HomeMy WebLinkAboutResolution - 2010-R0356 - Property Easement - H.V. Wheeler Partnership - 08/12/2010Resolution No. 2010-RO356
August 12, 2010
Item No. 5.13
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, an Easement in connection with certain
properties in Garza County, Texas, owned by the H.V. Wheeler Partnership, a Texas
general partnership, and all related documents. Said Easement is attached hereto and
incorporated in this Resolution as if fully set forth herein and shall be included in the
minutes of the Council.
Passed by the City Council on August 12, 2010
TOM MARTIN, MAYOR
ATTEST:
,-];), 7 ---L6 - _
Rebec a Garza, City Secretary
APPROVED AS TO CONTENT:
arsha Reed. P.E., Chief Operation Officer
"o'w'rJ
Dave Booher, Right -of -Way Agent
Res -F a,ement-HV Wheeler Partnership7 30 10
Resolution No. 2010-RO356
EASEMENT
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS, THAT:
COUNTY OF GARZA §
H.V. WHEELER PARTNERSHIP, a Texas General Partnership composed of Ferrel D.
Wheeler, Valton C. Wheeler, and Wilma F. Wheeler Hill, whose address is P.O. Box 117,
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 an easement, servitude
and right-of-way through, over, under, upon, and across the land described in Exhibit "A"
(hereinafter called the "Land" ) situated in Garza County, Texas.
Pipelines and Equipment
Grantor hereby grants to Grantee the Easement to survey, construct, reconstruct, install,
upgrade, operate, inspect, maintain, alter, relocate, replace, repair, and remove within the
boundary of the herein described Easement (hereinafter called "Permitted Uses"), pipelines,
conduits, drain (blow -off) valves, valve boxes, meters, meter boxes, vents, manholes, manhole
covers, corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep
well anode stations with power supplies, flow meters, system communication lines and splice
boxes, pipeline trail road on non cultivated areas, and equipment and facilities related thereto
(hereinafter collectively called the "Pipeline System"), for and/or related to the transportation of
untreated potable water through, under, upon, over, and the Land. Such Easement shall be 60
feet wide, as described in Exhibit `B" as attached hereto (herein referred to as the "Easement" or
Easement Land"). Further, a temporary construction easement is hereby granted parallel and
adjacent to the Easement which shall be an additional 60 feet, as shown on the survey plat
attached hereto as part of Exhibit `B". The temporary Easement shall terminate upon
completion of all construction activities on the herein described Land.
Terms and Conditions
This Easement is specifically made by Grantor and accepted by Grantee subject to the
following terms, covenants, obligations and conditions:
1. Grantee may use and occupy the Easement for the sole purpose of. (a) the
right to perform Permitted Uses related to the Pipeline System; (b) the right (for men,
material, and equipment) of ingress and egress and regress to and from and access on and
along said Easement granted herein; and (c) the right to locate the Pipeline System
through, over, under, upon, across and within the Easement for the purpose of untreated
potable water transportation. Grantee shall use the Easement for the Permitted Uses and
Pipeline System and for no other purposes or uses.
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2. Grantee covenants and agrees that its use of the Easement and its
operations conducted thereon shall, to the best of Grantee's ability, at all times comply
with all applicable local, state and federal laws, orders, rules, regulations, standards,
licensing, permitting and other legal requirements including, without limitation, all
environmental laws, orders, rules, regulations, standards, licensing and permitting (the
"Legal Requirements"). Grantee agrees to construct the Pipeline System, in compliance
with all Legal Requirements, and with due care for Grantor's agricultural activities on the
Land and Grantor's adjacent property.
3. If Grantee should abandon the Pipeline System, then this Easement and
the rights herein granted shall automatically terminate and revert to, and become property
of, Grantor, its successors and assigns. Abandonment shall be irrebuttably presumed
upon the adoption of a formal resolution of Grantee's governing body that authorizes the
abandonment of the Pipeline System.
4. The "Easement Term" is hereby defined as the period of time beginning
with the granting of the Easement and continuing until such time that the Easement is
abandoned by Grantee.
5. Grantee shall at all times during the Easement Term, at Grantee's sole cost
and expense, keep and maintain the Pipeline System in good order, condition, and repair
(ordinary wear and tear excepted), and in such condition as may be required by
applicable Legal Requirements. Grantee shall keep the Easement in good order,
condition and repair following any work related to Permitted Uses on the Pipeline
System.
6. Grantee shall be responsible for obtaining all permits necessary to
construct and operate the Pipeline System on the Easement. Without limiting the
foregoing, and to the extent required, Grantee will secure and maintain any and all
environmental permits required by the Texas Commission on Environmental Quality
covering the Easement. Grantee will provide Grantor with a copy of Grantee's
environmental permit(s), if applicable, and notify Grantor of any proposed changes to
said permit(s).
7. Within the Easement, Grantee shall have the right to cut fences and install
gates to enable Permitted Uses for the Pipeline System. Before a fence is cut by Grantee,
it shall be properly supported on either side of the contemplated opening by suitable posts
and braces. Fences and gates installed by Grantee shall meet the specifications described
in, and be installed as specified in, Exhibit "C" attached hereto and made a part hereof.
8. The Pipeline System shall be so located or shall be buried at a depth of at
least sixty (60) inches below the surface of the ground. All ditches dug for such purposes
shall be double cut with subsurface soil first returned into the ditch over the pipeline and
then top soil replaced above the base soil. Any rocks brought to the surface shall be
placed back in the ditch below forty (40) inches from the surface of the ground or
removed from the Land. Grantee shall compact the soils in the pipeline ditch sufficiently
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to prevent sinking and settling, restore the contour of the Land to its original condition as
nearly as possible.
9. This grant of Easement shall not preclude the right of Grantor to fully use
and enjoy the Land, except as may be necessary for Grantee's purposes herein provided,
however, (A) no buildings, structures or reservoirs may be constructed upon the
Easement, (B) improvements (other than drip irrigation lines and overhead irrigation
equipment) may not parallel the Pipeline within the Easement Land, (C) all power lines,
metallic pipelines, and telecommunication lines hereafter installed by Grantor must cross
the Easement at no less than a 450 (forty-five degree) angle, (D) all underground power
lines and any metallic pipelines (excluding irrigation water lines and water distribution
lines used to service Grantor's property) hereafter installed by Grantor must have a
minimum separation of two feet (2') from the water pipeline and shall be installed and
constructed in accordance with generally accepted engineering practices, and (E) fences
constructed by Grantor that cross the Easement must have gates installed so that Grantee
may have access to and along the Easement at all times.
10. In case of abandonment of said Easement, as provided in Paragraph No. 3
above, the title and interest herein granted shall end, cease, and terminate, and title to the
Easement shall revert to the then owner of the Land.
11. The grant of Easement herein contained is subject to all valid and
subsisting easements, leases including oil, gas and mineral leases and wind energy leases,
and rights-of-way of record affecting the Land.
12. Abstracts or certificates of title or title insurance may be procured by the
Grantee at its expense. The expense of recording this Easement shall be borne by
Grantee. Grantor agrees to reasonably cooperate and aid Grantee, if necessary, to obtain
any curative documents needed.
13. If Grantee, in its sole discretion, determines that the Easement conveyed to
Grantee and described herein should be acquired by judicial procedure, either to procure
a safe title or for any other reason, then Grantor and Grantee hereby stipulate that the
ultimate award to the Grantor for the Easement granted to Grantee and described herein,
shall be the same as the consideration hereinafter stated in Paragraph No. 14.
14. As consideration for the grant of this Easement, Grantee agrees to pay
Grantor a sum equal to Eighty-five Dollars ($85.00) per rod multiplied by the number of
rods, and/or fractions thereof, for the length of the Easement crossing the Land. It is
agreed that should Grantor own an interest in the Easement Land that is less than the
entire fee simple estate, then the consideration to be paid shall be reduced
proportionately.
15. Upon completion of construction, Grantee shall (i) remove all rock,
gravel, caliche, or other materials foreign to the natural condition of the Land that may be
brought to the surface or placed on the Land by Grantee; (ii) level and fill with top soil all
H.V. Wheeler Partnership -- Pipeline Easement Agreement 3
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holes, ruts, or other surface disturbances in such a manner as to restore same to the
natural contour of the surrounding property; (iii) clean the area to the end that all objects,
materials, and structures foreign to the natural condition of the Land are removed and
eliminated; (iv) in the event any of surface disturbance on grassland, Grantee shall plant a
seed mix of grass and forbes in the area of such disturbance and re-establish grass cover;
and (v) otherwise restore the surface of any portion of the Land that may be disturbed by
Grantee's activities to its original condition as nearly as reasonably possible.
16. After completion of construction, and except in cases of emergency,
maintenance or repair, on cultivated land, vehicular ingress, egress and regress shall be
permitted in, but limited to, the use of then -existing roadways and turn rows Grantor has
on his property.
17. Grantee, at its sole cost and expense, shall repair or replace in good and
workmanlike manner any underground lines or other improvements of any kind that it
may damage during construction, maintenance, or removal of its pipelines.
18. Grantee agrees that, except as may be reflected in Exhibit "D" attached
hereto, no above ground equipment and/or facilities related to the Pipeline System shall
be installed, constructed, or otherwise located on cultivated ground located within the
Easement. Grantee further agrees any future installation, construction, and location of
such equipment and/or facilities shall be limited to the boundary lines of the Land or
along turn -rows existing as of the date hereof.
19. Grantee shall not permit any of its employees, contractors, subcontractors,
agents, or other third parties acting on behalf of Grantee who may enter upon the Land
under the authority of this grant to (i) bring upon the Land any alcoholic beverage or
illegal drugs, or (ii) to hunt on any portion of the Land or to take or carry any firearms
thereon for any purpose whatsoever. Grantor, or Grantor's representatives, shall have the
right to deny access or to expel from the Premises anyone carrying any such prohibited
substances or any form of firearm.
20. "Grantee" when used in this instrument, shall include The City of
Lubbock's officers, agents, servants, employees, representatives, contractors,
independent contractors, subcontractors, invitees, and/or their equipment or vehicles.
21. Words of any gender used in this agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to include the
plural, and vice versa, unless the context requires otherwise.
22. A dispute related to claims for damages accruing under the terms hereof
shall not be cause for the termination of the easement and/or any rights granted
hereunder.
23. TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTEE
HEREBY RELEASES AND AGREES TO HOLD HARMLESS AND DEFEND
H.V. Wheeler Partnership -- Pipeline Easement Agreement 4
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GRANTOR FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
CAUSES OF ACTION, SUITS, LOSSES, DAMAGES (INCLUDING PUNITIVE
DAMAGES), COSTS, FINES, PENALTIES, AND EXPENSES OF ANY NATURE
WHATSOEVER (INCLUDING WITHOUT LIMITATION REASONABLE
ATTORNEY'S FEES, COSTS, AND EXPENSES INCURRED IN
INVESTIGATING AND DEFENDING AGAINST THE ASSERTION OF
LIABILITY, AS SUCH FEES, COSTS, AND EXPENSES ARE INCURRED)
WHICH MAY BE SUSTAINED, SUFFERED, OR INCURRED BY GRANTOR,
ARISING FROM GRANTEE'S ACTIVITIES OR OPERATIONS UPON THE
HEREIN DESCRIBED LAND, TO THE EXTENT CAUSED BY GRANTEE.
SUCH OBLIGATION TO HOLD HARMLESS AND DEFEND SHALL,
WITHOUT LIMITATION, COVER BODILY INJURY, DEATH, DAMAGE TO
PROPERTY OR NATURAL RESOURCES, AND COMPLIANCE WITH ANY
GOVERNMENTAL RULE, REGULATION, ORDER, DIRECTIVE, OR
DEMAND REGARDING THE TESTING FOR, MONITORING, CLEAN UP,
REMEDIATION, OR REMOVAL OF ANY CONTAMINANTS, POLLUTANTS,
HAZARDOUS MATERIALS, OR OTHER TOXIC SUBSTANCES. NOTHING IN
THIS PARAGRAPH OR IN THE EASEMENT AGREEMENT SHALL BE
CONSTRUED AS A WAIVER OF ANY DEFENSES WHATSOEVER THAT
GRANTEE (THE CITY OF LUBBOCK) MAY HAVE UNDER ANY LAW,
INCLUDING BUT NOT LIMITED TO ANY DEFENSES OR LIMITATIONS
CONTAINED IN THE TEXAS TORT CLAIMS ACT OR ITS SUCCESSOR
PROVISIONS. GRANTEE RESERVES ALL DEFENSES AND LIMITATIONS
TO WHICH IT IS ENTITLED UNDER ANY AND ALL APPLICABLE LAWS.
24. It is understood and agreed that this Easement is not a conveyance of the
fee estate for any of the Land covered hereunder, but is only an easement through, over,
under, upon, and across the herein described Land.
25. The provisions of this Easement shall be binding upon and inure to the
benefit of the successors and assigns of the respective parties hereto.
26. This Easement contains the final and complete expression of the parties
with respect to any matter mentioned herein. No prior agreement or understanding
pertaining to any such matter shall be effective. This Easement may be modified in
writing only, signed by the parties in interest at the time of the modification.
27. In case any one or more of the provisions contained in this Easement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions hereof, and
this Easement shall be construed as if such invalid, illegal or unenforceable provisions
had never been contained herein.
28. Any notices or demands provided to be given herein by the parties shall be
in writing and mailed by certified or registered mail to the other party at the address set
forth above. Any notice or demand shall be deemed to have been received the earlier of
H.V. Wheeler Partnership -- Pipeline Easement Agreement 5
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five (5) days after the date of mailing or the date of actual delivery as shown by the
addressee's certification or registry receipt.
29. Grantor will not construct any facilities or perform any activities within
the Easement that may violate federal and state regulations regarding the protection of
drinking water supplies and facilities that convey such water. However, this restriction
shall not preclude Grantor, or its successors and assigns, from applying on and/or around
the Easement Land such fertilizers, herbicides, pesticides, or other chemicals approved by
the United States Environmental Protection Agency. Grantor and Grantee hereby give
notice to any subsequent mineral, water, wind or energy lessee or grantee of any interest
overlying or underlying the Easement, that Grantee will be operating the Pipeline System
within the Easement boundary in accordance with the Permitted Uses as defined herein.
To the extent that Grantor owns any mineral and/or royalty interest in and under the
Easement, Grantor waives and surrenders its rights to use the surface of the Easement for
the exploration and development of the mineral estate and/or the construction of surface
facilities related to the development of wind energy generation or production.
30. Grantee shall have the right to approve the location and means of future
third -party pipelines which will cross Grantee's pipeline system. Grantee will not
withhold reasonable crossing requests, but will act in a manner to protect Grantee's
pipeline system.
TO HAVE AND TO HOLD said Easement unto Grantee, its successors and
assigns for so long as the same shall be used for the purposes aforesaid subject to the
terms and conditions hereof.
EXECUTED this 27th day of July, 2010 ("Effective Date").
[ Signatures of the Parties on Next Page ]
H.V. Wheeler Partnership -- Pipeline Easement Agreement 6
DocID 146331 v.1
GRANTOR:
H.V. WHEELER PARTNERSHIP, a Texas General
Partnership
BY r
FERREL D. WHEELER, Partner
By: 4 a.
VALTON C. WHEELER, Partner
By: cl-;�
WILMA F. WHEELER HILL, Partner
GRANTEE:
The City of Lubbock
ATTEST: Ey' /; %��
TOM MARTIN, Mayor
Rebecca Garza, City Secretar
APPROVED AS TO CONTENT:
n1l j Le
Marsha Reed
Chief Operations Officer
APPROVED AS TO FORM:
H.V. Wheeler Partnership -- Pipeline Easement Agreement 7
DoclD 146331 v.1
Exhibits: A - Description of Grantor Property
B - Metes and Bounds Description and Survey Plat of Pipeline System
C - Gate Construction Detail and Specifications
D - Drawing of Above Ground Improvements
H.V. Wheeler Partnership -- Pipeline Easement Agreement
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{Acknowledgements}
STATE OF TEXAS
COUNTY OF LUBBOCK
This instrument was acknowledged before me on 27th day of July, 2010, by FERREL D.
WHEELER, Partner of the H.V. WHEELER PARTNERSHIP, a Texas general partnership, on
behalf of said partnership.
Notary's Seal, Printed Name,
and Expiration of Commission
CHARLOTTE CD04-19-2013
' Notary Public, Stat
My Commission Expir
STATE OF TEXAS
COUNTY OF LUBBOCK
This instrument was acknowledged before me on 27th day of July, 2010, by VALTON C.
WHEELER, Partner of the H.V. WHEELER PARTNERSHIP, a Texas general partnership, on
behalf of said partnership.
Notary's Seal, Printed Name,
and Expiration of Commission
CHARLOTTE CUMMINGS
Notary Public, State of Texas
s,
OF .,v5 My Commission Expires 04 -lo. -2013
H.V. Wheeler Partnership -- Pipeline Easement Agreement 4
DocID 146331 vA
STATE OF TEXAS
COUNTY OF LUBBOCK
This instrument was acknowledged before me on 27th day of July, 2010, by WILMA F.
WHEELER HILL, Partner of the H.V. WHEELER PARTNERSHIP, a Texas general
partnership, on behalf of said partnership.
Notary's Seal, Printed Name,
and Expiration of Commission
* CHARLOTTE CUMMIN etNotary Public, State of Texas 5 ic, State
o My Commission Expires 04.19.2013
STATE OF TEXAS §
COUNTY OF LUBBOCK § (nqi
This instrument was acknowledged before me on the day of
2010, by TOM MARTIN, Mayor of THE CITY OF LUBBOCK.
Notary's Seal, Printed Name,
and Expiration of Commission
4 ELISA SANCHEZ
Notary Public, State of Texas
a v
My Commission Expires 11-07.2011
of
H V. Wheeler Partnership -- Pipeline Easement Agreement
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&,15�
,,
�s T-�4
Notary Public, State of Texas
10
Resolution No. 2010-RO356
Exhibit "A"
Description of Grantor Property
269.2 acres of land more or less, out of Survey 1259, Certificate No. 169, John H.
Gibson, Abstract No. 309, Garza County, Texas, and being the same land
described in that certain General Warrant Deed dated August 25, 2008, from
Maxine J. Wood, as Grantor, to H.V. Wheeler Partnership, as Grantee, recorded
in Book 299, Page 327, Deed Records of Garza County, Texas.
H.V. Wheeler Partnership -- Pipeline Easement Agreement 11
DocID 146331 v.l
Resolution No. 2010-RO356
Exhibit "B"
Metes and Bounds Description of Easement
and Survey Plat
PARCEL NO. 35
N.V. WHEELER PARTNERSHIP
Field Notes desalbfna the centerline of a Sbdy-foot (6DJ wide permanent pipefhte easement being
16cated In a 269.2 acre tract of land out of Section 1259, J. K. Gibson Survey, Garry county, Tom
and sold pipeline centerline'being described as fbilowst
Seginntng at a rk" iron rod with. cap, set on the West right of way tine of a sixty -bot county road, for
the beginning of this description, tmm whance a 4'x4" concrete monument found far the Southeast
comer of Sectt6n 1259, bears South 88001'16" East, a distance of 30,00 feet and South i-59'18'
West, a distance of 515.59 feet; said point of beginning having a project coordinate or
717744J.46 and X - 1040522.84;
Thence along the arc -of a curve- to the left and being the centerifne of sold Sixty -Foot (60� wide
permanent pipeline easement, an arc stance of 57.04 feet fo a point for the ind of this curve, said
curve having a radius of 575,00 feet and a delta angle of 5041102";
Thence Horth 68°05'46' WeA, alorig the centerilne or said Sixty -.Foot (601 wide permanent pipeline
easement, a distance of 271.66 feet to the beglrining of a curve to the right;
Thence along the arc of a curve to the right and being the centerilne of said. Sixty -Foot (60, wide
permanent pipeline easement, an arc distance of 172.47 feet to a point for the and of this curve, said
curve having a radius of 575.00 feet and a delta angle of 17011'08';
Thence North 50054136" West, along the centerilne of said Sixty -Foot (601) wide permanent pipeline
easement, a distance of 2687.92 feet to the beginning ora curve to the left;
Thence along the art of a curve to the left and being the cenbeolne of Said Sbcty"foot (601 wide
permanent pipeline -easement, Bir arc distance of 10,99 That to a 'h' Iran rod with cap, set on the East
line of a 100 acre tract as described In Volume 251, Page 1041, Deed Records of Garza County, Texas,
for the end of this description, said curie having a radius of 575.00 fleet and a delta anple of 100514211,
whence a B"x8' concrete monument found for the center corner of Section 1259, bears North lagii%5'
Fast, a distance of 301.64 feet.
Containing 193.94 rods. (4.41 acres)
The above described sixty foot (601 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 said tainporary construction
epserttent contains 4.41 acres of land. The said temporary eonsfavcHoo easement shall expire as noted
In th® easement agreement.
HIGH-TECH LAND AND GPSSDRVEYORS, INC
3330.70rb St, Sudw 202. LOW* Texas 79413
(806) 788-0020 • Fax (806) 792-1646
H.V. Wheeler Partnership -- Pipeline Easement Agreement 12
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Notes:
1. A survey plat aP even survey date herewith accompanies this legal description.
2. Surveyed on the ground March -May, 2009.
3. Bearings shown arc 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
H.V. Wheeler Partnership -- Pipeline Easement Agreement 13
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Resolution No. 2010-RO356
H.V. Wheeler Partnership -- Pipeline Easement Agreement 14
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3' UA)
'gg
Resolution No. 2010-RO356
Exhibit "C"
Gate Construction Detail and Specifications
IN
H.V. Wheeler Partnership -- Pipeline Easement Agreement 15
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F
Resolution No. 2010-RO356
Exhibit "D"
Drawing of Above Ground Improvements
H.V. Wheeler Partnership -- Pipeline Easement Agreement 16
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H.V. Wheeler Partnership -- Pipeline Easement Agreement 17
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