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HomeMy WebLinkAboutResolution - 2010-R0047 - Easement For ONEOK Westex Transmission, LLC For Gas Pipeline At Lubbock Airport - 01/28/2010Resolution No. 2010-R0047 January 28, 2010 Item No. 5.28 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, an Agreement Permitting a Limited Encroachment on Easement and a Relocation Agreement for the Runway 8/26 Improvements Project -Phase I, to facilitate the use of an easement for the expansion of Runway 8!26 at the Lubbock Preston Smith International Airport by and between the City of Lubbock and ONEOK WesTex Transmission, L.L.C., of Tulsa, Oklahoma, and related documents. Said Agreements are attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 28th ATTEST: Rebecca Wrza, City Secretary APPROVED AS TO CONTENT: day of January ------,2010. TOM MARTIN, MAYOR Loomis, Assistant City Manager/Director of Aviation APPROVED AS TO FORM: vw:ccdocs:`RES.Agreement-ONEOK WesTex Transmission, LLC December 15, 2009 Resolution No. 2010-R0047 RELOCATION AGREEMENT THIS AGREEMENT is entered into this 28th day of January , 2010, by and among ONEOK WESTEX TRANSMISSION, L.L.C., a Delaware limited liability company ("ONEOK") and CITY OF LUBBOCK, a Texas home rule municipal corporation ("Owner"). WHEREAS, ONEOK is successor in interest to those certain Right of Way Easements (collectively the "Easements") described as follows, to wit: (i) Right of Way Easement dated January 19, 1968, filed January 30, 1968 and recorded in Volume 1154 at Page 580, given by I.A.L. Cone in favor of Pioneer Natural Gas Company; (ii) Right of Way Easement dated April 5, 1968, filed April 23, 1968 and recorded in Volume 1164 at Page 268, given by Marie L. Abell Butler in favor of Pioneer Natural Gas Company; and (iii) Right of Way Easement dated April 8, 1968, filed April 26, 1968 and recorded in Volume 1164 at Page 526, given by Mercantile -Safe Deposit and Trust Company as Trustee for the Estate of Arunah S. Abell, III in favor of Pioneer Natural Gas Company; whereby ONEOK is entitled to construct, maintain and operate pipelines and appurtenances thereto, over and under the following described property situated in Lubbock County, State of Texas (the `Basement Area"): Section 43, Block A, said right-of-way is further described by centerline as follows: Beginning at a point in the North line of said Section 43, said point being 65 feet east of the NW corner of said Section 43; thence South, parallel with west line of said Section 43, to a point in the south line of said Section 43. WHEREAS, ONEOK is operating a twenty inch gas transmission (the "Pipeline") under the Easement Area; and WHEREAS, Owner owns and operates an airport on and around the Easement Area and in connection therewith, intends to engage in certain construction which construction would require the relocation of the Pipeline within the Easement Area; and {826155;7} WHEREAS, ONEOK, has agreed to such relocation provided that Owner shall pay the costs of such relocation. NOW, THEREFORE, in consideration of the premises and of the terms, covenants and conditions hereinafter set forth, it is agreed by and among the parties hereto as follows: 1. Subject to the terms set out in this Agreement, ONEOK (or a subcontractor of ONEOK) agrees to relocate the Pipeline within the Easement Area as depicted on Exhibit "A" attached hereto and made a part hereof (the "Relocation"). ONEOK's estimated cost to accomplish such relocation is $1,180,300.00 and the work to be performed in order to accomplish the Relocation is generally shown on the Scope of Work attached hereto as Exhibit 2. ONEOK acknowledges that the Relocation shall be within the scope of the construction agreement between Owner and North Texas Contracting (the "Contractor"), and as such, ONEOK shall enter into a subcontract with Contractor, upon such terms and conditions as may be acceptable to ONEOK and Owner, to complete the Relocation. ONEOK acknowledges that the Contractor shall be responsible for the overall project, including coordination of the work between ONEOK and other subcontractors, coordination of progress payments, quality control and other related tasks and as such, ONEOK shall seek payment through the Contractor, provided ONEOK shall be paid monthly, within sixty (60) days following the delivery of an invoice, based on the cost of work completed and the materials delivered to and stored on site. ONEOK shall submit to the Contractor at the end of each month a written itemization of the work completed and the invoices for material on hand. After the Contractor's invoice is reviewed and approved for payment by the Owner, payment will be made to the Contractor. The Contractor will then make payment to ONEOK. {826155;7} 2 3. In the event the actual cost of the Relocation exceeds or is less than the estimate provided above, upon completion of the Relocation, Owner will authorize a change order to reflect the final actual costs, it being the intent of the parties that ONEOK shall be reimbursed for the full actual cost of the Relocation. 4. Concurrently with this execution hereof and as a condition hereof, Owner and ONEOK shall make, execute and enter into an Encroachment Agreement in the form as shown on Exhibit "C" attached hereto and made a part hereof thereby granting Owner the right to encroach over and across a portion of the Easement Area for purposes of a runway, taxiway, perimeter road, and perimeter fence such encroachment to be subject to the terms and conditions of such Encroachment Agreement. 5. This Agreement is not intended and shall not be construed to create the relationship of agent, servant, employee, partnership, joint venture or association as between ONEOK, OWNER and/or Contractor nor between any officer, employee, contractor or representative of ONEOK, OWNER and/or Contractor. No joint employment is intended or created by this Agreement for any purpose. ONEOK and OWNER agree to so inform their respective employees, agents, contractors and subcontractors, who are involved in the implementation of or construction under this Agreement. 6. If any party defaults in the performance of any provision contained herein, the non -defaulting party shall have all remedies available at law or equity, including, without limitation, the remedy of specific performance, to the extent available. No remedy shall exclude any other remedy. All remedies shall be cumulative. 7. Owner hereby represents and warrants to ONEOK that (1) Owner is a municipal corporation and that it is duly organized, validly existing and in good standing under the laws of {826155;7} 3 the State of Texas; (ii) Owner has full power and authority to sign and perform under this Agreement; (iii) Owner has obtained any and all necessary consents and approvals of all requisite parties to sign and perform under this Agreement, and (iv) this Agreement constitutes the valid, legal, and binding obligation of the Owner enforceable against the Owner in accordance with its terms. 8. All notices and communications required or permitted to be given hereunder shall be in writing and mailed by certified or registered mail, postage prepaid, or by Federal Express, Airborne Express, or similar overnight delivery service, addressed as follows: If to ONEOK: ONEOK WesTex Transmission, LLC Attn: Right of Way Department 100 West Fifth Street ONEOK Plaza Tulsa, OK 74103 With a copy to: Elizabeth R. Muratet GableGotwals Counsel 100 West Fifth Street 1100 ONEOK Plaza Tulsa, OK 74103 If to PERMITTEE: Director of Aviation 5401 N MLK Blvd., Unit 389 Lubbock, Texas 79403 Notice shall be deemed to have been given upon receipt or refusal. 9. This Agreement shall be construed under the laws of the State of Texas. 10. This Agreement constitutes the entire agreement between the parties hereto. {826155;7} 4 11. This Agreement may be executed in counterparts, each of which for all purposes shall be deemed an original, and all of which shall constitute collectively one agreement. 12. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. ONEOK WESTEX TRANSMISSION LLC, a Delaware limited liability company By: Name: 9:. 2 L d h ' Title: 5e V N 6vt' P IWJ is CITY OF LUBBOCK, TEXAS Tom Martin, Mayor ATTEST: C:�R Beck Garza, City Secretary APPROVED AS TO CONTiT: James // Loomis, Assistant City Manager Tr;Wbortation & Public Works APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney {826155;7} £SIT ®\A- Remi £;on § ■ . §■|s■|§ § ® § 2 � $ I$| | §2 § m |}} § §$ | � � � ■ � � � d § § � § � No. 2010 -§OO 7 Resolution No. 2010-R0047 EXHIBIT "B" Job Scope Lubbock Airport 20" Pipeline Replacement — Line 256-000 Construction Work to be Performed by Contractor: Perform one -calls and expose cross -lines and cables. Known cross -lines include two groups of 1 - 16", 1 — 6", and 2 — 3" pipelines. Known cables include two electrical cables. 2. Clear pipeline right-of-way within the pipeline replacement area as shown on Drawing ALT3-101 Alternate 3 Oneok Gas Line Relocation; remove and dispose of brush and debris as needed; 60 ft. construction width. 3. Unload and string approximately 2,200 ft of pipe on ROW off vendor's trucks. 4. Weld up approximately 2,000 ft. of 20" * .500" WT, X65, FBE coated pipe as shown on Drawing ALT3-101 Alternate 3 Oneok Gas Line Relocation per attached Welding Procedure TU -5. X-ray will be 100% and will be provided by Oneok. 5. Weld up approximately 200 ft. of 20" * .375" WT, X60, FBE coated pipe per attached Welding Procedure TU -4; this pipe will be utilized for tie-ins at a later date. 6. Excavate ditch for new pipe to provide minimum depths of cover as shown on Drawing ALT3-101 Alternate 3 Oneok Gas Line Relocation; double ditching required. 7. Install two part epoxy provided by Oneok on all field joints and fittings. 8. Inspect pipe using holiday detector and repair all holidays and coating flaws with two part epoxy provided by Oneok. 9. Install approximately 2,000 ft. of 20" * .500" WT, X65, FBE coated pipe as shown on Drawing ALT3-101 Alternate 3 Oneok Gas Line Relocation. Ends of pipe should be outside airport fence to allow for tie-ins at a later date without disturbing airport fence. Pad dirt to be utilized approximately 1 ft below and 2 ft above new pipe. 10. Provide and Install Weld Caps for Pressure Test. 11. Hydrostatic test new pipe for 8 hrs; minimum test pressure 1800 psig; maximum test pressure 2000 psig. Provide all equipment and fittings for pressure test. Provide and properly dispose of hydrostatic test water; provide documentation that hydrostatic test water is disposed properly. Water will not be dumped at job site. {826155;7} 12. Dry new pipe by running several foam and 1 or swab pigs with dried air or Nitrogen, then by purging with dried air or Nitrogen until pipeline is dried to a level not to exceed 12 pounds of water vapor per MMCF (Dew Point of -40 degrees F), then pressure pipeline with Nitrogen to approximately 10 psig. 13. Backfill new pipeline in approximate 6" lifts in areas of proposed pavement which includes proposed runway and perimeter roads. Backfill in approximate 12" lifts in all other areas. All areas will require 95% compaction and testing will be provided by airport personnel or their representatives. 14. Install 6" thick layer of concrete approximately 6' above top of new pipeline, except top of concrete shall always be at least 2' below surface. 15. Existing perimeter roads can be open cut; replace asphalt to as near original condition as practical. 16. Restore Right of Way to as near original condition as practical. 17. Cut approximately 200 ft. of 20" * .375" WT, X60, FBE coated pipe that will be utilized for tie-ins at a later date into 40 ft joints and haul this pipe and any extra pipe to Oneok's yard at 4002 MLK Jr. Blvd., Lubbock, Texas. Unload pipe on pipe racks at this location. All work performed will be per ONEOK's existing construction specifications. The existing contracts between ONEOK WesTex Transmission L.P. and the Contractor will be utilized via a Job Release. If existing contracts are not in place, then a contract will be prepared and executed by both parties prior to the commencement of any work. (826155.7: EXHIBIT "C" Resolution No. 2010-R0047 When Recorded, Return To: ONEOK WesTex Transmission, L.L.C. Attn: Right of Way Dept. P.O. Box 871 Tulsa, OK. 74102 AGREEMENT PERMITTING A LIMITED ENCROACHMENT ON EASEMENT This AGREEMENT PERMITTING A LIMITED ENCROACHMENT ON EASEMENT ("Agreement") is entered into this day of , 2010, by and between ONEOK WesTex Transmission, L.L.C., a Delaware limited liability company (hereinafter referred to as "ONEOK") and CITY OF LUBBOCK, a Texas home rule municipal corporation (hereinafter referred to as "Permittee, whether one or more). Collectively, ONEOK and Permittee may be referred to herein as a "Party" or collectively as the "Parties". WHEREAS, by a certain Right of Way Agreement (the "Easement"), ONEOK owns an easement within which it has constructed and maintains a natural gas transmission pipeline and associated facilities (collectively the "ONEOK Facilities") over, upon, across and throughout that certain real property described on Exhibit "A" attached hereto and made a part hereof. WHEREAS, Permittee operates an airport and desires to cross such facilities with an airport runway, taxiway, perimeter road and perimeter fence all as more fully described in Exhibit "B" attached hereto and made a part hereof (collectively referred to herein as the "Encroachment"). WHEREAS, the Parties desire to set forth their mutual rights and obligations with respect to the Easement and Encroachment; NOW THEREFORE, ONEOK agrees to grant Permittee a limited right to encroach upon the Easement, subject to the terms and conditions set forth herein; and Permittee, in consideration of this limited right of Encroachment, agree to the following covenants and obligations set forth herein: 1. Permittee specifically acknowledges ONEOK's need for access to its facilities and recognizes its rights under the Easement area, which are to remain in full force and effect notwithstanding this Agreement, except that ONEOK has no right or privilege to occupy, use or enter upon the surface of any runway or taxiway located in the Easement except in the event of an "Emergency" as defined herein. Any non -emergency maintenance or repair of ONEOK's Facilities must be done by boring or other non-destructive method in a good and workmanlike manner, to be approved by Permittee, such approval not to be unreasonably conditioned, withheld or delayed, so as not to cause use, entry upon, interference or damage to any runway, taxiway, roadway or fencing. Permittee shall approve or disapprove the plans for such non- emergency repair or maintenance within ten (10) business days after receiving same by providing written notice to ONEOK. If Permittee disapproves the plans, Permittee's notice must {826157;8} include the reason(s) for such disapproval. If Permitee fails to approve or disapprove the plans in the manner set forth above prior to the end of such period, Permitee will be deemed to have approved such plans. For purposes of this Agreement, an "Emergency" shall mean an event or repair requiring in the reasonable judgment of ONEOK the complete shut down of ONEOK's facilities. In the event of an Emergency, the following procedures shall be followed: (i). ONEOK shall immediately notify (by telephone) the Permittee's Director of Aviation's Office at 806-775-2044 of a need for access to the Encroachment Area, as defined below, that is otherwise restricted under the terms and conditions of this Agreement. (ii) Upon actual receipt of the notification, the Permittee shall immediately coordinate with ONEOK to allow ONEOK the access it needs in order to make the repairs to remedy the Emergency, including access to otherwise restricted areas, if such access is necessary for ONEOK to remedy the Emergency. Permittee and ONEOK shall at all times comply with Federal Aviation Administration rules, regulations and procedures and other applicable law. As consideration for this Agreement, any cost to Permittee or damage to the area of the Encroachment (the "Encroachment Area") resulting from ONEOK's need to maintain, operate or repair its facilities, including, but not limited to, costs for the maintenance, replacement or repair of encroachments, whether as a result of an Emergency or otherwise, will be the sole responsibility of Permittee and ONEOK will not, under any circumstances, be responsible for loss or damage to the Encroachment Area. Further, in the event the cost to maintain or repair ONEOK's Facilities located under the Encroachment Area is in excess of normal and customary maintenance costs as a result of the encroachment by Permittee, then in that event, within thirty (30) days following written demand, Permittee shall pay to ONEOK the incremental difference between the normal and customary costs of maintenance and repair without the existence of the Encroachment and the actual costs of repair as a result of the Encroachment. In order to accommodate the boring requirements contemplated by this Agreement in order to make repairs to the ONEOK Facilities as permitted under the terms of this Agreement in a non -emergency basis, upon written request by ONEOK, Permitee shall allow ONEOK reasonable access to an additional working area beyond the Easement, on a temporary basis, sufficient to allow ample room for such boring activity in the most efficient and economic manner possible. 2. Permittee will furnish, or cause to be furnished to ONEOK, detailed plans, including a certified survey, for the construction of the Encroachment upon or under the Easement. Such plans must be furnished in advance of any proposed construction to allow ONEOK time to review and approve Permittee's proposal, such approval not to unreasonably be withheld. The plans, if approved by ONEOK, shall be deemed incorporated herein by reference and made a part of this Agreement. Permittee agrees that any review or approval by ONEOK of any plans and/or specifications relating to the Encroachment or the identity of any contractors, subcontractors and materialmen is solely for ONEOK's benefit, and without any representation or warranty whatsoever to Permittee with respect to the adequacy, correctness or efficiency thereof or otherwise and it is understood that such ONEOK's approval does not absolve Permittee of any liability hereunder. Further, Permittee, in connection with the construction, {826157;8} 2 maintenance and/or removal of the Encroachment, agrees to observe and fully comply with all laws, rules and regulations of the United States, the State of Texas, and all agencies and political subdivisions thereof. 3. This Agreement shall be revocable by ONEOK in the event of (a) Permittee's failure to construct the improvements for which this encroachment is intended; or (b) cessation of the use of the improvements for which this encroachment is intended for a period in excess of one year. 4. The ground cover over ONEOK's facilities in the Easement shall be kept at minimum footage as set forth on the profile attached hereto as Exhibit "C" and made a part hereof during and following the construction of the Encroachment. Adjustments to the minimum ground cover may be made as required by applicable industry standards upon the agreement of both parties. After completion of the Encroachment, Permittee will restore, at its own cost and expense, the surface of the land, as nearly as reasonably possible to its condition prior to Permittee's construction. 5. Permittee shall, immediately upon demand, compensate ONEOK for any repairs or damages to ONEOK's facilities resulting from the acts of Permittee or its employees, contractors, agents, or any persons acting for or under Permittee's authority or direction. 6. Permittee also agrees to pay during construction of the Encroachment, for any cathodic protection test leads ONEOK may, at its sole discretion, install on its facilities, so that ONEOK can monitor any possible interference with its facilities that may result from the Encroachment. 7. Indemnity and Hold Harmless. (A) TO THE FULLEST EXTENT PERMITTED BY LAW, PERMITTEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS ONEOK AND ONEOK'S AFFILIATED COMPANIES, PARTNERS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION) (COLLECTIVELY, "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (I) PERMITTEE'S OCCUPATION AND USE OF THE EASEMENT AREA; (II) CONSTRUCTION, USE, STATE OF REPAIR OR PRESENCE OF THE ENCROACHMENT; OR (III) ANY ACT OR OMISSION OF PERMITTEE OR PERMITTEE'S OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. (826157;8} 3 (B) PERMITTEE ACKNOWLEDGES THAT HAVING THE ENCROACHMENT ON THE EASEMENT PROVIDES SOME RISK THAT THE ENCROACHMENT MAY BE DAMAGED IN THE COURSE OF ONEOWS OPERATIONS OR ACTIVITIES AS PROVIDED IN THIS AGREEMENT. THEREFORE, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, PERMITTEE RELEASES THE INDEMNITEES FROM ANY LOSS, DAMAGE AND/OR CLAIM FROM LOSS OR DAMAGE TO THEIR PROPERTY, INCLUDING THE ENCROACHMENT, THAT PERMITTEE MAY HAVE AGAINST THE INDEMNITEES RESULTING FROM THE ACTIVITIES OF ONEOK IN THE ORDINARY COURSE OF ITS OPERATIONS AS PROVIDED HEREIN, EVEN IF SUCH LOSS, DAMAGE OR CLAIM IS CAUSED BY THE NEGLIGENCE OF ANY INDEMNITEE; PROVIDED THAT SUCH RELEASE SHALL NOT APPLY TO ANY LOSS, DAMAGE OR CLAIM WHOLLY CAUSED BY THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. 8. At all times from the date of this Agreement, ONEOK shall maintain in force, at its sole cost and expense, the minimum insurance as set forth below, in such form and from such companies as meet the Insurance Standard defined below. All of such insurance to be in such form and with such companies having a Best's Key Rating Guide rating not lower than A- (VIII) or corresponding rating from another widely recognized rating organization if the insurer is not rated by Best's (the "Insurance Standard"). {826157;8} 4 Each Occurrence Annual Aggregate Limit (unless Limit otherwise specified below) Commercial Bodily Injury and Property $1,000,000 $2,000,000 General Liability Damage Combined Automobile Bodily Injury and Property $1,000,000 N/A Liability Damage Combined (each accident) Workers' Each Accident Statutory N/A Compensation Employer's Each Accident $1,000,000 N/A Liability Disease —per person $1,000,000 $1,000,000 {826157;8} 4 Umbrella Liability Combined single limit in $4,000,000 $4,000,000 excess of the Commercial Limit (unless Limit General Liability, otherwise specified Automobile Liability and below) Airport Liability Employers Liability $5,000,000 $5,000,000 coverage At all times from the date of this Agreement, Permitee shall maintain in force, at its sole cost and expense, the minimum insurance as set forth below, in such form and from such companies as meet the Insurance Standard as defined above. (a) Commercial Automobile Liability insurance must cover owned, hired and non - owned vehicles. If any of ONEOK's or Permittee's vehicles are carrying or capable of carrying any petroleum products (other than fuel necessary to operate the vehicle), chemical products, waste materials (hazardous, toxic or otherwise), coverage must include sudden and accidental pollution and if required by any governmental authority, must have an MCS -90 Endorsement attached. (b) Commercial General Liability Insurance and/or Airport Liability whichever is required must include premises and operations, personal injury, broad form contractual, broad form property damage, products and completed operations; contractor's protective liability, sudden and accidental pollution coverage and rigger's liability insurance if ONEOK or Permittee will be using crane or other mechanical device for lifting/hoisting. Prohibited Exclusions: General liability insurance must not exclude liability for: (i) injury to or destruction of wires, conduits, pipes, mains, sewers, or other similar property, or any apparatus in connection with {826157;8} 5 Each Occurrence Annual Aggregate Limit (unless Limit otherwise specified below) Airport Liability Bodily Injury and Property $5,000,000 $5,000,000 Damage Combined Automobile Bodily Injury and Property $1,000,000 N/A Liability Damage Combined (each accident) Workers' Each Accident Statutory N/A Compensation Employer's Each Accident $1,000,000 N/A Liability Disease —per person $1,000,000 $1,000,000 (a) Commercial Automobile Liability insurance must cover owned, hired and non - owned vehicles. If any of ONEOK's or Permittee's vehicles are carrying or capable of carrying any petroleum products (other than fuel necessary to operate the vehicle), chemical products, waste materials (hazardous, toxic or otherwise), coverage must include sudden and accidental pollution and if required by any governmental authority, must have an MCS -90 Endorsement attached. (b) Commercial General Liability Insurance and/or Airport Liability whichever is required must include premises and operations, personal injury, broad form contractual, broad form property damage, products and completed operations; contractor's protective liability, sudden and accidental pollution coverage and rigger's liability insurance if ONEOK or Permittee will be using crane or other mechanical device for lifting/hoisting. Prohibited Exclusions: General liability insurance must not exclude liability for: (i) injury to or destruction of wires, conduits, pipes, mains, sewers, or other similar property, or any apparatus in connection with {826157;8} 5 them, below the surface of the ground, (ii) injury to or destruction of any property arising out of blasting or explosion; (iii) Care, Custody and Control; (iv) sudden and accidental pollution; (v) explosion, collapse and underground (x,c,u). (c) Worker's compensation and employer's liability insurance must be in full compliance with the laws of the state(s) in which the work is to be performed. (d) Commercial Umbrella/Excess Liability: Insurance shall be at minimum "following form excess" of primary coverages in notes (a), (b) and (c) above. (e) Waiver of Subrogation and Subcontractor Insurance: ONEOK and Permittee agrees to waive all rights of subrogation against the other party, including any and all such rights of ONEOK's and/or Permittee's insurer(s). The effect of such waivers is not limited to the amount of insurance actually carried or required to be carried or to the actual proceeds received. (f) Any contractors or subcontractors hired by ONEOK and/or Permittee and entering upon or providing any services to ONEOK or Permittee within the Easement Area shall also obtain and maintain insurances coverages meeting the requirements of this Agreement. Any deficiencies in the coverage, policy limits or endorsements of contractor or subcontractors shall be the sole responsibility of ONEOK or Permittee, as applicable. (g) Notice of Cancellation/Non Renewal/Modification: If the above coverages are canceled, non -renewed or materially changed in any manner, each party shall give no less than thirty (30) days prior written notice to the other party at the address specified in the Agreement. ONEOK or Permittee, as the case may be, must replace insurance coverage of any canceled, non - renewed or materially modified policies to the other party's satisfaction prior to the effective date of any such policy cancellation, non -renewal or modification. (h) Primary and Non Contributory: ONEOK's and Permittee's insurances shall be primary and non contributory as respects other insurance or self insurance available to ONEOK and/or Permittee. (i) Certificate Holder and Additional Insured. Each Party must show that the other Party is an additional insured on their respective policies. 9. It is understood and agreed any and all prior rights and privileges granted to ONEOK under the Easement shall remain in full force and effect. 10. Permittee shall notify or cause ONEOK to be notified, at least forty-eight (48) hours prior to the performance of any work upon or around the Encroachment Area. PERMITTEE COVENANTS AND AGREES TO NOTIFY OR CAUSE ITS REPRESENTATIVE TO NOTIFY THE APPROPRIATE STATE ONE -CALL CENTER AS REQUIRED BY LAW NO LESS THAN FORTY-EIGHT (48) HOURS PRIOR TO THE COMMENCEMENT OF EXCAVATION IN OR NEAR THE EASEMENT. ONEOK shall have the absolute right, subject to the limitations on ONEOK's use of the surface as set forth in paragraph 1 above, to perform any work upon the Easement it deems necessary for the (826157;8) 6 maintenance or operation of its facilities upon giving forty-eight (48) hours prior notice to Permittee, except in the case of an Emergency, in which ONEOK shall provide notice to Permittee as required by paragraph 1 of this Agreement. Any such work must be accomplished as required by paragraph 1. 11. Permittee hereby represents and warrants to ONEOK that (i) Permittee is a municipal CORPORATION and that it is duly organized, validly existing and in good standing under the laws of the state of Texas; (ii) Permittee has full power and authority to sign and perform under this Agreement; (iii) Permittee has obtained any and all necessary consents and approvals of all requisite parties to sign and perform under this Agreement, and (iv) this Agreement constitutes the valid, legal, and binding obligation of the Permittee enforceable against the Permittee in accordance with its terms. The agreements and conditions herein shall constitute covenants running with the land and shall be binding UPON and inure to the benefit of the Parties, their personal representatives, heirs, successors and assigns. PERMITTEE COVENANTS AND AGREES THAT IT SHALL PROVIDE ACTUAL NOTICE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND OF ONEOK'S EASEMENT RIGHTS TO ALL TRANSFEREES OF ALL OR ANY PART OF PERMITTEE'S INTEREST IN THIS PROPERTY. 13. In the event either parry breaches the terms, covenants or conditions of this Agreement and the other party commences litigation to enforce any provision of this Agreement, the prevailing party shall be entitled to the recovery of attorney's fees and costs. 14. PERMITTEE AGREES TO THE PROTECTION OF PIPELINES AND EASEMENTS DOCUMENT ATTACHED AS EXHIBIT "D". UNLESS SPECIFICALLY APPROVED, TO THE EXTENT THAT ANY OF THE REQUIREMENTS SET FORTH In Exhibit "D" conflict with or are more stringent than the requirements set forth above, the requirements set forth in Exhibit "D" shall have priority. TAKE NOTE THAT THE ATTACHED REQUIREMENTS CONTAIN TERMS AND CONDITIONS THAT APPLY GENERALLY TO ACTIVITIES THAT MAY BE CONDUCTED ON OR NEAR THE EASEMENT AREA AND ARE NOT LIMITED IN APPLICATION TO THE PERMITTED FACILITY BUT ALSO ARE APPLICABLE TO FUTURE FACILITIES. 15. Permittee's rights under this Agreement may not be assigned without the written permission of ONEOK. 16. Neither party shall be liable to the other for any indirect, incidental, consequential, reliance or special damages (including, without limitation, damages for harm to business, lost revenues, lost savings or lost profits) regardless of the form of action, whether in contract, warranty, strict liability or tort, including, without limitation, negligence of any kind, whether active or passive, and regardless of whether the party knew of the possibility that such 1826157;81 7 damages could result; provided, however, this limitation shall not apply to damages payable or paid to third parties. 17. All notices and communications required or permitted to be given hereunder, except in the event of an Emergency as defined in paragraph 1 of this Agreement, shall be in writing and mailed by certified or registered mail, postage prepaid, or by Federal Express, Airborne Express, or similar overnight delivery service, addressed as follows: If to ONEOK: ONEOK WesTex Transmission, LLC Attn: Right of Wa�Department 100 West Fifth Street ONEOK Plaza Tulsa, OK 74103 With a copy to: Elizabeth R. Muratet GableGotwals Counsel 100 West Fifth Street 1100 ONEOK Plaza Tulsa, OK 74103 If to PERMITTEE: Director of Aviation 5401 N MLK Blvd., Unit 389 Lubbock, Texas 79403 In an event of an Emergency, ONEOK shall notify Permittee as required by paragraph 1 of this Agreement. Notice shall be deemed to have been given upon receipt or refusal. 18. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together shall constitute a single agreement. EXECUTED this day of , 2010. (826157;8) ONEOK: ONEOK WES TEX TRANSMISSION, L.L.C. LM Title: CITY OF LUBBOCK, TEXAS Tom Martin, Mayor ATTEST: Becky Garza, City Secretary APPROVED AS TO CONTENT: James Loomis, Assistant City Manager Transportation & Public Works _":• W."%, 9 1 Le•:u_ Chad Weaver, Assistant City Attorney EXHIBIT C NOT A SIGNATURE PAGE {826157;8} 9 ACKNOWLEDGEMENTS STATE OF )ss. COUNTY OF This instrument was acknowledged before me on the 2010, by as Transmission, L.L.C. Notary Public My Commission No. Expires: STATE OF ) )ss. COUNTY OF ) This instrument was acknowledged before me on the 2010, by as My Commission No. Expires: Notary Public EXHIBIT C NOT A SIGNATURE PAGE {826157;8} 10 day of , of ONEOK WesTex day of of Resolution No. 2010-R0047 EXHIBIT "A" LEGAL DESCRIPTION Lubbock County, Texas Section 43, Block A, said right-of-way is further described by centerline as follows: Beginning at a point in the North line of said Section 43, said point being 65 feet east of the NW corner of said Section 43; thence South, parallel with west line of said Section 43, to a point in the south line of said Section 43. {826157;8} A-1 EXHIBIT B DESCRIPTION OF ENCROACHMENTS The area over which the pipeline easement will be encroached by the airport runway - See Exhibit "B-1". No other encroachments are included. These encroachments are only approved as designed and documented on the drawing(s) made part of this Agreement. If, for any reason, the encroachments are not built to these specifications, this Agreement shall become null and void and Permittee shall remove these unapproved encroachments at their sole expense. {826157;81 B-1 M. jilool a 3=Bume a am oK imu,c u =Wn m-, Resolution No. 2010-R0047 1gm.i1:�Yr1] Protection of the Pipelines and Easements of ONEOK WesTex Transmission, L.L.C. ONEOK WesTex Transmission, L.L.C. as the owner and operator of pipelines, and is dedicated to protecting the environment, the public, contractors, and employees. The following requirements and guidelines for encroachment on the easements of ONEOK WesTex Transmission, L.L.C. and/or any of their respective affiliates (collectively "ONEOK") are established to comply with governmental regulations and to reduce the risk of damage to ONEOK's pipelines. Deviations from the following requirements may be requested, in writing and must be approved and permitted by ONEOK. A party desiring to construct, install or otherwise place or permit any object, natural or artificial to be placed within the Easement Area is hereinafter referred to as the "Encroacher." General Requirements: 1. The Encroacher must execute ONEOK's Encroachment Agreement before starting any construction work in ONEOK's easement. 2. A plan and profile with sufficient detail depicting the relationship between ONEOK's pipeline, existing grade, grade during construction, final grade, and all surface and underground encroachments must be provided to ONEOK's engineering department for evaluation before an encroachment permit will be issued. If the encroachment is part of a development that will eventually result in the construction of a private dwelling, or any industrial building, or place of public assembly within fifty (50) feet of the pipeline, then the Encroacher must agree to provide the pipeline with a minimum depth of cover of 48" within the confines of the legal description for which the permit is written, and also to provide a registered plat at the Encroacher's expense of the centerline of the pipeline with respect to the Encroacher's planned improvements. 3. After acquiring an Encroachment Agreement, the Encroacher must give at least forty-eight (48) hours notice by calling the appropriate state One -Call telephone number before starting any individual excavation or other construction work in or near ONEOK's easement; however, if a major crossing is planned, then additional notice will be needed. (See # 5 under Surface Construction Requirements below.) 4. ONEOK's easement must be kept clear of such things as trees, shrubs, ponds, culverts, driveways, rock or brick fences, retaining walls, lateral lines, septic tanks, lagoons, dikes, bridges, canals, levees, burn piles, trash dumps, feeders, pole barns, hay barns, carports, garages, trailers, tanks, buildings, homes or any inhabitable structures, or other obstructions that are not specifically permitted.. 5. ONEOK permits the encroachment only to the extent it may do so by law. 6. No utilities or roads shall run parallel to the ONEOK pipeline within the easement. 7. An authorized ONEOK representative must be present during excavation within twenty-five (25) feet of a ONEOK facility, or pipeline. { 826157;81 -1 8. Blasting within five hundred (500) feet of a ONEOK pipeline is subject to evaluation and prior approval by ONEOK. 9. ONEOK personnel shall review construction drawings for facilities planned near or crossing ONEOK's easement. All construction drawings shall have a note that reads as follows: "WARNING -High Pressure Natural Gas Pipeline, Contact the state's "One -Call" system and ONEOK at 800-562-5879 before digging." 10. Changes in grade that could cause loss of cover or erosion on the easement are forbidden. Provisions to prevent erosion shall be incorporated into the plans of the encroachment. The Encroacher accepts full liability for any damage to ONEOK's facilities, or pipelines, resulting from the encroachment, including, but not limited to, exposure of ONEOK's facilities, or pipelines, due to erosion, settling of the earth, excessive vehicular loads, etc. 11. Markers and signs must not be obstructed, removed, or damaged. 12. Transportation of construction equipment longitudinally over ONEOK's pipeline is not permitted. A temporary perpendicular construction crossing that provides a minimum of thirty-six (36) inches of cover, and as further described below in the Surface Construction Requirements, below, must be used to gain access to job sites. 13. Future repairs to ONEOK's easement or ONEOK's pipeline, which are required due to the activities of the Encroacher, are to be performed at the expense of the Encroacher. 14. Pipeline rerouting, lowering, encasing, etc., will be done by ONEOK, or ONEOK's contractor, and will be paid for by the Encroacher. 15. Storage of equipment or materials on ONEOK's easement is prohibited. Equipment Restrictions: 1. ONEOK shall install marker tape or a concrete cap, or both, at a depth deemed necessary by ONEOK for the protection of its pipeline(s) during construction. The use of scrapers or pan - type tractors for soil removal or the use of sheepsfoot rollers or vibratory rollers is not allowed below such marker tape or concrete cap. 2. If reasonable, teeth covers shall be used on excavating equipment to reduce the chance of damaging ONEOK's pipeline; however, the heavy equipment operator must dig no closer than one foot from the top, bottom, or sides of the pipeline, or greater if required by federal, state, or local regulations. 3. Track equipment shall not turn directly over ONEOK's pipeline. Surface Construction Requirements: 1. Roads shall cross as close to ninety degrees (90°) to ONEOK's pipeline as possible. It is acknowledged by ONEOK that Encroacher in its day-to-day and normal operations will place upon or cross the easement with extremely heavy loads such as commercial jets, firetrucks, fuel trucks and heavy construction equipment. ONEOK will perform appropriate 1826157;8) D-2 engineering studies, as necessary and in accordance with applicable industry standards, to ensure the necessary and appropriate design in accordance with such industry standards, for the continued safety and integrity of the pipeline. In addition, ONEOK agrees to install signage containing a "High Pressure Natural Gas Pipeline" warning adjacent to any roadway under which the pipeline is located. Crossings shall be constructed in accordance with the parameters set forth in Exhibit C-1 attached hereto for all road crossings, unless otherwise specifically approved by ONEOK in writing. 2. At no time will (i) the removal of the existing earth cover from over the ONEOK pipeline(s) such that ONEOK would be in violation of any existing law, regulation or order be permitted (ii) the cover be allowed to be less than thirty-six inches (36"), except to the extent prior written approval is granted by ONEOK, or (iii) an increase in the existing earth cover cause the total to exceed ten (10) feet over the pipeline(s). 3. For temporary and permanent roads or parking lots, asphalt pavement is preferred. If asphalt or concrete is used, the road shall be jointed every ten (10) feet. An agreement indemnifying ONEOK for pavement replacement costs will be included in the Encroachment Agreement. No pavement may be removed and any repair must be accomplished by boring method or other Permittee -approved, non-destructive method to avoid any damage to the surface, except in the event of an Emergency as provided in paragraph 1 of the Agreement. 4. The Encroacher shall provide ONEOK notification of a street, road, or railroad crossings with the scope of the encroaching project, but, in no event, shall such notification be less than ninety (90) days prior to the planned start of the crossing. 5. Temporary construction crossings for heavy equipment access to job sites shall cross as close to ninety degrees (90°) to ONEOK's pipeline as possible and provide a minimum of ten (10) feet of earth cover. The specific amount of earth cover required shall be calculated by ONEOK's engineers based upon anticipated equipment loading, and shall be approved by ONEOK prior to any use of such crossings. Provisions to prevent rutting and erosion shall be used. 6. Structures such as manholes and catch basins cannot be located within ONEOK's easement. 7. Overhead power lines or other such crossings must maintain a twenty-five (25) foot clearance above the entire breadth of ONEOK's easement, and cross as close to ninety degrees (90°) as possible. 8. Poles, guy wires, etc. cannot be located within the boundaries of ONEOK's easement. Underground Construction Requirements: 1. Crossings shall be made as close to ninety degrees (90°) to ONEOK's pipeline as possible. 2. Crossings shall be made under the existing line with a clearance of one and one-half (1.5) times the diameter of the largest pipe, but with at least two (2) feet of separation from ONEOK's pipeline. 3. A six (6) inch wide warning tape must be installed twelve (12) to eighteen (18) inches above non-metallic lines across the entire width of ONEOK's easement. {826157;8} D-3 4. Warning signs, where practical, identifying the owner, type of service, and emergency phone numbers shall be placed at each edge of the easement crossing. 5. Fiber optics cables shall be encased in non metallic conduit within ONEOK's easement. 6. Power lines must be installed in conduit, non-metallic. Also, six (6) inches of red concrete must protect the top of the conduit. The concrete may be omitted if forty-eight (48) inches of clearance is maintained. Metallic conduit may require cathodic protection. 7. Metallic pipe crossings shall have corrosion test leads installed on both pipes at their intersection. 8. Bore pits must be ten (10) feet or more from ONEOK's pipeline(s). The crossing point must be exposed at least two (2) feet deeper than the bottom of the pipeline to verify sufficient clearance of the boring tool. 9. Open trench crossings must be made across only one pipeline at a time. The trench must meet OSHA requirements. Temporary piping supports may be required. 10. Backfilling shall be performed in such a manner that the pipeline is not subjected to impact damage or excessive stresses, and no large lumps of frozen soil, rocks, gravel, or like materials shall be backfilled directly onto the pipe. No foreign substances, such as welding rods, cans, ropes, skids, brush or trees, are to be placed in any excavation on ONEOK's easement. 11. Underground alternating current (AC) electrical cables with a metallic outer sheath or bare concentric neutral installed within a twenty foot corridor, ten feet on each side of the pipeline, should be placed in an insulating conduit or jacket such as reinforced fiberglass, polyethylene or polyvinyl chloride pipe. Cables energized to 600 volts or more should cross a minimum of 3 feet below the pipeline if practical, be incased in concrete, color coded red, across the entire right-of-way width, and have external, spiral wound, neutrals grounded on each side of the right-of-way. The cable crossing should be clearly and permanently marked on each side of the right-of-way, if practical. (826157;8) D-4 Resolution No. 2010-R0047 When Recorded, Return To: ONEOK WesTex Transmission, L.L.C. Attn: Right of Way Dept. P.O. Box 871 Tulsa, OK. 74102 AGREEMENT PERMITTING A LIMITED ENCROACHMENT ON EASEMENT This AGREEMENT PERMITTING A LIMITED ENCROACHMENT ON EASEMENT ("Agreement") is entered into this 28th day of January , 2010, by and between ONEOK WesTex Transmission, L.L.C., a Delaware limited liability company (hereinafter referred to as "ONEOK") and CITY OF LUBBOCK, a Texas home rule municipal corporation (hereinafter referred to as "Permittee, whether one or more). Collectively, ONEOK and Permittee may be referred to herein as a "Party" or collectively as the "Parties". WHEREAS, by a certain Right of Way Agreement (the "Easement"), ONEOK owns an easement within which it has constructed and maintains a natural gas transmission pipeline and associated facilities (collectively the "ONEOK Facilities") over, upon, across and throughout that certain real property described on Exhibit "A" attached hereto and made a part hereof. WHEREAS, Permittee operates an airport and desires to cross such facilities with an airport runway, taxiway, perimeter road and perimeter fence all as more fully described in Exhibit "B" attached hereto and made a part hereof (collectively referred to herein as the "Encroachment"). WHEREAS, the Parties desire to set forth their mutual rights and obligations with respect to the Easement and Encroachment; NOW THEREFORE, ONEOK agrees to grant Permittee a limited right to encroach upon the Easement, subject to the terms and conditions set forth herein; and Permittee, in consideration of this limited right of Encroachment, agree to the following covenants and obligations set forth herein: 1. Permittee specifically acknowledges ONEOK's need for access to its facilities and recognizes its rights under the Easement area, which are to remain in full force and effect notwithstanding this Agreement, except that ONEOK has no right or privilege to occupy, use or enter upon the surface of any runway or taxiway located in the Easement except in the event of an "Emergency" as defined herein. Any non -emergency maintenance or repair of ONEOK's Facilities must be done by boring or other non-destructive method in a good and workmanlike manner, to be approved by Permittee, such approval not to be unreasonably conditioned, withheld or delayed, so as not to cause use, entry upon, interference or damage to any runway, taxiway, roadway or fencing. Permittee shall approve or disapprove the plans for such non- emergency repair or maintenance within ten (10) business days after receiving same by providing written notice to ONEOK. If Permittee disapproves the plans, Permittee's notice must (826157;8) include the reason(s) for such disapproval. If Permitee fails to approve or disapprove the plans in the manner set forth above prior to the end of such period, Permitee will be deemed to have approved such plans. For purposes of this Agreement, an "Emergency" shall mean an event or repair requiring in the reasonable judgment of ONEOK the complete shut down of ONEOK's facilities. In the event of an Emergency, the following procedures shall be followed: (i). ONEOK shall immediately notify (by telephone) the Permittee's Director of Aviation's Office at 806-775-2044 of a need for access to the Encroachment Area, as defined below, that is otherwise restricted under the terms and conditions of this Agreement. (ii) Upon actual receipt of the notification, the Permittee shall immediately coordinate with ONEOK to allow ONEOK the access it needs in order to make the repairs to remedy the Emergency, including access to otherwise restricted areas, if such access is necessary for ONEOK to remedy the Emergency. Permittee and ONEOK shall at all times comply with Federal Aviation Administration rules, regulations and procedures and other applicable law. As consideration for this Agreement, any cost to Permittee or damage to the area of the Encroachment (the "Encroachment Area") resulting from ONEOK's need to maintain, operate or repair its facilities, including, but not limited to, costs for the maintenance, replacement or repair of encroachments, whether as a result of an Emergency or otherwise, will be the sole responsibility of Permittee and ONEOK will not, under any circumstances, be responsible for loss or damage to the Encroachment Area. Further, in the event the cost to maintain or repair ONEOK's Facilities located under the Encroachment Area is in excess of normal and customary maintenance costs as a result of the encroachment by Permittee, then in that event, within thirty (30) days following written demand, Permittee shall pay to ONEOK the incremental difference between the normal and customary costs of maintenance and repair without the existence of the Encroachment and the actual costs of repair as a result of the Encroachment. In order to accommodate the boring requirements contemplated by this Agreement in order to make repairs to the ONEOK Facilities as permitted under the terms of this Agreement in a non -emergency basis, upon written request by ONEOK, Permitee shall allow ONEOK reasonable access to an additional working area beyond the Easement, on a temporary basis, sufficient to allow ample room for such boring activity in the most efficient and economic manner possible. 2. Permittee will furnish, or cause to be furnished to ONEOK, detailed plans, including a certified survey, for the construction of the Encroachment upon or under the Easement. Such plans must be furnished in advance of any proposed construction to allow ONEOK time to review and approve Permittee's proposal, such approval not to unreasonably be withheld. The plans, if approved by ONEOK, shall be deemed incorporated herein by reference and made a part of this Agreement. Permittee agrees that any review or approval by ONEOK of any plans and/or specifications relating to the Encroachment or the identity of any contractors, subcontractors and materialmen is solely for ONEOK's benefit, and without any representation or warranty whatsoever to Permittee with respect to the adequacy, correctness or efficiency thereof or otherwise and it is understood that such ONEOK's approval does not absolve Permittee of any liability hereunder. Further, Permittee, in connection with the construction, {826157;8} 2 maintenance and/or removal of the Encroachment, agrees to observe and fully comply with all laws, rules and regulations of the United States, the State of Texas, and all agencies and political subdivisions thereof. 3. This Agreement shall be revocable by ONEOK in the event of (a) Permittee's failure to construct the improvements for which this encroachment is intended; or (b) cessation of the use of the improvements for which this encroachment is intended for a period in excess of one year. 4. The ground cover over ONEOK's facilities in the Easement shall be kept at minimum footage as set forth on the profile attached hereto as Exhibit "C" and made a part hereof during and following the construction of the Encroachment. Adjustments to the minimum ground cover may be made as required by applicable industry standards upon the agreement of both parties. After completion of the Encroachment, Permittee will restore, at its own cost and expense, the surface of the land, as nearly as reasonably possible to its condition prior to Permittee's construction. 5. Permittee shall, immediately upon demand, compensate ONEOK for any repairs or damages to ONEOK's facilities resulting from the acts of Permittee or its employees, contractors, agents, or any persons acting for or under Permittee's authority or direction. 6. Permittee also agrees to pay during construction of the Encroachment, for any cathodic protection test leads ONEOK may, at its sole discretion, install on its facilities, so that ONEOK can monitor any possible interference with its facilities that may result from the Encroachment. 7. Indemnity and Hold Harmless. (A) TO THE FULLEST EXTENT PERMITTED BY LAW, PERMITTEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS ONEOK AND ONEOK'S AFFILIATED COMPANIES, PARTNERS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION) (COLLECTIVELY, "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (I) PERMITTEE'S OCCUPATION AND USE OF THE EASEMENT AREA; (II) CONSTRUCTION, USE, STATE OF REPAIR OR PRESENCE OF THE ENCROACHMENT; OR (III) ANY ACT OR OMISSION OF PERMITTEE OR PERMITTEE'S OFFICERS, AGENTS, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. (826157;8) 3 (B) PERMITTEE ACKNOWLEDGES THAT HAVING THE ENCROACHMENT ON THE EASEMENT PROVIDES SOME RISK THAT THE ENCROACHMENT MAY BE DAMAGED IN THE COURSE OF ONEOWS OPERATIONS OR ACTIVITIES AS PROVIDED IN THIS AGREEMENT. THEREFORE, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, PERMITTEE RELEASES THE INDEMNITEES FROM ANY LOSS, DAMAGE AND/OR CLAIM FROM LOSS OR DAMAGE TO THEIR PROPERTY, INCLUDING THE ENCROACHMENT, THAT PERMITTEE MAY HAVE AGAINST THE INDEMNITEES RESULTING FROM THE ACTIVITIES OF ONEOK IN THE ORDINARY COURSE OF ITS OPERATIONS AS PROVIDED HEREIN, EVEN IF SUCH LOSS, DAMAGE OR CLAIM IS CAUSED BY THE NEGLIGENCE OF ANY INDEMNITEE; PROVIDED THAT SUCH RELEASE SHALL NOT APPLY TO ANY LOSS, DAMAGE OR CLAIM WHOLLY CAUSED BY THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. 8. At all times from the date of this Agreement, ONEOK shall maintain in force, at its sole cost and expense, the minimum insurance as set forth below, in such form and from such companies as meet the Insurance Standard defined below. All of such insurance to be in such form and with such companies having a Best's Key Rating Guide rating not lower than A- (VIII) or corresponding rating from another widely recognized rating organization if the insurer is not rated by Best's (the "Insurance Standard"). (826157;8) 4 Each Occurrence Annual Aggregate Limit (unless Limit otherwise specified below) Commercial Bodily Injury and Property $1,000,000 $2,000,000 General Liability Damage Combined Automobile Bodily Injury and Property $1,000,000 N/A Liability Damage Combined (each accident) Workers' Each Accident Statutory N/A Compensation Employer's Each Accident $1,000,000 N/A Liability Disease —per person $1,000,000 $1,000,000 (826157;8) 4 Umbrella Liability Combined single limit in $4,000,000 $4,000,000 excess of the Commercial Limit (unless Limit General Liability, otherwise specified Automobile Liability and below) Airport Liability Employers Liability $5,000,000 $5,000,000 coverage At all times from the date of this Agreement, Permitee shall maintain in force, at its sole cost and expense, the minimum insurance as set forth below, in such form and from such companies as meet the Insurance Standard as defined above. (a) Commercial Automobile Liability insurance must cover owned, hired and non - owned vehicles. If any of ONEOK's or Permittee's vehicles are carrying or capable of carrying any petroleum products (other than fuel necessary to operate the vehicle), chemical products, waste materials (hazardous, toxic or otherwise), coverage must include sudden and accidental pollution and if required by any governmental authority, must have an MCS -90 Endorsement attached. (b) Commercial General Liability Insurance and/or Airport Liability whichever is required must include premises and operations, personal injury, broad form contractual, broad form property damage, products and completed operations; contractor's protective liability, sudden and accidental pollution coverage and rigger's liability insurance if ONEOK or Permittee will be using crane or other mechanical device for lifting/hoisting. Prohibited Exclusions: General liability insurance must not exclude liability for: (i) injury to or destruction of wires, conduits, pipes, mains, sewers, or other similar property, or any apparatus in connection with (826157;8) 5 Each Occurrence Annual Aggregate Limit (unless Limit otherwise specified below) Airport Liability Bodily Injury and Property $5,000,000 $5,000,000 Damage Combined Automobile Bodily Injury and Property $1,000,000 N/A Liability Damage Combined (each accident) Workers' Each Accident Statutory N/A Compensation Employer's Each Accident $1,000,000 N/A Liability Disease —per person $1,000,000 $1,000,000 (a) Commercial Automobile Liability insurance must cover owned, hired and non - owned vehicles. If any of ONEOK's or Permittee's vehicles are carrying or capable of carrying any petroleum products (other than fuel necessary to operate the vehicle), chemical products, waste materials (hazardous, toxic or otherwise), coverage must include sudden and accidental pollution and if required by any governmental authority, must have an MCS -90 Endorsement attached. (b) Commercial General Liability Insurance and/or Airport Liability whichever is required must include premises and operations, personal injury, broad form contractual, broad form property damage, products and completed operations; contractor's protective liability, sudden and accidental pollution coverage and rigger's liability insurance if ONEOK or Permittee will be using crane or other mechanical device for lifting/hoisting. Prohibited Exclusions: General liability insurance must not exclude liability for: (i) injury to or destruction of wires, conduits, pipes, mains, sewers, or other similar property, or any apparatus in connection with (826157;8) 5 them, below the surface of the ground, (ii) injury to or destruction of any property arising out of blasting or explosion; (iii) Care, Custody and Control; (iv) sudden and accidental pollution; (v) explosion, collapse and underground (x,c,u). (c) Worker's compensation and employer's liability insurance must be in full compliance with the laws of the state(s) in which the work is to be performed. (d) Commercial Umbrella/Excess Liability: Insurance shall be at minimum "following form excess" of primary coverages in notes (a), (b) and (c) above. (e) Waiver of Subrogation and Subcontractor Insurance: ONEOK and Permittee agrees to waive all rights of subrogation against the other party, including any and all such rights of ONEOK's and/or Permittee's insurer(s). The effect of such waivers is not limited to the amount of insurance actually carried or required to be carried or to the actual proceeds received. (f) Any contractors or subcontractors hired by ONEOK and/or Permittee and entering upon or providing any services to ONEOK or Permittee within the Easement Area shall also obtain and maintain insurances coverages meeting the requirements of this Agreement. Any deficiencies in the coverage, policy limits or endorsements of contractor or subcontractors shall be the sole responsibility of ONEOK or Permittee, as applicable. (g) Notice of Cancellation/Non Renewal/Modification: If the above coverages are canceled, non -renewed or materially changed in any manner, each party shall give no less than thirty (30) days prior written notice to the other party at the address specified in the Agreement. ONEOK or Permittee, as the case may be, must replace insurance coverage of any canceled, non - renewed or materially modified policies to the other party's satisfaction prior to the effective date of any such policy cancellation, non -renewal or modification. (h) Primary and Non Contributory: ONEOK's and Permittee's insurances shall be primary and non contributory as respects other insurance or self insurance available to ONEOK and/or Permittee. (i) Certificate Holder and Additional Insured. Each Party must show that the other Party is an additional insured on their respective policies. 9. It is understood and agreed any and all prior rights and privileges granted to ONEOK under the Easement shall remain in full force and effect. 10. Permittee shall notify or cause ONEOK to be notified, at least forty-eight (48) hours prior to the performance of any work upon or around the Encroachment Area. PERMITTEE COVENANTS AND AGREES TO NOTIFY OR CAUSE ITS REPRESENTATIVE TO NOTIFY THE APPROPRIATE STATE ONE -CALL CENTER AS REQUIRED BY LAW NO LESS THAN FORTY-EIGHT (48) HOURS PRIOR TO THE COMMENCEMENT OF EXCAVATION IN OR NEAR THE EASEMENT. ONEOK shall have the absolute right, subject to the limitations on ONEOK's use of the surface as set forth in paragraph 1 above, to perform any work upon the Easement it deems necessary for the ( 826157;8) 6 maintenance or operation of its facilities upon giving forty-eight (48) hours prior notice to Permittee, except in the case of an Emergency, in which ONEOK shall provide notice to Permittee as required by paragraph 1 of this Agreement. Any such work must be accomplished as required by paragraph 1. 11. Permittee hereby represents and warrants to ONEOK that (i) Permittee is a municipal CORPORATION and that it is duly organized, validly existing and in good standing under the laws of the state of Texas; (ii) Permittee has full power and authority to sign and perform under this Agreement; (iii) Permittee has obtained any and all necessary consents and approvals of all requisite parties to sign and perform under this Agreement, and (iv) this Agreement constitutes the valid, legal, and binding obligation of the Permittee enforceable against the Permittee in accordance with its terms. The agreements and conditions herein shall constitute covenants running with the land and shall be binding UPON and inure to the benefit of the Parties, their personal representatives, heirs, successors and assigns. PERMITTEE COVENANTS AND AGREES THAT IT SHALL PROVIDE ACTUAL NOTICE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND OF ONEOK'S EASEMENT RIGHTS TO ALL TRANSFEREES OF ALL OR ANY PART OF PERMITTEE'S INTEREST IN THIS PROPERTY. 13. In the event either party breaches the terms, covenants or conditions of this Agreement and the other party commences litigation to enforce any provision of this Agreement, the prevailing party shall be entitled to the recovery of attorney's fees and costs. 14. PERMITTEE AGREES TO THE PROTECTION OF PIPELINES AND EASEMENTS DOCUMENT ATTACHED AS EXHIBIT "D". UNLESS SPECIFICALLY APPROVED, TO THE EXTENT THAT ANY OF THE REQUIREMENTS SET FORTH in Exhibit "D" conflict with or are more stringent than the requirements set forth above, the requirements set forth in Exhibit "D" shall have priority. TAKE NOTE THAT THE ATTACHED REQUIREMENTS CONTAIN TERMS AND CONDITIONS THAT APPLY GENERALLY TO ACTIVITIES THAT MAY BE CONDUCTED ON OR NEAR THE EASEMENT AREA AND ARE NOT LIMITED IN APPLICATION TO THE PERMITTED FACILITY BUT ALSO ARE APPLICABLE TO FUTURE FACILITIES. 15. Permittee's rights under this Agreement may not be assigned without the written permission of ONEOK. 16. Neither party shall be liable to the other for any indirect, incidental, consequential, reliance or special damages (including, without limitation, damages for harm to business, lost revenues, lost savings or lost profits) regardless of the form of action, whether in contract, warranty, strict liability or tort, including, without limitation, negligence of any kind, whether active or passive, and regardless of whether the party knew of the possibility that such {826157;8} 7 damages could result; provided, however, this limitation shall not apply to damages payable or paid to third parties. 17. All notices and communications required or permitted to be given hereunder, except in the event of an Emergency as defined in paragraph 1 of this Agreement, shall be in writing and mailed by certified or registered mail, postage prepaid, or by Federal Express, Airborne Express, or similar overnight delivery service, addressed as follows: If to ONEOK: ONEOK WesTex Transmission, LLC Attn: Right of Way Department 100 West Fifth Street ONEOK Plaza Tulsa, OK 74103 With a copy to: Elizabeth R. Muratet GableGotwals Counsel 100 West Fifth Street 1100 ONEOK Plaza Tulsa, OK 74103 If to PERMITTEE: Director of Aviation 5401 N MLK Blvd., Unit 389 Lubbock, Texas 79403 In an event of an Emergency, ONEOK shall notify Permittee as required by paragraph 1 of this Agreement. Notice shall be deemed to have been given upon receipt or refusal. 18. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together shall constitute a single agreement. EXECUTED this 28th day of January , 2010. (826157;8} ONEOK: ONEOK WES TEX TRANSMISSION, L.L.C. By: ; Title: -.5✓ V P 61�� R f2el CITY OF LUBBOCK, TEXAS Tom Martin, Mayor ATTEST: Becky arza, City Secretary APPROVED AS TO CO TENT: �L J mes oomis, Assistant City Manager trans6ortation & Public Works APPROVED, AS TO FORM: Chad Weaver, Assistant City Attorney (826157,) 9 ACKNOWLEDGEMENTS STATE OF �) lal•,„a ) )ss. COUNTY OF 1 IA a ) This instrument was acknowledged before me on the 2' '' day of -Ja n oar , 2010, by M %'ke M(-Isflvr as Sr_ ViLeaesiJcn 4-- of ONEOK WesTex Transmission, L.L.C. z �L� totar blic My Commission No. 6(v Expires: "O"WrIo" 0 odo�oata � '- �wswe; .c a� ow STATE OF �� as ) � '��" )ss. COUNTY OF ( ydoboc - ) ft This instrument was acknowledged before me on the gq�day of , Lim �, 2010, b —ro m M 60-h f1 as mai4 Or of Notary Public My Commission No. Expires: ELISA SANCHEZ Notary Public, State of Texas My Commission Expires 11.07.2011 (826157;8) 10 Resolution No. 2010-R0047 EXHIBIT "A" LEGAL DESCRIPTION Lubbock County, Texas Section 43, Block A, said right-of-way is further described by centerline as follows: Beginning at a point in the North line of said Section 43, said point being 65 feet east of the NW corner of said Section 43; thence South, parallel with west line of said Section 43, to a point in the south line of said Section 43. (826157;8) A-1 Resolution No. 2010-R0047 EXHIBIT B DESCRIPTION OF ENCROACHMENTS The area over which the pipeline easement will be encroached by the airport runway - See Exhibit "B-1". No other encroachments are included. These encroachments are only approved as designed and documented on the drawing(s) made part of this Agreement. If, for any reason, the encroachments are not built to these specifications, this Agreement shall become null and void and Permittee shall remove these unapproved encroachments at their sole expense. (826157;8) B-1 EXHIBIT 66]R-1 7f No. 2010-R0047 21 R4 Resolution No. 2010-R0047 EXHIBIT D Protection of the Pipelines and Easements of ONEOK WesTex Transmission, L.L.C. ONEOK WesTex Transmission, L.L.C. as the owner and operator of pipelines, and is dedicated to protecting the environment, the public, contractors, and employees. The following requirements and guidelines for encroachment on the easements of ONEOK WesTex Transmission, L.L.C. and/or any of their respective affiliates (collectively "ONEOK") are established to comply with governmental regulations and to reduce the risk of damage to ONEOK's pipelines. Deviations from the following requirements may be requested, in writing and must be approved and permitted by ONEOK. A party desiring to construct, install or otherwise place or permit any object, natural or artificial to be placed within the Easement Area is hereinafter referred to as the "Encroacher." General Requirements: 1. The Encroacher must execute ONEOK's Encroachment Agreement before starting any construction work in ONEOK's easement. 2. A plan and profile with sufficient detail depicting the relationship between ONEOK's pipeline, existing grade, grade during construction, final grade, and all surface and underground encroachments must be provided to ONEOK's engineering department for evaluation before an encroachment permit will be issued. If the encroachment is part of a development that will eventually result in the construction of a private dwelling, or any industrial building, or place of public assembly within fifty (50) feet of the pipeline, then the Encroacher must agree to provide the pipeline with a minimum depth of cover of 48" within the confines of the legal description for which the permit is written, and also to provide a registered plat at the Encroacher's expense of the centerline of the pipeline with respect to the Encroacher's planned improvements. 3. After acquiring an Encroachment Agreement, the Encroacher must give at least forty-eight (48) hours notice by calling the appropriate state One -Call telephone number before starting any individual excavation or other construction work in or near ONEOK's easement; however, if a major crossing is planned, then additional notice will be needed. (See # 5 under Surface Construction Requirements below.) 4. ONEOK's easement must be kept clear of such things as trees, shrubs, ponds, culverts, driveways, rock or brick fences, retaining walls, lateral lines, septic tanks, lagoons, dikes, bridges, canals, levees, burn piles, trash dumps, feeders, pole barns, hay barns, carports, garages, trailers, tanks, buildings, homes or any inhabitable structures, or other obstructions that are not specifically permitted.. 5. ONEOK permits the encroachment only to the extent it may do so by law. 6. No utilities or roads shall run parallel to the ONEOK pipeline within the easement. 7. An authorized ONEOK representative must be present during excavation within twenty-five (25) feet of a ONEOK facility, or pipeline. (826157s) D-1 Blasting within five hundred (500) feet of a ONEOK pipeline is subject to evaluation and prior approval by ONEOK. 9. ONEOK personnel shall review construction drawings for facilities planned near or crossing ONEOK's easement. All construction drawings shall have a note that reads as follows: "WARNING -High Pressure Natural Gas Pipeline, Contact the state's "One -Call" system and ONEOK at 800-562-5879 before digging." 10. Changes in grade that could cause loss of cover or erosion on the easement are forbidden. Provisions to prevent erosion shall be incorporated into the plans of the encroachment. The Encroacher accepts full liability for any damage to ONEOK's facilities, or pipelines, resulting from the encroachment, including, but not limited to, exposure of ONEOK's facilities, or pipelines, due to erosion, settling of the earth, excessive vehicular loads, etc. 11. Markers and signs must not be obstructed, removed, or damaged. 12. Transportation of construction equipment longitudinally over ONEOK's pipeline is not permitted. A temporary perpendicular construction crossing that provides a minimum of thirty-six (36) inches of cover, and as further described below in the Surface Construction Requirements, below, must be used to gain access to job sites. 13. Future repairs to ONEOK's easement or ONEOK's pipeline, which are required due to the activities of the Encroacher, are to be performed at the expense of the Encroacher. 14. Pipeline rerouting, lowering, encasing, etc., will be done by ONEOK, or ONEOK's contractor, and will be paid for by the Encroacher. 15. Storage of equipment or materials on ONEOK's easement is prohibited. Equipment Restrictions: ONEOK shall install marker tape or a concrete cap, or both, at a depth deemed necessary by ONEOK for the protection of its pipeline(s) during construction. The use of scrapers or pan - type tractors for soil removal or the use of sheepsfoot rollers or vibratory rollers is not allowed below such marker tape or concrete cap. 2. If reasonable, teeth covers shall be used on excavating equipment to reduce the chance of damaging ONEOK's pipeline; however, the heavy equipment operator must dig no closer than one foot from the top, bottom, or sides of the pipeline, or greater if required by federal, state, or local regulations. 3. Track equipment shall not turn directly over ONEOK's pipeline. Surface Construction Requirements: 1. Roads shall cross as close to ninety degrees (90°) to ONEOK's pipeline as possible. It is acknowledged by ONEOK that Encroacher in its day-to-day and normal operations will place upon or cross the easement with extremely heavy loads such as commercial jets, firetrucks, fuel trucks and heavy construction equipment. ONEOK will perform appropriate (826157,8) D-2 engineering studies, as necessary and in accordance with applicable industry standards, to ensure the necessary and appropriate design in accordance with such industry standards, for the continued safety and integrity of the pipeline. In addition, ONEOK agrees to install signage containing a "High Pressure Natural Gas Pipeline" warning adjacent to any roadway under which the pipeline is located. Crossings shall be constructed in accordance with the parameters set forth in Exhibit C-1 attached hereto for all road crossings, unless otherwise specifically approved by ONEOK in writing. 2. At no time will (i) the removal of the existing earth cover from over the ONEOK pipeline(s) such that ONEOK would be in violation of any existing law, regulation or order be permitted (ii) the cover be allowed to be less than thirty-six inches (36"), except to the extent prior written approval is granted by ONEOK, or (iii) an increase in the existing earth cover cause the total to exceed ten (10) feet over the pipeline(s). 3. For temporary and permanent roads or parking lots, asphalt pavement is preferred. If asphalt or concrete is used, the road shall be jointed every ten (10) feet. An agreement indemnifying ONEOK for pavement replacement costs will be included in the Encroachment Agreement. No pavement may be removed and any repair must be accomplished by boring method or other Permittee -approved, non-destructive method to avoid any damage to the surface, except in the event of an Emergency as provided in paragraph 1 of the Agreement. 4. The Encroacher shall provide ONEOK notification of a street, road, or railroad crossings with the scope of the encroaching project, but, in no event, shall such notification be less than ninety (90) days prior to the planned start of the crossing. 5. Temporary construction crossings for heavy equipment access to job sites shall cross as close to ninety degrees (90°) to ONEOK's pipeline as possible and provide a minimum of ten (10) feet of earth cover. The specific amount of earth cover required shall be calculated by ONEOK's engineers based upon anticipated equipment loading, and shall be approved by ONEOK prior to any use of such crossings. Provisions to prevent rutting and erosion shall be used. 6. Structures such as manholes and catch basins cannot be located within ONEOK's easement. Overhead power lines or other such crossings must maintain a twenty-five (25) foot clearance above the entire breadth of ONEOK's easement, and cross as close to ninety degrees (90°) as possible. 8. Poles, guy wires, etc. cannot be located within the boundaries of ONEOK's easement. Underground Construction Requirements: 1. Crossings shall be made as close to ninety degrees (90°) to ONEOK's pipeline as possible. 2. Crossings shall be made under the existing line with a clearance of one and one-half (1.5) times the diameter of the largest pipe, but with at least two (2) feet of separation from ONEOK's pipeline. 3. A six (6) inch wide warning tape must be installed twelve (12) to eighteen (18) inches above non-metallic lines across the entire width of ONEOK's easement. (826157;8) D-3 4. Warning signs, where practical, identifying the owner, type of service, and emergency phone numbers shall be placed at each edge of the easement crossing. 5. Fiber optics cables shall be encased in non metallic conduit within ONEOK's easement. 6. Power lines must be installed in conduit, non-metallic. Also, six (6) inches of red concrete must protect the top of the conduit. The concrete may be omitted if forty-eight (48) inches of clearance is maintained. Metallic conduit may require cathodic protection. 7. Metallic pipe crossings shall have corrosion test leads installed on both pipes at their intersection. 8. Bore pits must be ten (10) feet or more from ONEOK's pipeline(s). The crossing point must be exposed at least two (2) feet deeper than the bottom of the pipeline to verify sufficient clearance of the boring tool. 9. Open trench crossings must be made across only one pipeline at a time. The trench must meet OSHA requirements. Temporary piping supports may be required. 10. Backfilling shall be performed in such a manner that the pipeline is not subjected to impact damage or excessive stresses, and no large lumps of frozen soil, rocks, gravel, or like materials shall be backfilled directly onto the pipe. No foreign substances, such as welding rods, cans, ropes, skids, brush or trees, are to be placed in any excavation on ONEOK's easement. 11. Underground alternating current (AC) electrical cables with a metallic outer sheath or bare concentric neutral installed within a twenty foot corridor, ten feet on each side of the pipeline, should be placed in an insulating conduit or jacket such as reinforced fiberglass, polyethylene or polyvinyl chloride pipe. Cables energized to 600 volts or more should cross a minimum of 3 feet below the pipeline if practical, be incased in concrete, color coded red, across the entire right-of-way width, and have external, spiral wound, neutrals grounded on each side of the right-of-way. The cable crossing should be clearly and permanently marked on each side of the right-of-way, if practical. 1826157;8) D-4