantor and Grantee and shall be a one-time payment as set forth in Paragraph 16, for any and all of such damages, whether occurring or accruing at or after the time of construction of the pipeline system. 11. Grantee shall exercise due care and diligence in the use of the rights and privileges herein granted to it. In case of abandonment of said Easement as provided in Paragraph 3, the title and interest herein granted shall end, cease, and terminate, and title to the Easement, pipeline, equipment and facilities shall revert to the then owner of the Lands. Kitten Family Living Trust —Pipeline Easement Agreement 3 12. The grant of Easement herein contained is subject to all valid and subsisting easements, leases including oil, gas and wind energy leases, and rights -of -way of record affecting the Lands. 13. It is a condition precedent to the payment to the Grantor of the sum named herein that the title to the Lands described herein shall be vested in the Grantor, subject only to the interest of Grantee hereunder and to the matters set out in Paragraph 12 hereof and to such other defects, interests, or encumbrances as may be waived in writing by Grantee. Grantor shall provide to Grantee an executed release from any lien holder, tenant, lessee, or other party having an interest in the Easement prior to payment of the compensation called for in Paragraph 16 hereof. 14. Grantor shall procure and have recorded without cost to Grantee all assurances of title and affidavits which the Grantor may be advised by Grantee are necessary and proper to show in Grantor title sufficient to grant the above easement free and clear of encumbrances other than those encumbrances expressly defined herein. Abstracts or certificates of title or title insurance may be procured by the Grantee at its expense. The expense of recording this Easement shall be borne by Grantee. Grantor agrees to cooperate and aid Grantee, if necessary, to obtain any curative documents needed. 15. If Grantee, in its sole discretion, determines that the Easement conveyed to Grantee and described herein should be acquired by judicial procedure, either to procure a safe title or for any other reason, then Grantor and Grantee hereby stipulate that the ultimate award to the Grantor for the Easement conveyed to Grantee and described herein, shall be the same as the purchase price hereinafter stated in Paragraph 16, but should the Grantor own a lesser interest than that Easement conveyed to Grantee and described herein, such award shall not exceed that portion of the purchase price stated in Paragraph 16 which the value of such lesser easement conveyed to Grantee bears to the value of the entire Easement described herein. 16. As complete consideration for the above grant of easement and for all the rights and privileges granted to the Grantee in this agreement, Grantee agrees to pay Grantor the one time sum of Twenty Thousand Ninety -Three and 71/100ths Dollars ($20,093.71). 17. "Grantee" when used in this instrument, shall include The City of Lubbock's officers, agents, servants, employees, representatives, contractors, independent contractors, subcontractors, and/or their equipment or vehicles. 18. Words of any gender used in this agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. Kitten Family Living Trust —Pipeline Easement Agreement 4 19. A. To the extent permitted by law, Grantee hereby assumes all liability for, and agrees to indemnify, defend and hold Grantor harmless from all claims, demands, fines, damages, liabilities, losses, costs, expenses (including without limitation reasonable attorneys' fees and court costs), that may be suffered or incurred by Grantor, on account of injuries to or death of any persons, or damage to or destruction of any property, occurring on the Easement after the effective date of this agreement to the extent caused by Grantee's or its employees, contractors, or agents negligence or willful misconduct. B. When any losses, claims, demands, or causes of action of the types described in Section A of this paragraph are the result of joint or concurrent negligence or willful misconduct of Grantee or their respective employees, contractors or agents, each party's duty of indemnification will be in proportion to its allocable share of such joint liability to the extent permitted by law, as determined by a court of competent jurisdiction. C. A dispute related to claims for damages accruing under the terms hereof shall not be cause for the termination of the easement and/or any rights granted hereunder, and Grantor shall be solely limited to the remedy of actual money damages for such claims, subject to those limitations contained in Paragraph 26 hereunder. 20. Grantee agrees to the extent permitted by law to release, indemnify, defend, and hold Grantor harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities of whatsoever nature arising from pollution or contamination emanating from the Pipeline System and equipment of Grantee arising from or relating to the performance of this agreement (the "Grantee pollution liabilities"). For the avoidance of doubt, "Grantee pollution liabilities" shall exclude any such pollution liabilities arising from any condition existing before the effective date of the Easement. Grantor agrees to release, indemnify, defend, and hold Grantee harmless from and against all claims, losses, damages, costs (including legal costs), expenses and liabilities of whatsoever nature arising from (I) pollution emanating from the property and equipment of Grantor, (II) any condition existing before the effective date of the Easement, (III) pollution or contamination migrating or having migrated on, under, or to the Easement from any other location, and (IV) the possession, occupation or use of the remaining portions of the Grantor's adjacent property. 21. It is understood and agreed that this Easement is not a conveyance of the fee estate for any of the Lands covered hereunder, but is only an easement through, over, under, upon, across and within the Lands. 22. The provisions of this Easement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. 23. This Easement contains the final and complete expression of the parties with respect to any matter mentioned herein. No prior agreement or understanding Kitten Family Living Trust —Pipeline Easement Agreement 5 pertaining to any such matter shall be effective. This Easement may be modified in writing only, signed by the parties in interest at the time of the modification. 24. In case any one or more of the provisions contained in this Easement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Easement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 25. Any notices or demands provided to be given herein by the parties shall be in writing and mailed by certified or registered mail to the other party at the address set forth above. Any notice or demand shall be deemed to have been received the earlier of five (5) days after the date of mailing or the date of actual delivery as shown by the addressee's certification or registry receipt. 26. Limitation on certain types of damages. Neither party shall be liable to the other party or any of such parry's affiliates in any action or claim, including without any limitation, any action or claim for indemnity under Paragraphs 19 and 20, above, for loss of profit, loss of product, loss of use, or for indirect, consequential, punitive, exemplary, special or other similar types of damages, regardless of how caused and regardless of the underlying theory of recovery, and even if caused by the sole or concurrent negligence of the responsible party. 27. Grantee agrees not to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose, except as limited herein, provided that any such operation or use by Grantor, or Grantor's heirs, successors or assigns, shall not interfere with or endanger the operations or integrity of Grantee's Pipeline System and Permitted Uses. Additionally, the Grantor will not construct any facilities or perform any activities in or around the Easement and Lands that may violate federal and state regulations regarding the protection of drinking water supplies and facilities that convey such water. Grantor and Grantee agree and hereby give notice to any subsequent mineral, water, wind or energy lessee or grantee of any interest overlying or underlying the Lands owned by Grantor and the Easement, that Grantee will be operating the Pipeline System as a Permitted Uses as defined herein, and that no drilling, mining or other operation shall be conducted on or in the vicinity of the Easement and Lands which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. Further, no structure shall be placed on the Easement, which would interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. A. To the extent that Grantor owns any portion of the mineral and/or royalty interest under the Lands defined herein, Grantor surrenders and releases its surface drilling rights and all other rights of surface use of the Easement and Lands incident to the production of oil, gas, hydrocarbons, minerals, wind energy, and water production subject to the following exception and limitation: Kitten Family Living Trust —Pipeline Easement Agreement 6 i) Grantor reserves and excepts from this release and retains for itself, its successors and its successors -in -interest, all rights to explore for, to drill and produce oil, gas and other hydrocarbons underlying or situated beneath the Easement and Lands by any means whatsoever, including wells directionally drilled from surface location on nearby lands so long as no surface operations are performed on the Easement and so long as such operations will not interfere with or endanger the operations or integrity of the Pipeline System and Permitted Uses. ii) Grantor shall include the surface use restrictions and covenants provided herein in any subsequent lease or conveyance of the oil, gas and/or mineral estate, wind rights or interests and water rights or interests. 28. Grantee shall have the right to approve the location and means of future third -party pipelines which will cross Grantee's pipeline system. Grantee will not withhold reasonable crossing requests, but will act in a manner to protect Grantee's pipeline system. TO HAVE AND TO HOLD said Easement unto Grantee, its successors and assigns for so long as the same shall be used for the purposes aforesaid subject to the terms and conditions hereof. [ Signatures of the Parties on Next Page ] Kitten Family Living Trust —Pipeline Easement Agreement r EXECUTED this 3 �rday of A0zcw-An.L, , 2010 ("Effective Date"). GRANTOR: THE KITTEN FAMILY LIVING TRUST By: yzi,/� lyd . K;tten, Co -Trustee Kitten, Co -Trustee Un K. Scott, Co -Trustee GRANTEE: The City of Lubbock By:� / Name: TOM MARTIN Title: Mayor [Acknowledgements of the Parties on Next Page] APPROVED AS TO CONTENT: moaJI.L &J Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO • R Mite ,/ ey ATTEST: .61 CZ.- -9< - Rebe a Garza, City Secr otay Kitten Family Living Trust --Pipeline Easement Agreement 8 STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on (XTI c? tz— 1,& , 2010, by CLYDE T. KITTEN, in his capacity as Co -Trustee of the KITTEN FAMILY LIVING TRUST. MICHAEL D MORGAN No PUBLIC No ary ublic, State of Texas State of Texas Comm. Exp. 07-23-2011 Printed Name of Notary My commission expires: STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on (DC,,Iq §?�Zjo2010, by EDWARD A. KITTEN, in his capacity as Co -Trustee of the KITTEN FAMILY LIVING TRUST. MICHAEL D MORGAN NOTARY PUBLIC State of Texas °'•�_F `+'' Comm. Exp. 07-23-2011 STATE OF_ COUNTY OF lic, State of Texas Printed Name of Notary My commission expires: This instrument was acknowledged before me one �P 2010, by CHARLENE K. SCOTT, in her capacity as Co -Trustee of the KITTEN FAMILY LIVING TRUST. {I NII/ -'e�.!;F, MARY ELLEN WELCH NotaryPubl State of —[ p Ck_ Notary Public, State of Texas My Commission Expires August 28, 2011 Printed Name of Notary 0.r ,3 It nL0 elC.L-i My commission expires: 5<► a S1l a o t I Kitten Family Living Trust —Pipeline Easement Agreement 9 STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on Dfte" 6gr L5 , 2010, by TOM MARTIN on behalf of the City of Lubbock, a Texas Home Rule Corporation on behalf of said Texas Home Rule Corporation. EGCELIA WERE Notary work, so of texas W Canerde m Expkes Hl-?Ai4 :�__- Notary Public, State of etuMS N1;4 Webb Printed Name of Notary My commission expires: D -0 •2Ol 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 Kitten Family Living Trust —Pipeline Easement Agreement 10 Exhibit A Metes and Bounds Description of the Perpetual Exclusive Easement and The Temporary Easement EXHIBIT "A" PARCEL NO.53 KITTEN FAMILY LIVING TRUST Resolution No. 2010—RO609 Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being located in the Southwest Quarter of Section 5, Block O, D. & W. R.R. Co. Survey, Lynn County, Texas and said pipeline centerline being described as follows: Beginning at a 1/2" iron rod with cap, set in the East line of said Southwest Quarter of said Section 5, Block O, for the beginning of this description, from whence a 3" pipe found for the Southeast corner of said Southwest Quarter of said Section 5, Block O, bears South 1039'17" West, a distance of 627.31 feet, said point of beginning having a project coordinate of Y = 7199722.13 and X = 1008927.61; Thence North 55°08'13" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline easement, a distance of 3155.31 feet to a 1h" iron rod with cap, set in the West line of said Southwest Quarter of said Section 5, Block O, for the end of this description, whence a 1/2" rod found for the Northwest corner of said Southwest Quarter of said Section 5, Block O, bears North 1039'55" East, 281.34 feet. Containing 191.23 rods. (4.35 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 easement, located and shown on the accompanying survey plat and said temporary construction easement contains 4.35 acres of land. The said temporary construction easement shall expire as noted in the easement agreement. Notes: 1. A survey plat of even survey date herewith accompanies this legal description. 2. Surveyed on the ground March -May, 2009. 3. Bearings shown are grid bearings based on the Texas State Plane Coordinate System, Texas North Central Zone, Nad83 Datum. 4. All distance shown are surface distances. 5. Surface adjustment factor for entire project is 1.0002396 REVISED: August 10, 2009 I Land Surveyor IDate: - D 1 11 0 000egVoARY Ppe�fo�e�/oeQooe•�o■e••to�e+o��oo`eeoo o oeeEEoeeeoeae9pa�e.( Q Opai 4 ���� 0 30atnz's fdl �U�v� HIGH- TECH LAND AND GPS SURVEYORS, INC. 3330 70th St., Suite 202 - Lubbock, Texas 79413 (806) 788-0020 - Fax (806) 792-1646 Exhibit B Survey Plat(s) of Centerline and Description of that portion of the Pipeline System Requiring the Easement and Temporary Easement E XH113I 1 Resolution No. 2010-RO609 \ I 53 S 880 34'02" E 2640.0' VP ROD N � \ 6V Permanent Eosement '` 53 \\� \ Kitten Fomlly Llving Trust Johnny Dale Denzer r Vol.370 Pg.2l9 ��� V01.312 Pg.243 \� 19/23 Rods - Permanent Esmt. LID (4,35 Ac.- Permanent Esmt.) N 06�J'�\\\ 'L'/-&Y - Temporory LO s���` ,/ Const. Esmt. 4.35 Ac. '`�� �\\� \ 5 o W o l /4 S�GT I ON 5, OLOGK Po � WoKoKoGOoelumV Y L-YNN GOUNTY,TEXAS FD. 3" PIPE 2 S 88- 35'00" E 2540.51 5 •- Set I/2" Rod With Cap A legal description of even survey date herewil accompanies this survey plat. Syc-vqe}led on the grouyd-Mq ch- ay, 2009 Registered Vessional Land Surveyor Date 93 Y-0 70F. All Northings and Eastings shown are pro ect coordinates and may be converted to Texas State I�'lone Coordinates, North Central Zone, NAD83 by dividing by a surface SCALE: 1' - 600' adjustment factor of 1.0002396 All distances shown are surface distances. CLIENT PA f1R01AlAl RY: A Al RI Bearings shown are grid bearings based on the Texas SURVEYED BY: State Plone Coordinate System, North Central Zone, FILE: PAR53.d( NAD83 Datum. to h d- cc� N C.B. Schnlers 3 0 (n ./- -P.O.B. Y-7199722.13 X-1008927.61 -VISION: 8-10-09 IPLAT DATE: 5-4-09 SMITH & COOPER - CITY OF LUBBOCK ROW I SURVEY DATE:3-5,2009 A. MARTIN CHECKED BY: G. WILSON FILE NO.35.760 1 SHEET 1 OF 2 This survey and allinformation hereon is for the exclusive use of WMIE K CITY OF LUBBOCK 'Ni ►►1111�1nn G dun„ n1. and shall not be copied or used except for the purpose for which 3M 701n ST..SIITE M - LUBBOCK M 79413 it is expressly furnished. this drawing and ollcopies (porliolor (805) 788.0020 • FAX (SM) 722.18/8 complete) shollbe returned to the owner upon demand. Resolution No. 2010—RO609 Exhibit C PIPELINE EASEMENT SAFETY GUIDELINES So long as the Easement is in effect, Grantee personnel shall comply with the following safety and security regulations for the pipeline Easement (the "Easement"), as well as applicable laws and regulations: 1. Except during construction, operation, inspection, or maintenance of the Easement, Driving on the Easement is limited to use of currently established roadways, if any. 2. Permission on the Easement does not preclude the need to make a one -call to notify third - party pipeline owners of planned work. 3. Smoking outside vehicles within the Easement or lands or premises is prohibited. 4. No firearms, drugs, alcohol or cameras are permitted in the Easement. 6. Pedestrians and non -motorized traffic has right-of-way over motorized traffic 7. The maximum speed limit is twenty (20) miles per hour; however, much slower speeds are necessary in congested areas. 8. Use horn for safety at blind corners and when passing. 9. Use established hand signals or turn indicators 10 Observe all signs including pipeline markers. 11. Come to complete stop on entering or leaving the Easement gates. 12. All persons entering the Easement must be fully clothed. 13. Grantee and personnel of Grantee are granted the right to temporarily use Grantor's property directly located outside of the Easement for such reasons as: a) avoidance of machinery, construction or equipment located on the Easement; and b) detouring around natural impediments such as rocks, trees or existing fences or structures; and c) repair, removal or maintenance of equipment or vehicles stranded on the Easement. 14. No debris or trash shall be discarded on the Easement. Exhibit D Gate Construction Detail and Specifications Resolution No. 2010—RO609 B"r4'-6" SCH. 40 PIPE W/Vs" 14'-0" _ I NOTES FOR FENCES AND GATES: fOP PLATE ?" SCH. ND PIPE C014CRETE —6" SCH. FAIL "A" IEET 3' COLLAR 2" SCH. 40 PIPE iiIRANERq taiCI m§30 !tl�i>t��■.r�No>silsifrtf�l�st�f�ff�V rill �k � � � .►�r�Nf�litMl�w"t+Vr��lwtt�Q��■ Uif<VlEltiifl��_ Vr�>• i 2" SCH. 40 PIPE I Vi' GUSSET PLATE - WELD ALL AROUND (TYPICAL) NOTE: ALL CONNECTIONS ARE WELDED ALL AROUND. GATE DETAIL SCALE: 1/2"=1'-O' 1. GATES TO BE INSTALLED AT ALL FENCE CROSSINGS, UNLESS OTHERWISE DIRECTED BY THE OWNER. 2. ALL STEEL GATES. POSTS. CROSS BRACES, ETC., SHALL BE PAINTED BLUE. 3. PROVIDE 1" LINK CHAIN AROUND GATE AND WELD TO SUPPORT POST. PROVIDE ONE HEAVY DUTY LOCK PER GATE KEYED PER OWNER'S LOCKS. 4. CONTRACTOR SHALL VERIFY EXACT LOCATION OF ALL GATES WITH OWNER PRIOR TO CONSTRUCTION. 5 BARBED WIRE SHALL BE 12>4 GA. GALVANIZED BARBED WIRE. MINIMUM 5 STRAND FENCE OR AS PER EXISTING FENCE. WHICHEVER IS GREATER. WHERE EXISTING FENCE HAS PANEL FABRIC, INSTALL 39" PANEL FABRIC WITH 3 STRAND BARBED V®RE, 47' PANEL FABRIC WITH I STRAND BARBED WIRE MINIMUM OR AS PER EXISTING, WHICHEVER 15 GREATER. 6. CONTRACTOR SHALL INSTALL EXTERIOR FENCE SUPPORTS AND CONNECT TO EXISTING FENCE. PRIOR TO CUTTING EXISTING FENCE. 7. DIMENSIONS SHOWN ARE FOR FENCES CROSSING AT PERPENDICULAR ANGLE TO PIPELINE. WHERE FENCE CROSSES PIPELINE AT SKEWED ANGLE. DIMENSIONS SHALL BE INCREASED ACCORDINGLY. SINGLE SWING GATE SECTION z in 4"x4" MESH WELD TO GATE FRAME 1" LONG ON 6" C/C CONCRETE TYPICAL GATE SUPPORT n1= Tn11 Owner's Policy Of Ttle Insurance Issued by OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY ** * ** * * � * * ,* * * File Number: 31016A Policy Number: TO-08246291 Any notice of claim and any other notice or statemeM in writing required to be given the Company under this Polic� must be given to the Company at the address shown in Section 18 of the Conditions. COVERED RISKS SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, a Minnesota corporation (the "Company°) insures, as of Date of Policy and, to the extent stated in Covered Risks 9 and 10, after Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of: 1. Title being vested other than as stated in Schedule A. 2. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from: (a) A defect in the Title caused by: (i) forgery, frautl, undue influence, duress, incompetency, incapacity or impersonation; (ii) failure of any person or Entity to have authorized a transfer or conveyance; (iii) a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized or delivered; (iv) failure to perform those acts necessary to create a document by electronic means authorized by law; (v) a document executed under a falsified, expired or otherwise invalid power of attorney; (vi) a document not properly filed, recorded or indexed in the Public Records including failure to perform those acts by electronic means authorized by law; or (vii► a defective judicial or administrative proceeding. (b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but unpaid. �c) Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. The term "encroachmenY includes encroachments of existing improvements located on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land. (d) Any statutory or constitutional mechanic's, contractor's, or materialman's lien for labor or materials having its inception on or before Date of Policy. 3. Lack of good and indefeasible Title. 4. No right of access to and from the Land. 5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting or relating to: (a) the occupancy, use or enjoyment of the Land; (b) the character, dimensions or location of any improvement erected on the Land; (c) subdivision of land; or (d) environmental protection if a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to enforce, but only to the extent of the violation or enforcement referred to in that notice. 6. An enforcement action based on the exercise of a governmental police power not covered by Covered Risk 5 if a notice of the enforcement action, describing any part of the Land, is recorded in the Public Records, but only to the extent of the enforcement referred to in that notice. lssued through the Office of.• Po�ieY Issuer. OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY WEST TEXAS TITLE COMPANY, INC. A Stock Company 8001 QUAKER AVENUE, su� e 400 Second Avenue South, Minnea olis, Minnesota 55401 �uesoc�, rx �aa2a-0000 P PHONE: (806) 783�555 (612f 371-111 � " �ici�Yi�G^Cz� Authorized Countersignatory ^� Old Repub►►� a ional B1' �`I�l� President Title Ir:surance Co. ORTFomiT-1 �{ame Office Issue Owner Poliry af Title Insurance �� �—•�- ENective 1-3-2014 Attest �'— ` —"1 Secretary IMPORTANT NOTICE To obtain information or make a complaint: You may contact: Policy Issuer: WEST TEXAS TRLE COMPANY, INC. 8001 QUAKER AVENUE, SUITE E LUBBOCK, TX 794240000 PHONE: (806) 793�555 You may call Old Republic National Title Insurance Company's toll-free telephone number for information or to make a complaint at: (888►678-1700 You may also write to Old Aepublic National Title Insurance Company at: 777 Post Oak Boulevard, Suite 240 Houston, Texas 77056 Attn: Claims Department You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at: 18uo1 ��9 You may write the Texas Department of Insurance: P. 0. Box 149104 Austin, TX 78714-9104 Fax: �512) 475-1771 Web: http://www.tdi.state.tx.us E-mail: ConsumerProtectionC�ltdi.state,tx.us PREMIUM OR CLAIM DISPUTES: Should you have a dispute concerning your premium or about a claim you should contact the Old Republic National Title Insurance Company first. If the dispute is not resolved, you may contact the Texas Department of Insurance. ATTACH THIS NOTICE TO YOUR POLICY: This notice is for information only and does not become a part or condition of the attached document. AVISO IMPORTANTE Para obtener informacion o para someter una queja: Puede cominicarse con su: Poliey Issuer: WEST TEXAS TITLE COMPANY, INC. 8007 QUAKER AVENUE, SUITE E LUBBOCK, TX 79424-0000 PHONE: (806) 793-9555 Usted puede Ilamar al numero de telefono gratis de Old Republic National Title Insurance Company para informacion o para someter una queja al: (888�678-1700 Usted tambien puede escribir a Old Republic National Title Insurance Company: 777 Post Oak Boulevard, Suite 240 Houston, Texas 77056 Attn: Claims Department Puede comunicarse con el Departamento de Seguros de Texas para obtener informacion acerca de companies, coberturas, derechos o quejas al: (8001Z52-3439 Puede escribir al Departamento de Seguros de Texas: P. 0. Box 149104 Austin, TX 78714-9104 Fax: (512) 475-1771 Web: http://www.tdi.state.tx.us E-mail: ConsumerProtection�tdi.state.tx.us DISPUTAS SOBRE PRIMAS 0 RECLAMOS: Si tiene una disputa concerniente a su prima o a un reclamo, debe comunicarse con Old Republic National Title Insurance Company primero. Si no se resuelve la disputa, puede entonces comunicarse con el departmento ITDII. UNA ESTE AVISO A SU POIIZA: Este aviso es solo para proposito de informacion y no se convierte en parte o condicion del documento adjunto. � 7. The exercise of the rights of eminent domain if a notice of the exercise, describing any part of the Land, is recorded in the Public Records. 8. Any taking by a governmental body that has occurred and is binding on the rights of a purchaser for value without Knowledge. 9. Title being vested other than as statetl in Schedule A or being defective: (a) as a result of the avoidance in whole or in part, or from a court order providing an alternative remetly, of a transfer of all or any part of the title to or any interest in the Land occurring prior to the transaction vesting Title as shown in Schedule A be�ause that prior transfer constituted a fraudulent or preferential transfer under federal bankruptcy, state insotvency or similar creditors' rights laws; or (b) because the instrument of transfer vesting Title as shown in Schedule A constitutes a preferential transfer under federal bankruptcy, state insolvency or similar creditors' rights laws by reason of the failure of its recording in the Public Records: (i) to be timefy, or (ii► to impart notice of its existence to a purchaser for value or a judgment or lien creditor. 10. Any defect in or lien or encumbrance on the Title or other matter included in Covered Risks 1 through 9 that has been created or attached or has been filed or recorded in the Public Records subsequent to Date of Policy and prior to the recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of any matter insured against by this Policy, but only to the extent provided in the Conditions. EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting or relating to: (i► the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions or location of any improvement erected on the Land; (iii) subdivision of land; or (iv� environmental protection; or the effect of any violation of these laws, ordinances or governmental regulations. This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5. (b) Any governmental police power. This Exclusion 1�b� does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to 6y the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not 4. 5. 6. disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy �however, this does not modify or limit the coverage provided under Covered Risk 9 and 10); or le) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction vesting the Title as shown in Schedule A, is: (a) a fraudulent conveyance or fraudulent transfer; or (b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. The refusal of any person to purchase, lease or lend money on the estate or interest covered hereby in the land described in Schedule A because of Unmarketable Title. CONDITIONS 1. DEFINITION OF TERMS. The following terms when used in this policy mean: (a► "Amount of Insurance": the amount stated in Schetlule A, as may be increased or decreased by endorsement to this policy, increased by Section 8�b�, or decreased by Sections 1 0 and 11 of these Conditions. (b) "Date of Policy": The date designated as 'Date of Policy" in Schedule A. Ic) "Entity°: A corporation, partnership, trust, limited liability company or other similar legal entity. (d) "Insured": the Insured named in Schedule A. �i) The term "Insured" also includes: �A) successors to the Title of the Insuretl by operation of law as distinguished from purchase, including heirs, devisees, survivors, personal representatives or next of kin; �B► successors to an Insured by dissolution, merger, consolidation, distribution or reorganization; (C) successors to an Insured by its conversion to another kind of Entity; (D) a grantee of an Insured under a deed delivered without payment of actual valuable consideration conveying the Title; (11 If the stock, shares, memberships, or other equity interests of the grantee are wholly- owned by the named Insured, (2) If the grantee wholly owns the named insured, (3) If the grantee is wholly-owned by an affiliated Entity of the named Insured, provided the affiliated Entity and the named Insured are both wholly-owned by the same person or Entity, or (4) If the grantee is a trustee or beneficiary of a trust created by a written instrument established by the Insured named in Schedule A for estate planning purposes. (ii) With regard to (A►, (B►, (C) and (D) reserving, however, all rights and defenses as to any successor that the Company would have had against any predecessor Insured. (e) "Insured Claimant": an Insured claiming loss or damage. (f) "Knowledge" or 'Known": actual knowledge, not constructive knowledge or notice that may be imputed to an Insured by reason of the Public Records or any other records that impart constructive notice of matters affecting the Title. Ig) "Land': the land described in Schedule A, and affixed improvements that by law constitute real property. The term "Land' does not include any property beyond the lines of the area described in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but this does not modify or limit the extent that a right of access to and from the Land is insured by this policy. (h) "Mortgage": mortgage, deed of trust, trust deed, or other security instrument, including one evidenced by electronic means authorized by law. (i) "Public Records": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without Knowledge. With respect to Covered Risk 5�d►, "Public Records" shall also include environmental protection liens filed in the records of the clerk of the United States District Court for the district where the Land is located. (j) "Title": the estate or interest described in Schedule A. �k) "Unmarketable Title": Title affected by an alleged or apparent matter that would permit a prospective purchaser or lessee of the Title or lender on the Title to be released from the obligation to purchase, lease or lend if there is a contractual condition requiring the delivery of marketable title. 2. CONT/NUATIONOFINSURANCE. The coverage of this policy shall continue in force as of Date of Policy in favor of an Insured, but only so long as the Insured retains an estate or interest in the Land, or holds an obligation secured by a purchase money Mortgage given by a purchaser from the Insured, or only so long as the Insuretl shall have liability by reason of warranties in any transfer or conveyance of the Title. This policy shall not continue in force in favor of any purchaser from the Insured of either (i) an estate or interest in the Land, or (ii) an obligation secured by a purchase money Mortgage given to the Insured. 3. NOTICE OF CLA/M TO BE GIVEN BY INSURED CLAIMANT. The Insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 5�a) below, or (ii► in case Knowledge shall come to an Insured hereunder of any claim of title or interest that is adverse to the Title, as insured, and that might cause loss or damage for which the Company may be liable by virtue of this policy. If the Company is prejudiced by the failure of the Insured Claimant to provide prompt notice, the Company's liability to the Insured Claimant under the policy shall be reduced to the extent of the prejudice. When, after the Date of the Policy, the Insured notifies the Company as required herein of a lien, encumbrance, adverse claim or other defect in Title insured by this policy that is not excluded or excepted from the coverage of this policy, the Company shall promptly investigate the charge to determine whether the lien, encumbrance, adverse claim or defect or other matter is valid and not barred by law or statute. The Company shall notify the Insuretl in writing, within a reasonable time, of its determination as to the validity or invalidity of the Insured's claim or charge under the policy. If the Company concludes that the lien, encumbrance, adverse claim or defect is not covered by this policy, or was otherwise addressed in the closing of the transaction in connection with which this policy was issued, the Company shall specifically advise the Insured of the reasons for its determination. If the Company concludes that the lien, encumbrance, adverse claim or defect is valid, the Company shall take one of the following actions: �i) institute the necessary proceedings to clear the lien, encumbrance, adverse claim or defect from the Title as insured; (ii) indemnify the Insured as provided in this policy; (iii) upon payment of appropriate premium and charges therefore, issue to the Insured Claimant or to a subsequent owner, mortgagee or holder of the estate or interest in the Land insured by this policy, a policy of title insurance without exception for the lien, encumbrance, adverse claim or defect, said policy to be in an amount equal to the current value of the Land or, if a loan policy, the amount of the loan; (iv1 indemnify another title insurance company in connection with its issuan�e of a policy►ies) of title insurance without exception for the lien, encumbrance, adverse claim or defect; (v) secure a release or other document discharging the lien, encumbrance, adverse claim or defect; or (vi) undertake a combination of �i) through Iv) herein. 4. PROOf OF LOSS. In the event the Company is unable to determine the amount of loss or damage, the Company may, at its option, require as a condition of payment that the Insured Claimant furnish a signed proof of loss. The proof of loss must describe the defect, lien, encumbrance or other matter insuretl against by this policy that constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. 5. DEfENSEAND PROSECUTION OFACTIONS. (a) Upon written request by the Insured, and subject to the options contained in Sections 3 and 7 of these Conditions, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an Insured in litigation in which any third party asserts a claim covered by this policy adverse to the Insured. This obligation is limited to only those stated causes of action alleging matters insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the Insured to object for reasonable cause) to represent the Insured as to those stated causes of action. It shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the Insured in the defense of those causes of action that allege matters not insured against by this policy. (bl The Company shall have the right, in addition to the options contained in Sections 3 and 7, at its own cost, to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the Title, as insuretl, or to prevent or reduce loss or damage to the Insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable to the Insured. The exercise of these rights shall not be an admission of liability or waiver of any provision of this policy. If the Company exercises its rights under this subsection, it must do so diligently. (c) Whenever the Company brings an action or asserts a defense as required or permitted by this policy, the Company may pursue the litigation to a final determination by a court of competent jurisdi�tion and it expressly reserves the right, in its sole discretion, to appeal from any adverse judgment or order. DUTY Of INSURED CLAIMANT TO COOPERATE. (a) In all cases where this policy permits or requires the Company to prosecute or provide for the tlefense of any action or proceeding and any appeals, the Insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, including the right to use, at its option, the name of the Insured for this purpose. Whenever requestetl by the Company, the Insured, at the Company's expense, shall give the Company all reasonable aid (i) in securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and lii) in any other lawful act that in the opinion of the Company may be necessary or desirable to establish the Title or any other matter as insured. If the Company is prejutliced by the failure of the Insured to furnish the required cooperation, the Company's obligations to the Insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation. (b) The Company may reasonably require the Insured Claimant to submit to examination under oath by any authorized representative of the Company and to produce for examination, inspection and copying, at such reasonable times and places as may be designated by the authorized representative of the Company, all records, in whatever medium maintained, including books, ledgers, checks, memoranda, correspondence, reports, e-mails, disks, tapes, and videos whether bearing a date before or after Date of Policy, that reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the Insured Claimant shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all of these records in the custody or control of a third party that reasonably pertain to the loss or damage. All information designated as confidential by the Insured Claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the Insured Claimant to submit for examination under oath, produce any reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in this subsection, unless prohibited by law or governmental regulation, shall terminate any liability of the Company under this policy as to that claim. 7. OPTIONS TO PAV OR OTHERW/SE SETTLE CLAIMS,� TERMINATION OFLIABILIIY. In case of a claim under this policy, the Company shall have the following additional options: �a) To Pay or Tender Payment of the Amount of Insurance. To pay or tender payment of the Amount of Insurance under this policy together with any costs, attorneys' fees and expenses incurred by the Insured Claimant that were authorized by the Company up to the time of payment or tender of payment and that the Company is obligated to pay. Upon the exercise by the Company of this option, all liability and obligations of the Company to the Insured under this policy, other than to make the payment required in this subsection, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant. (i) to pay or otherwise settle with other parties for or in the name of an Insured Claimant any claim insuretl against under this policy. In addition, the Company will pay any costs, attorneys' fees and expenses incurretl by the Insured Claimant that were authorized by the Company up to the time of payment and that the Company is obligated to pay; or (ii) to pay or otherwise settle with the Insured Claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses incurred by the Insured Claimant that were authorized by the Company up to the time of payment and that the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in subsections (b)�i) or (ii), the Company's obligations to the Insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute or continue any litigation. 8. DETERMINATION AND EXTENT OF LIABILIIY. This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the Insured Claimant who has suffered loss or damage by reason of matters insured against by this policy. (a) The extent of liability of the Company for loss or damage under (b) (cl �a this policy shall not exceed the lesser of: (i) the Amount of Insurance; or (ii) the difference between the value of the Title as insured and the value of the Title subject to the risk insured against by this policy. If the Company pursues its rights under Section 3 or 5 and is unsuccessful in establishing the Title, as insured, (i) the Amount of Insurance shall be increased by 10%, and (ii) the Insured Claimant shall have the right to have the loss or damage determined either as of the date the claim was made by the Insured Claimant or as of the date it is settled and paid. In addition to the extent of liability under (a) and (b►, the Company will also pay those costs, attorneys' fees and expenses incurred in accordance with Sections 5 and 7 of these Contlitions. L/MITATION Of LIAB/L/7Y. (a) If the Company establishes the Title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the Land, all as insured, or takes action in accordance with Section 3 or 7, in a reasonably diligent manner by any method, including litigation and the completion of any appeals, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused to the Insured. (b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals, adverse to the Title, as insured. (c) The Company shall not be liable for loss or damage to the Insured for liability voluntarily assumed by the Insured in settling any claim or suit without the prior written consent of the Company. 13. RI�HTS OFRECOVERY UPON PAYMENT OR SETTLEMENT. (a) Whenever the Company shall have settled and paid a claim under this policy, it shall be subrogated and entitled to the rights of the Insured Claimant in the Title and all other rights and remedies in respect to the claim that the Insured Claimant has against any person or property, to the extent of the amount of any loss, costs, attorneys' fees and expenses paid by the Company. If requested by the Company, the Insured Claimant shall execute documents to evidence the transfer to the Company of these rights and remedies. The Insured Claimant shall permit the Company to sue, compromise or settle in the name of the Insured Claimant and to use the name of the Insuretl Claimant in any transaction or litigation involving these rights and remedies. If a payment on account of a claim does not fully cover the loss of the Insured Claimant, the Company shall defer the exercise of its right to recover until after the Insured Claimant shall have recovered its loss. (b) The Company's right of subrogation includes the rights of the Insured to indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments that address subrogation rights. 14. ARBITRATION. Either the Company or the Insured may demand that the claim or controversy shall be submitted to arbitration pursuant to the Title Insurance Arbitration Rules of the American Land Title Association ("Rules"►. Except as provided in the Rules, there shall be no joinder or consolidation with claims or controversies of other persons. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Insured arising out of or relating to this policy, any service in connection with its issuance or the breach of a policy provision, or to any other controversy or claim arising out of the transaction giving rise to this policy. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or the Insured, unless the Insured is an individual person (as distinguished from an Entity►. All arbitrable matters when the Amount of Insurance is in excess of $2,000,000 shall be arbitrated only when agreed to by both the Company and the Insured. Arbitration pursuant to this policy and under the Rules shall be binding upon the parties. Judgment upon the award rendered by the Arbitrator�s► may be entered in any court of competent jurisdiction. 10. REDUCTION OF INSURANCE,� REDUCTION OR TERM/NATION OF 15. LIABILITY. All payments under this policy, except payments made for costs, attorneys' fees antl expenses, shall reduce the Amount of Insurance by the amount of the payment. 11. LIABILITYNONCUMULATIVE. The Amount of Insurance shall be reduced by any amount the Company pays under any policy insuring a Mortgage to which exception is taken in Schedule B or to which the Insured has agreed, assumed, or taken subject or which is executed by an Insured after Date of Policy and which is a charge or lien on the Title, and the amount so paid shall be deemed a payment to the Insured under this policy. 12. PAYMENTOFLOSS. When liability and the extent of loss or damage have been definitely fixed in accordance with these Conditions, the payment shall be made within 30 days. LIABILITY LIMITED TO THIS POLICY,� POLICY ENTIRE CONTRACT. (a) This policy together with all endorsements, if any, attached to it by the Company is the entire policy and contract between the Insured and the Company. In interpreting any provision oi this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage that arises out of the status of the Title or by any action asserting such claim, shall be restricted to this policy. (c) Any amendment of or endorsement to this policy must be in writing and authenticated by an authorized person, or expressly incorporated by Schedule A of this policy. (d) Each endorsement to this policy issued at any time is made a part of this policy and is subject to all of its terms antl provisions. Except as the endorsement expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii► modify any prior endorsement, (iii) extend the Date of Policy or (iv) increase the Amount of Insurance. Each Commitment, endorsement or other form, or provision in the Schedules to this policy that refers to a term defined in Section 1 of the Conditions shall be deemed to refer to the term regardless of whether the term is capitalized in the Commitment, endorsement or other form, or Schedule. Each Commitment, endorsement or other form, or provision in the Schedules that refers to the Conditions and Stipulations shall be deemed to refer to the Conditions of this policy. 16. SEVERABILIIY. In the event any provision of this policy, in whole or in part, is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision or such part held to be invalid and all other provisions shall remain in full force antl effect. 17. CHOICE Of LAW,� fORUM. ►a) Choice of Law: The Insured acknowledges the Company has underwritten the risks covered by this policy and determined the premium charged therefor in reliance upon the law affecting interests in real property and applicable to the interpretation, rights, remedies or enforcement of policies of title insurance of the jurisdiction where the Land is located. Therefore, the court or an arbitrator shall apply the law of the jurisdiction where the Land is located to determine the validity of claims against the Title that are ativerse to the Insured, and in interpreting antl enforcing the terms of this policy. In neither case shall the court or arbitrator apply its conflicts of laws principles to determine the applicable law. �b) Choice of Forum: Any litigation or other proceeding brought by the Insured against the Company must be filed only in a state or federal court within the United States of America or its territories having appropriate jurisdiction. 18. NOTICES, WHERE SENT. Any notice of claim and any other notice or statement in writing required to be given the Company under this Policy must be given to the Company at 777 Post Oak Blvd., Ste. 240, Houston, Texas 77056. FOR INFORMATION, OR TO MAKE A COMPLAINT, CALL:1-888-678-1700 OWNER'S POLICY OF TITLE INSURANCE (Form T-1) Issued by OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY SCHEDULE A Name and Address of Title Insurance Company: OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY 400 Second Avenue South, Minneapolis, Minnesota 55401 File No.: 31016A Address for Reference only: N/A Amount of Insurance: $16,254.55 Date of Policy: February 3, 2011, at 09:00 pm Name of Insured: The City of Lubbock, Texas 2. The estate or interest in the Land that is insured by this policy is: Easement 3. Tide is insured as vested in: The City of Lubbock, Texas OLD REPUBLIC NATIONAL TTTLE INSURANCE COMPANY By� ��i i.J/�c�cGw�� Old Republic Nalional Authorized Countersignatory TiUe Insurance Co. Home Olfice Issue Form T-l: Owner's Policy of Title Insurance Policy No.: TO-08246291 Premium: $274.00 Page 1 The land referred to in this policy is described as follows: Easement estate created by easement dated December 3, 2010, from Clyde T. Kitten, Edward A. Kitten, and Charlene K. Scott, Co-Trustees of the Kitten Family Living Trust to the City of Lubbock, Texas, recorded under Instrument #2011-0231 of the Official Public Records of Lynn County, Texas, in and to the following property lying and situated in Lynn County, Texas: Field Notes describing the centerline of a Sixty-Foot (60') wide permanent pipeline easement being located in the Southwest Quarter of Section 5, Block O, D. & W. R.R. Co. Survey, Lynn County, Texas and said pipeline centerline being described as follows: BEGINNING at a�" iron rod with cap, set in the East line of said Southwest Quarter of said Section 5, Block O, for the beginning of this description, from whence a 3" pipe found for the Southeast corner of said Southwest Quarter of Section 5, Block O, bears South 1°39'17" West, a distance of 627.31 feet, said point of beginning having a project coordinate of Y= 7199722.13 and X=1008927.61; THENCE North 55°08'13" West, along the centerline of said Sixty-Foot (60') wide permanent pipeline easement, a distance of 3155.31 feet to a%z" iron rod with cap, set in the West line of said Southwest Quarter of said Section 5, Block O, for the end of this description, whence a'/:" rod found for the Northwest corner of said Southwest Quarter of Section 5, Block O, bears North l°39'S5 East, 281.34 feet. NOTE: The Company is prohibited from insuring the area or quantity of the land described herein. Any statement in the above legal description of the area or quantity of land is not a representation that such area or quantity is correct, but is made only for informational and/or identi�cation purposes and does not override Item 2 of Schedule B hereof. OWNER'S POLICY OF TITLE INSURANCE (Form T-1) Issued by OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY SCHEDULE B File No.: 31016A Policy No.: TO-08246291 EXCEPTIONS FROM COVERAGE This policy does not inswe against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) that arise by reason of the terms and conditions of the leases and easements, if any, shown in Schedule A, and the following matters: 1. T'he following restrictive covenants of record itemized below (the Company must either insert specific recording data or delete this exception): This exception is hereby deleted in its entirety. 2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. 3. Homestead or community property or survivorship rights, if any, of any spouse of any Insured. 4. Any titles or rights asserted by anyone, including but not limited to, persons, the public, corporations, governments or other entities, (a) to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs or oceans, or (b) to lands beyond the line of the harbor or bulkhead lines as established or changed by any government, or (c) to filled-in lands, or artificial islands, or (d) to statutory water rights, including riparian rights, or (e) to the azea extending from the line of inean low tide to the line of vegetation, or the right of access to that azea or easement along and across that azea. 5. Standby fees, taxes and assessments by any taxing authority for the year 2010, and subsequent years; and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership, but not those taxes or assessments for prior years because of an exemption granted to a previous owner of the property under Section 11.13, Texas Tax Code, or because of improvements not assessed for a previous tax year. 6. The following matters and all terms of the documents creating or offering evidence of the matters (The Company must insert matters or delete this exception).: a) Terms, conditions, provisions, and stipulations contained within Easement dated December 3, 2010, from Clyde T. Kitteu, Edward A. Kitten, and Charlene K. Scott, Co-Trustees of the Kitten Family Living Trust to The City of Lubbock, Texas, recorded under Instrument #2011-0231 of the Official Public Records of Lynn County, Texas. b) Save and except 1/32 of all oil, gas and minerals reserved unto E. N. Lundberg in Warranty Deed dated March 2, 1949, of OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY By: �,�1°n.fcGe� Authorized Countersignatory Old Republic NaUonal Tille Irsurante Co• Form T-1: Owner's Policy of Title Insurance Home Office Issue Page 3 Continuation of Schedule B Policy No. TO-08246291 record in Volume 97, Page 358, Deed Records of Lynn County, Texas. c) Save and except 1/64. of all oil, gas and mInerals reserved unto Alex O. Bednarz in Warranty Deed dated February 7, 1950, of record in Volume 106, Page 11, Deed Records of Lynn County, Texas. d) Subject to the rules and regulations of the High Plains Underground Water Conservation District No. 1. e) Rights of parties in possession. � All visible and apparent easements not shown by the public records of Lynn County, Texas. OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY �cJ �l�.wl� By: �,�,^'� °'-`9 Authorized Countersignatory Old Republic Nalfonal Title Irsurance Co. Form T-1: Owner's Policy of Title Insurance Home Off�ce Issue Page 4 GF No. 31016A OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY Owner's Policy No.: TO-08246291 Premium Amount Rate Rules Property County Liability Policy Date Type Code 1 2 3 4 5 6 7 8 $274.00 1000 305 $16,25455 02/03/Z011 � A. ;,;,, ; * ��l���� *� .c �I��Ei�� 6. FII.E NUMBER: I 7. LOAN NUMBER: 09-31016 SETTLEMENT STATEMENT 8. MORTGAGE 1NSURANCE CASE NUMBER: I U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT I C. NOTE: This form is fumished to give you a statement of actual settlement costs. Amounts paid to and by the settlement agent are shown. Items marked "(p.o.c.)" were paid outside the closing; they are shown here for informational purposes and are not included in totals. D. NAME & ADDRESS OF BORROWER E. NAME & ADDRESS OF SELLER F. NAME & ADDRESS OF LENDER City of Lubbock, Texas Kitten Fanuly Living Trust NONE Attn: Dave Booher 1625 13th Street Lubbock, Texas 79401 G. PROPERTY LOCATION Parcel #53 Lake Alan Henry raw water line easement % Section 5, Block O, Lynn County, Texas los. Adiustments for items paid by seller 106. Cin� taxes 107. County taxes 108. Assessments. I 09. I]0. 111. 112. 120. GROSS AMOUi�TT DUE FROM BOF 200. AMOLJNTS PAID BY OR II�' E 201. Deposit or Eamest Monev 202. Principal $ of new loan 203. Existin� Loans taken 204. 205. 206. 207. � 210. City taxes � 21 l. Counri taxes 212. Assessments for items unnaid bv seller I 217. 218. 219. 220. TOTAL PAID BI'/FOR BORROWER 300. CASH AT SETTLEMENT FROM/I'� OMB No. 2502-0265 iA■ �r:I:� B. TYPE OF LOAN FMHA 3. CONV. [II�TII�S. H. SETTLEMENT AGENT (Ph) 806-793-9555 West Texas Title Co 8001 Quaker, Suite E Lubbock. TX 79424 1. SETTLEMENT DATE 25 January, 2011 DISBURSMENT DATE 25 Januarv. 2011 taxes Phone: PLACE OF SETTLEMENT West Texas Title Co 8001 Quaker, Suite E Lubbock, TX 79424 PH:806-793-9555 FAX:806-793-9574 503. Existing Loans taken 504. Pavoff of 1 st mt� loan 505. Pavoff of 2nd mtQ loan 506. 507. Kurt Kitten: Crop dama� 508. 509. Adjustments for items 510. Citv taxes 511. County taxes 512. Assessments 513. 514. 515. 516. 517. 518. 519. 520. TOTAL REDUCTION TO/FROM SELLER 302. Less amts d b/for borrower (L 220 602. Less reductions due seller (L 520 2 8 7 9. 3 7 303. CASH � FROM) ( TO) BORROVVER 21, 14 8. 71 603. CASH � TO) ( FROM) SELLER 1%, 214 . 3 4 The Public Reporting Burden for this collection of information is estimated at 35 minutes per response for collecting, reviewing. and reporting the data. This agency may not collect this information, and you are not required to complete tlus form, unless it displays a currently valid OMB control number. No confidentialiry is assured; this disclosure is mandatory. This is designed to provide the parties to a RESPA covereci transaction with information during the settlement process. Copyright OO Spencer S��stems Inc Sales:l-800-992-1362 Support:l-575-336-4018 emai►: info@spencersystemsinc.com RESPA HB 430�.2 Pa�e 2 of 3 OMB No. 2502-0: • L. SETTLEAZENT CHARGES. GF: 09-31016 700.'TO'TAL SALESBROKER'S CONIIvIISSIOI�' on � �a� . O O %= pAID FROM PAID FROM Division of co�runission as follo�t�s: � BORROWER'S SELLER'S 701. � . O O to FCTNDS AT F[JNDS AT 7n� � (1(1 r� SETTLEMENT SETTLEMEI�TT 800. ITEMS PA 801. Loan Ori . fee 802. Loan Discount 807. 808. 809. 810. 811. 812. 813. 814. 905. 906. Fee : LENDER TO BE PAID W ADVANCE thn, (cr� $ . 0 0 0 months Prem for mo. mo. ] 004. Cn � 1005. Annu 1006. ] 007. 1008. 1 /6th 1100. T 1101. Escrc taxes mo. na, � mo. (�a, $ tments West Texas Title Com Lvnn Countv Abstract l 106. Ex ress fees 1107. Tax certificate to includes above item 1108. Title insurance to (includes above item 1109. Lender's coverase I 110. Owner's covera¢e 1111. 1112. 1113. I 1200. 1201. R� 1202. Ci West � � RIVMENT RECORDING AND TRANSFER fees: Deed 5 . 0 0 :Mtg � . 0( tamps : Deed � . 0 O:Morte� imps : Deed � . 0 O;Morte� Easement Curative / / mo. 1301. Survev to: 1302. Pest in : 1303. 1304. 1305. 1306. 1307. 1400. TOTAL SETTLEMENT CHARGES (enter on lines 103. Sec J and �02, Sec K) 1 0 5 5. � � SUBSTITUTE FORM ]099 SELLER STATEMENT--The information contained in Blocks E, G, H, and 1 and on line 401 is important tax information and is being fumished to the Internal Revenue Service in lieu of form 1099-S.