HomeMy WebLinkAboutResolution - 2010-R0610 - Contract 9951 E.C. Smallwood 60-Foot Wide Pipeline Easement For Lake Alan Henry - 12_15_2010Resolution No. 2010-RO610
December 15, 2010
Item No. 5.15
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, a Contract for Purchase of
Easement for a pipeline easement interest located on certain property owned by E. C.
Smallwood, located in Garza County, and all related documents. Said Contract for
Purchase of Easement is attached hereto and incorporated in this Resolution as if fully set
forth herein and shall be included in the minutes of the Council.
Passed by the City Council on December 15 _ , 2010.
TOM" ARTIN, MAYOR
ATTEST:
Rebe a Garza, City Secreta
I APPROVED AS TO CONTENT:
M "1 w;� -
Marsha Reed, P.E., Chief Operation Officer
Dave Booher, Right -of -Way Agent
APPROVED AS TO FORM:
ttorney
Res.Contract Purch of Pipeline Easement-E. C. Smallwood
12,8.10
Resolution No. 2010-RO610
Contract: 9951
CONTRACT FOR PURCHASE OF EASEMENT
This Contract for Purchase of Easement (the "Contract") is made on this 15thday of
December , 2010 ("Effective Date"), by and between E.C. Smallwood (referred to herein
as "Seller" whether one or more) and the City of Lubbock, Texas, a Texas home rule municipal
corporation (referred to herein as "Buyer").
RECITALS
VVHEREAS, Seller owns the Easement Area (as defined in the Easement Agreement (the
"Easement Agreement") attached hereto as Exhibit A) and the Temporary Easement Area (as
defined in the Easement Agreement) (the Easement Area and the Temporary Easement Area shall
be collectively referred to herein as the "Easement Area"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a
permanent and temporary easement (collectively, the "Easement") over, across and upon the
Easement Area, and the Temporary Easement Area in accordance with the terms of the Easement
Agreement.
ARTICLE I
SALE OF EASEMENT
For the consideration hereinafter set forth, and upon the terms, conditions and provisions
herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from
Seller, the Easement and all rights incident thereto as described in the Easement Agreement attached
hereto and incorporated herein for all purposes.
ARTICLE H
PURCHASE PRICE AND EARNEST MONEY
2.01 Purchase Price. Subject to the provisions of Section 2.02 below, the Purchase Price to be
paid to Seller for the Easement described herein is the sum of TEN THOUSAND FIVE HUNDRED
NINETY-SEVEN AND 80/100 DOLLARS ($10,597.80), (the "Purchase Price") which amount is
the sum of the amounts set forth in Paragraph 16 of the Easement Agreement.
2.02 Representation on Offers. The Easement will be part of a water pipeline which is to extend
from Lake Alan Henry in Garza County, Texas to the City of Lubbock treatment plant in Lubbock
County, Texas (the "Water Pipeline Route"). Buyer represents that it has not and will not (i)
voluntarily offer to pay any landowner along the Water Pipeline Route a sum greater than $85 a rod
as damages for the taking of the land for a permanent and temporary Easement (excluding crop
damages or damages to existing improvements; or (ii) grant any landowner along the Water Pipeline
Route a "favored nation clause" or similar right to have its per rod compensation for an easement
increased based upon a greater amount per rod being paid to another landowner.
2.03 Independent Contract Consideration. Within five (5) business days after the Effective
Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and
No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties
CONTRACT OF SALE
E.C. Smallwood — City of Lubbock
hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's
execution and delivery of this Contract. The Independent Contract Consideration is to be credited
against the Purchase Price at closing, if Closing (as identified below) occurs.
ARTICLE III
TITLE AND SURVEY
3.01 Title Commitment. Within fifteen (15) calendar days after the Effective Date, Buyer, at
Buyer's sole cost and expense, shall cause to be furnished to Buyer a current Commitment for Title
Insurance (the "Title Commitment") for the Property, issued by West Texas Title Company ("Title
Company") setting forth its exceptions to title ("Exception/Exceptions") and copies of any such
Exceptions.
3.02 Survey. Buyer, at Buyer's sole cost and expense, has caused a current on the ground survey
for the Property (the "Survey") to be delivered to Buyer. Seller shall furnish any affidavits,
certificates, assurances, and/or resolutions required by the Title Company, if any, in order to amend
the survey exceptions as required by Section 3.05 below.
3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a
period of forty-five (45) calendar days (the "Title Review Period") commencing with the day Buyer
receives the last of the Title Commitment, the Survey, and the Exception documents, in which to
give written notice to Seller, specifying Buyer's objections to one or more of the items
("Objections"), if any. All items set forth in the Schedule C of the Title Commitment, and all other
items set forth in the Title Commitment which are required to be released at or prior to Closing, shall
be deemed to be Objections.
3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies Seller of
Objections to any of the matters furnished to Buyer pursuant to Section 3.03, the Seller shall, within
fifteen (15) calendar days after Seller is provided notice, either satisfy the Objections at Seller's sole
cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not
satisfy at Seller's expense. If Seller fails or refuses to satisfy any Objections within the allowed
fifteen (15) calendar day period, such cure period shall be automatically extended an additional
fifteen (15) days. If the obligation remains unsatisfied, and if Buyer and Seller do not agree in
writing to an extension of that period, then Buyer has the option of either:
(i) waiving the unsatisfied Objections by, and only by, notice in writing to Seller within
forty-five (45) calendar days after the expiration of the Title Review Period, in which
event those Objections shall become Permitted Exceptions (herein so called); or
(ii) terminating this Contract by notice in writing and receiving back the Independent
Consideration, in which latter event Seller and Buyer shall have no further
obligations, one to the other, with respect to the subject matter of this Contract.
3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard
Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy
shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer
has fee simple title to, and can convey, an easement pursuant to the Easement Agreement over and
across the Easement Area, subject only to the Permitted Exceptions. The Title Policy may contain
CONTRACT OF SALE
E.C. Smallwood — City of Lubbock
only the Permitted Exceptions and shall contain no other exceptions to title, with the standard
printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows:
(i) survey exception may be amended to read "shortages in area" only (although
Schedule C of the Title Commitment may condition amendment on the presentation
of an acceptable survey and payment, to be borne solely by Buyer, of any required
additional premium);
(ii) no exception will be permitted for "visible and apparent easements" or words to that
effect;
(iii) no exception will be permitted for "rights of parties in possession";
(iv) no liens will be shown on Schedule B.
Notwithstanding the enumeration of the following exceptions, amendments and/or deletions,
Buyer may object to any Exceptions it deems material, in its sole discretion.
ARTICLE IV
FEASIBILITY REVIEW PERIOD
4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of
Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's
sole and absolute discretion, during the period commencing with the Effective Date of this Contract
and ending ninety (90) calendar days thereafter (the "Absolute Review Period"), based on such tests,
examinations, studies, investigations and inspections of the Easement the Buyer deems necessary
or desirable, including but not limited to studies or inspections to determine the existence of any
environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Easement
suitable for Buyer's purposes. Buyer is granted the right to conduct engineering and/or market and
economic feasibility studies of the Easement, and to conduct a physical inspection of the Easement
Area, including inspections that invade the surface and subsurface of the Easement Area. If Buyer
determines, in its sole judgment, that the Easement Area is not suitable, for any reason, for Buyer's
intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as
soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review
Period, and neither Buyer nor Seller shall have any further duties or obligations hereunder.
ARTICLE V
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and
consummate the sale and purchase of the Easement in accordance with the terms and provisions
herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing
Date, except where specific reference is made to another date, that the Seller has good and
indefeasible fee simple title to the Easement Area, subject only to the Permitted Exceptions.
CONTRACT OF SALE
E.C. Smallwood — City of Lubbock
5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows:
(a) Unless stated otherwise, within ten (10) days after the Effective Date, Seller, at
Buyer's sole cost and expense, shall deliver to Buyer, with respect to the Easement Area, true,
correct, and complete copies or notice of all oral or written leases or agreements and/or occupancy
agreements of any kind or nature relating to the possession of the Easement Area, or any part
thereof, including any and all modifications, supplements, and amendments thereto (the "Leases");
(b) From the Effective Date until the date of Closing or earlier termination of this
Contract, Seller shall not sell, assign, or convey any right, title or interest whatsoever in or to the
Easement Area, or create, or permit to exist, any lien, encumbrance, or charge thereon.
5.03 Survival Beyond Closing. The representations, warranties, covenants and agreements of
Seller and Buyer contained in this Contract shall survive the Closing.
ARTICLE VI
CLOSING
6.01 Date and Place of Closing. The Closing shall take place in the offices of the Title
Company. The Closing Date (herein sometimes called), shall be on the earlier to occur of (i) five
(5) days following the completion of all conditions precedent to Buyer's performance of this
Contract, so long as said date is after the expiration of the Absolute Review Period, unless Buyer
elects, in its sole discretion, to close prior to the expiration of the Absolute Review Period; or (ii)
as mutually agreed on by Seller and Buyer. Unless provided otherwise herein or agreed upon by
Buyer and Seller, Closing shall not be later than fifteen (15) calendar days after the expiration of the
Absolute Review Period.
6.02 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the
Title Company the following items:
(i) The Title Policy in the form specified in Section 3.05;
An Easement Agreement, in the form as attached hereto as Exhibit "A," duly executed by Seller and
acknowledged; and
(b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the
following items:
(i) The sum required by Section 2.01 in the form of certified or cashier's check,
check or other readily available funds;
Both Buyer and Seller shall deliver other items reasonably requested by the Title Company
as administrative requirements for consummating the Closing.
CONTRACT OF SALE
E.C. Smallwood — City of Lubbock
ARTICLE VII
DEFAULTS AND REMEDIES
7.01 Seller's Defaults and Buyer's Remedies.
(a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one
or more of the following events: (i) Any of Seller's warranties or representations contained in this
Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any
covenant, agreement, condition precedent or obligation on Seller's part required within the time
limits and in the manner required in this Contract.
(b) Buyer's Remedies. If 7.01(a) occurs, Buyer may: (i) terminate the Contract and
receive the Independent Consideration as Buyer's sole and exclusive remedy, or (ii) enforce specific
performance.
7.02 Buyer's Default, Seller's Remedies.
(a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at
Closing, the items specified in Section 6.02(b) of this Contract for any reason other than a default
by Seller under this Contract or termination of this Contract pursuant to the terms hereof prior to
Closing.
(b) Seller's Remedies. If 7.02(a) occurs, Seller may: (i) terminate the Contract and retain
the Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific
performance.
7.03 Notice. All notices, demands, requests, and other communications required hereunder shall
be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and
(b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or
certified, return receipt requested, postage prepaid, addressed as follows:
SELLER: E.C. Smallwood
275 North Terry Drive
Slaton, Texas 79364
COPIES TO: For Seller:
Dulan D. Elder
BUYER: Attn: Dave Booher
City of Lubbock
1625 131h Street
Lubbock, Texas 79401
Fax: 806-775-3074
Richards, Elder & Green, L.L.P.
P.O. Box 64657
Lubbock, Texas 79464
Fax: 806-798-8878
Attn: Marsha Reed
City of Lubbock
1625 131h Street
Lubbock, Texas 79401
Fax: 806-775-3074
CONTRACT OF SALE
E.C. Smallwood — City of Lubbock
For Buyer: Zachary Brady
ZS Brady & Co.
3409 191h Street
Lubbock, Texas 79401
Fax: 806-771-3750
The parties may change their address effective in the same manner as other notices provided
hereunder.
ARTICLE VIII
MISCELLANEOUS
8.01 Governing Law and Venue. This Contract is being executed and delivered and is intended
to be performed in the State of Texas, the laws of Texas governing the validity, construction,
enforcement and interpretation of this Contract.
8.02 Entirety and Amendments. This Contract embodies the entire agreement between the
parties and supersedes all prior agreements and understandings, if any, related to the Easement, and
may be amended or supplemented only in writing executed by the party against whom enforcement
is sought.
8.03 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and
Buyer, and their respective heirs, executors, administrators, successors and assigns.
8.04 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause
to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds,
acts, and assurances as are reasonably necessary to consummate the transactions contemplated
hereby.
8.05 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are
incorporated in and made a part of, this Contract for all purposes.
8.06 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is
hereby delegated by the City Council of the City of Lubbock to the Deputy City Manager of Buyer,
or his designee. When the context requires, singular nouns and pronouns include the plural. The
undersigned represent and warrant their respective authority to execute this contract, and to convey
fully, and without reservation or exception, the interest in property described herein.
8.07 Disclosure to Buyer. Seller discloses to Buyer that the property to be affected by the
Easement is currently in CRP under a contract which will expire in 2011 and that the land will be
returned to production for the 2012 crop year. There are currently multiple interconnected wells
located on the property, including at least one well located within the path of the Easement. Seller
intends to operate this property as irrigated farm land beginning in crop year 2012.
CONTRACT OF SALE
E.C. Smallwood — City of Lubbock
8.08 Special Provisions.
(i) In addition to the Purchase Price, Buyer agrees to pay Seller $6,800 as compensation
for damages to wells and appurtenances located within or near the easement being purchased.
(ii) Buyer will repair damage caused by Buyer or its contractors or other agents to
Seller's growing crops, adjoining property, and Irrigation Lines (as that term is defined in the
Easement) during the course of Buyer's exercise of its use of the Easement and Pipeline System
Executed by Seller on the day of December, 2010.
SELLER:
E.C. SMALLWOO
Executed by Buyer on the _15th_ day of December 2010.
CITY OF LUBBOCK
TOM MARTIN, MAYOR
ATTEST:
Reb a Garza, City Secretary
CONTRACT OF SALE
E.C. Smallwood — City of Lubbock
APPROVED AS TO CONTENT:
- 2�L� /jU y
Mars a Reed, P.E., Chief Operati ns Officer
A)
Dave Booher, Right -of -Way Agent
CONTRACT OF SALE
E.C. Smallwood — City of Lubbock
Exhibit "A" to
Contract of Sale
EASEMENT FORM
CONTRACT OF SALE
E.C. Smallwood — City of Lubbock
Exhibit "A" Resolution No. 2010-R0610
EASEMENT
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS, THAT:
COUNTY OF LUBBOCK §
E.C. Smallwood with a street address of 275 N Terry Drive, Slaton, TX 79364 (hereinafter
referred to as the "Grantor" whether one or more) for a valuable consideration, to it paid by The City
of Lubbock, Texas (the "Grantee") with offices at 1625 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 Garza County, Texas:
Pipelines and Equipment
For and in consideration of the terms and conditions hereafter stated, Grantor hereby grants
to Grantee a perpetual exclusive Easement to survey, construct, reconstruct, install, upgrade, operate,
inspect, relocate, replace, repair, and remove (hereinafter called "Permitted Uses"), one pipeline,
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"), through, under, upon, over, across
and within the Lands. Such perpetual exclusive Easement shall be 60 feet wide, as described in
Exhibit A as attached hereto. Further, a temporary construction Easement is hereby granted adjacent
to the perpetual exclusive Easement which shall be an additional 60 feet, as described in Exhibit A
as attached hereto. The temporary Easement shall terminate upon completion of all construction
activities related to that portion of the Pipeline System that requires said temporary Easement as
described in Exhibit B as attached hereto. Exhibit A is attached hereto and incorporated herein, and
hereby made a part hereof by reference to describe the Easement and the Lands.
This Easement is specifically made by Grantor and accepted by Grantee subject to the following
terms, covenants, obligations and conditions:
1. Grantee may use and occupy the Easement for the sole purpose of: (a) the right to
perform Permitted Uses related to the Pipeline System; (b) the right (for men, material, and
equipment) of ingress and egress and regress to and from and access on and along said Easement
granted herein, with the right to ingress and egress and regress to and from and access on and along
said Easement, for the Permitted Uses; and (c) the right to locate the Pipeline System through, over,
under, upon, across and within the Easement for the purpose of water transportation. Grantee shall
use the Easement for the Permitted Uses and Pipeline System and for no other purposes or uses.
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 in Exhibit C attached hereto or as otherwise provided herein, 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 a necessary part of Grantee's water supply. Any such notice of
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.
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 Land is currently enrolled in CRP under a contract which will expire in 2012,
at which time the land will be returned to cultivation as irrigated farmland, watered by wells located
upon Grantor's Lands. The Pipeline System shall be buried so that the highest point of the pipeline
is buried at a minimum of four feet (4') below the surface to allow for 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 the property is CRP grassland at the time the Pipeline System is installed, Grantee
shall apply grass seed of a variety acceptable under relevant CRP program requirements.
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. Without limiting
the generality of the foregoing, Grantor specifically reserves the right to install underground
irrigation tape or water lines ("Irrigation Lines")above the Pipeline System for the purpose of either
irrigating through a drip system or to interconnect wells and feed a center pivot irrigation system.
These facilities as subsequently installed are agreed to be deemed to constitute a prior and superior
use to the Pipeline System. 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 (other than the permitted irrigation equipment) without the advance written
permission of Grantee. Grantor, upon request from Grantee, agrees to rotate any pivot system off
the Easement portion in order to afford access to the City for needed repairs/maintenance.
10. The grant of the Easement to Grantee as provided for by this instrument is subject
to contractual obligations of Grantee, throughout the term of this Easement, to either repair and
replace, at its sole cost and expense, or to compensate Grantor for damages incurred by Grantor or
its successors and assigns, due to a breach by Grantee or its contractors of any of the following
obligations:
(a) to maintain during construction and rebuild after construction a levee running
along the North side (bounded by CR 160) of Grantor's property which is
necessary to avoid flooding from adjacent property; and
(b) other obligations imposed upon Grantee by the terms of this Agreement or
the Contract for Purchase of Easement entered into by and between Grantor
and Grantee.
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 No. 3, the title and
interest herei . granted shall end, cease, and terminate, and title to the Easement, pipeline, equipment
and facilities shall revert to the then owner of the Lands.
12. The grant of Easement herein contained is subject to all valid and subsisting
easements, leases including oil, gas and wind energy leases, and rights -of -way of record affecting
the Lands.
13. It is a condition precedent to the payment to the Grantor of the sum named herein that
the title to the Lands described herein shall be vested in the Grantor, subject only to the interest of
Grantee hereunder and to the matters set out in Paragraph No. 12 hereof and to such other defects,
interests, or encumbrances as may be waived in writing by Grantee. Grantor shall provide to Grantee
an executed release from any lien holder, tenant, lessee, or other party having an interest in the
Easement prior to payment of the compensation called for in Paragraph No. 16 hereof.
14. Grantor shall procure and have recorded without cost to Grantee all assurances of title
and affidavits which the Grantor may be advised by Grantee are necessary and proper to show in
Grantor title sufficient to grant the above easement free and clear of encumbrances other than those
encumbrances expressly defined herein. Abstracts or certificates of title or title insurance may be
procured by the Grantee at its expense. The expense of recording this Easement shall be borne by
Grantee. Grantor agrees to cooperate and aid Grantee, if necessary, to obtain any curative documents
needed.
15. If Grantee, in its sole discretion, determines that the Easement conveyed to Grantee
and described herein should be acquired by judicial procedure, either to procure a safe title or for
any other reason, then Grantor and Grantee hereby stipulate that the ultimate award to the Grantor
for the Easement conveyed to Grantee and described herein, shall be the same as the purchase price
hereinafter stated in Paragraph No. 16, coupled with the contractual obligations imposed upon
Grantee by this Agreement and the Contract for Purchase of Easement, in addition to the payment
of such purchase price, as herein provided, but should the Grantor own a lesser interest than that
Easement conveyed to Grantee and described herein, such award shall not exceed that portion of the
purchase price stated in Paragraph No. 16 which the value of such lesser easement conveyed to
Grantee bears to the value of the entire Easement described herein.
16. As 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 TEN
THOUSAND FIVE HUNDRED NINENTY-SEVEN AND 80/100 DOLLARS ($10,597.80).
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.
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 parry'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 or 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 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 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 Use 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. Notwithstanding the foregoing, Grantee agrees that Grantor
may cultivate and harvest crops upon the Easement, may have a circle pivot system which passes
over the Easement, may install drip irrigation tape below the surface of the Easement for the purpose
of watering crops growing upon the Easement, and may cross Grantee's Pipeline System with a
pipeline for the purpose of connecting its wells and irrigating it property over which the Easement
passes, provided its Irrigation Lines have a minimum separation of two feet (2) from the pipeline.
28. 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:
i) Grantor reserves and excepts from this easement and retains for itself, its
successors and its successors -in -interest, all oil, gas and mineral rights held
by Grantor, including but not limited to 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.
29. 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.
30. Limitations on Facilities. Attached hereto as Exhibit "E", and incorporated herein
for all purposes, are the construction plans for the segment of the Pipeline System affecting the
Lands of Grantor (the "Plans"). The Plans identify all above -ground facilities (or other facilities
which would impact Grantor's ability to farm the Lands encompassed by the Easement) which are
to be placed by Grantee upon Grantor's Lands during the initial construction, comprised of an Air
Release Valve to be located at station 644+85 on the perimeter of Grantor's Lands. In addition,
Grantee will be relocating an existing AN riser, as noted on the Plans, to facilitate installation of
the Pipeline System. It is Grantee's present intention to install no additional appurtenances within
the Easement property which would affect Grantor's farming operations; however, it is
acknowledged that subsequent regulations, prudent operational practices, or other matters not
currently known nor contemplated by Grantee, may compel Grantee to perform modifications to the
Pipeline System. If Grantee (i) is required by statute, rule or regulation to install additional
appurtenances on the Easement Property which are above ground or above plow depth; or (ii) in its
sole discretion, determines that additional appurtenances which are above -ground or above plow
depth are necessary to ensure the performance of the Pipeline System, then Grantee shall notify
Grantor in writing of the necessary modifications and consult with Grantee on the placement of any
such appurtenances within the Easement property. Grantee agrees to make such modifications upon
adjoining property where feasible and if such modifications are placed on the Easement property,
to place such appurtenances upon the perimeter of Grantor's Lands, where feasible, and Grantee
further agrees to utilize available technologies to insure that any interference with Grantor's ability
to farm the Easement property, including the use of Grantor's irrigation system then in use, are
obviated, if possible, and minimized if such interference cannot be avoided.
31. Preservation of Topsoil. It is understood and agreed that during initial construction
the trenching shall be double -ditching done in such a manner so that the top twelve (12) inches of
soil will be separated from the balance of the dirt removed in making the ditch or trench for
installation of the pipeline. In backfilling, after installation of the line, the topsoil first removed shall
be used as cover soil in such a manner so as to result in it being returned to the top of the ditch as
topsoil.
32. Post Construction Requirements. Grantee agrees to return the land, as nearly as is
practical, to the original condition such that the post pipeline construction and installation shall not
cause the Grantor to incur additional costs to perform the same efforts and realize results on the
lands as previously experienced. Specific to the production of any crop on the property, it is
anticipated that during construction subsurface rock may be unearthed and deposited on the surface.
It is agreed that Grantee shall ensure that all rocks larger than four inches (4") in diameter located
at the surface at completion of construcion or any repair or replacement work, shall be removed.
Further, the levee running along the North line of Grantor's property will be restored to its original
condition.
33. Equipment Removal After Construction. Grantee agrees to remove from Grantor's
premises all construction equipment within forty five (45) days after completion of construction of
the Pipeline System across Grantor's Lands.
34. Non -Exclusive Easement/Purpose. Grantor retains the exclusive right to grant
easements to third parties, and that the easement can not be used for any other purpose than the
installation and maintenance of a pipeline and all useful or necessary appurtenances thereto to
transport water across the property.
35. Blasting/Construction Practices. In order to lessen the possibility of damaging
Grantor's wells, Grantee agrees that it will not use any explosive devices during the construction
of the Pipeline System except as a last resort. If blasting is required, Grantee agrees to give Grantor
advance notice before conducting any blasting and shall give Grantor the opportunity to be present,
at a safe distance, when the blasting occurs.
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]
EXECUTED this day of , 2010 ('Effective Date").
GRANTOR:
E.C. Smallwood
GRANTEE:
The City of Lubbock
By:
Name:
Title:
[Acknowledgments of the Parties on Next Page]
APPROVED AS TO CONTENT:
Marsha Reed, P.E.
Chief Operations Officer
APPROVED AS TO FORM:
Terry Grantham
Attorney
STATE OF TEXAS §
COUNTY OF LUBBOCK §
This instrument was acknowledged before me on 2010, by E.C.
Smallwood.
Notary Public, State of Texas
Printed Name of Notary
My commission expires:
Exhibits: "A" -
Centerline Metes and Bounds Description of Pipeline System
"B" -
Survey Plat(s) of Centerline of Pipeline System
"C" -
Pipeline Right -Of -Way Safety Guidelines
"D" -
Gate Construction Detail and Specifications
"E" -
Construction Plans
Exhibit A
Metes and Bounds Description of the Perpetual Exclusive Easement and
The Temporary Easement
Resolution No. 2010—RO610
EXHIBIT 'Ar
Page 1 of 2
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At Not things Lind Laatings shown are project coordinates
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adjustment factor of 1.0002 96 C 1 NTr PARKHIIL SMITH a
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EXHIBIT "A'
Page 2 of 2
PARCEL NO.33
E.C. SMALLWOOD
Field Notes describing the centerline of a Sixty -Fact (60') wide permanent pipeline easement being
located In the Northwest Quarter of Section 1247, B.S. & F. Survey, Garza County, Texas and said
pipeline centerline being described as follows:
Beginning at a 1h' Iron rod with cap, set on the East line of the Northwest Quarter of Section 1247,
for the beginning of this description, horn whence a 811x8" Concrete monument found br the Northeast
comer of the Northwest Quarter of said Section 1247, bears North 1-S6'56" East, a distance of
1092.54, said point of beginning having a project coordinate of Y = 7175743.71 and X - 1043136.84;
Thence North 56°55'03" West, along the centerline of Wd Sixty -Foot (601 wide permanent pipeline
easement, a distance of 2057.29 feet to a 1h' Iron rod with cap, set on the South right of way line of a
sixty -foot county road, for the end of this description, whence a 4"x4" concrete monument found for
the Northwest comer of Section 1247, bears North 1657'53" East, a distance of 30.00 feet and North
88000149" West, a distance of 879.69 feet.
Containing 124.68 rods. (2.83 acres)
The above described sixty foot (60').wide permanent pipeline easement Is also subject to a sixty foot
(601 wide temporary construction easement being parallel and adjacent to said permanent pipeline
easement, located and shown on the accompanying, survey plat and sold temporary construction
.easement contains US 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 accompanfes 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
Registered P essional Land Surveyor
Date:
44
HIGH-TECH LAND AND GPS SUR VEYORS, INC.
3330 70th St., Suite 202 - Lubbock. Texas 79413
(" 799-0020 - Fax (806) 792-1646