HomeMy WebLinkAboutResolution - 2010-R0499 - Property Easement - Gaylon And Barbara Buxkemper - 10/14/2010,Resolution No. 2010-RO499
October 14, 2010
Item No. 5.12
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, an Easement in connection with certain
properties located in Lynn County, Texas, owned by Gaylon Buxkemper, and wife,
Barbara Buxkemper, 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
ATTEST:
Rebecca Garza, City
APPROVED AS TO CONTENT:
October 14, 2010
Marsha Reed, P.E., Chief Operation Officer
Dave Booher, Right -of -Way Agent
(APPROVED AS TO
ttorney
Lasement-Buxkemper 10 4 10
TOM MARTIN, MAYOR
Retu�n: West Texas Title Company, 8001 Quaker, Suite E, Lubbock, Texas 79424 31021nef
� `� � • Co�atract: 9799
' i� 2 0 �. � ' � � � �
Resolution No. 2010-R0499
STATE OF TEXAS
COUNTY OF LYNN
EASEMENT
KNOW ALL MEN BY THESE PRESENTS, THAT:
GAYLON BUXKEMPER and wife, BARBARA BUXKEMPER, whose address is 2551
CR 2, Slaton, TX 79364 (hereinafter referred to as the "Grantor" whether one or more) for a
valuable consideration, to it paid by THE CITY OF LUBBOCK, Texas (the "Grantee") with
offices at 1625 13�h Street, Lubbock, Texas 79401, the receipt and sufficiency of which are
hereby acknowledged, has granted and does by these presents grant unto Grantee an easement,
servitude and right-of-way through, over, under, upon, and across the land described in Exhibit
"A" (hereinafter called the "Land" ) situated in Lynn County, Texas.
Pipelines and Equipment
Grantor hereby grants to Grantee the Easement to survey, construct, reconstruct, install,
upgrade, operate, inspect, maintain, alter, relocate, replace, repair, and remove within the ,
boundary of the herein described Easement (hereinafter called "Permitted Uses"), pipelines, �
conduits, drain (blow-of� valves, valve boxes, meters, meter boxes, vents, manholes, manhole
covers, corrosion monitoring test stations, pipeline markers, fence gates, impressed current deep s�
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 F--�
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
Gaylon Buxkemper -- Pipeline Easement Agreement 2
DoclD 151460 v.l
to prevent sinking and settling, restore the contour of the Land to its original condition as
nearly as possible.
9. This grant of Easement shall not preclude the right of Grantor to fully use
and enjoy the Land, except as may be necessary for Grantee's purposes herein provided,
however, (A) no buildings, structures or reservoirs may be constructed upon the
Easement, (B) improvements (other than drip irrigation lines and overhead irrigation
equipment) may not parallel the Pipeline within the Easement Land, (C) all power lines,
metallic pipelines, and telecommunication lines hereafter installed by Grantor must cross
the Easement at no less than a 45° (forty-five degree) angle, (D) all underground power
lines and any metallic pipelines (excluding irrigation water lines and water distribution
lines used to service Grantor's property) hereafter installed by Grantor must have a
minimum separation of two feet (2') from the water pipeline and shall be installed and
constructed in accordance with generally accepted engineering practices, and (E) fences
constructed by Grantor that cross the Easement must have gates installed so that Grantee
may have access to and along the Easement at all times.
10. In case of abandonment of said Easement, as provided in Paragraph No. 3
above, the title and interest herein granted shall end, cease, and terminate, and title to the
Easement shall revert to the then owner of the Land.
11. The grant of Easement herein contained is subject to all valid and
subsisting easements, leases including oil, gas and mineral leases and wind energy leases,
and rights-of-way of record affecting the Land.
12. Abstracts or certificates of title or title insurance may be procured by the
Grantee at its expense. The expense of recording this Easement shall be borne by
Grantee. Grantor agrees to reasonably cooperate and aid Grantee, if necessary, to obtain
any curative documents needed.
13. If Grantee, in its sole discretion, determines that the Easement conveyed to
Grantee and described herein should be acquired by judicial procedure, either to procure
a safe title or for any other reason, then Grantor and Grantee hereby stipulate that the
ultimate award to the Grantor for the Easement granted to Grantee and described herein,
shall be the same as the consideration hereinafter stated in Paragraph No. 14.
14. As consideration for the grant of this Easement, Grantee agrees to pay
Grantor a sum equal to Eighty-five Dollars ($85.00) per rod multiplied by the number of
rods, and/or fractions thereof, for the length of the Easement crossing the Land. It is
agreed that should Grantor own an interest in the Easement Land that is less than the
entire fee simple estate, then the consideration to be paid shall be reduced
proportionately.
15. Upon completion of construction, Grantee shall (i) remove all rock,
gravel, caliche, or other materials foreign to the natural condition of the Land that may be
brought to the surface or placed on the Land by Grantee; (ii) level and fill with top soil all
Gaylon Buxkemper -- Pipeline Easement Agreement
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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
Gaylon Buxkemper -- Pipeline Easement Agreement 4
DocID 151460 v.I
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
Gaylon Buxkemper -- Pipeline Easement Agreement 5
DocID 151460 v.1
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 1St day of October, 2010 ("Effective Date").
[ Signatures of the Parties on Next Page ]
Gaylon Buxkemper -- Pipeline Easement Agreement 6
DocID 151460 v.I
EWE
I��.
ff,-
&a &l�i�
B,4,V,V..4RAj3UXKMPER
GRANTEE:
THE CITY OF LUBBOCK
By:
ATTEST: TOM MARTIN, Mayor
le4
Rebecca Garza, City Seere
APPROVED AS TO CONTENT:
rAa'A'�! &d
Marsha Reed
Chief Operations Officer
APPROVED AS TO FORM:
Terry Gr tham
Attorne
Gaylon Buxkemper -- Pipeline Easement Agreement
Doc[D 151460 v.1
STATE OF TEXAS
COUNTY OF LUBBOCK
{Acknowledgements}
0
E
This instrument was acknowledged before me on the J -L day of October, 2010, by
GAYLON BUXKEMPER.
Notary's Seal, Printed Name,
and Expiration of Commission:
T
EULANE TAYLOR
Notary Public, State of Texas
01 My Commission Expires 11-17.2013
STATE OF TEXAS §
COUNTY OF LUBBOCK §
otary Public, State of Te s
This instrument was acknowledged before me on the 4� day of October, 2010, by
BARBARA BUXKEMPER.
Notary's Seal, Printed Name,
and Expiration of Commission:
(ED,
EULANE TAYLOR
Notary Public, State of Texasy Commission Expires 11-17-2013
--np
STATE OF TEXAS §
COUNTY OF LUBBOCK §
Notary Public, State of as
r
This instrument was acknowledged before me on the 15 day of �JP✓' ,
2010, by TOM MARTIN, Mayor of THE CITY OF LUBBOCK.
Notary's Seal, Printed Name,
and i on:
�Y ELISA SANCHEZ
/lJ 4Notary Public, Stateo; 07.2011
My CommWonExp �
s -k emper -- Pipeline Easement Agreement
DocID 151460 v.l
Notary Public, State of Texas
0
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
Gaylon Buxkemper -- Pipeline Easement Agreement
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Resolution No. 2010-RO499
Exhibit "A"
Description of Grantor Property
100 acres of land, more or less, out of Section 2, Block O, D&W RR. Co. Survey,
Lynn County, Texas, and being the same land conveyed to L.W. Simmons by Roy
Cox, et ux, by Warranty Deed dated January 3, 1940, recorded in Volume 69,
Page 332, Deed Records of Lynn County, Texas
Gaylon Buxkemper -- Pipeline Easement Agreement 10
DocID 151460 v.I
Resolution No. 2010—RO499
Exhibit "B"
Metes and Bounds Description of Easement
and Survey Plat
Fane 1 of 2
PARCEL NO. 58
GAYLON BUXKEMPER
Field Notes describing the centerline of a Sixty -Foot (601 wide permanent pipeline easement being
located in Section ?-, Block O, D & W. R.R. Survey, Lynn County, Texas and said pipeline centeriine
being described as follows:
Beginning at a W Iron rod with cap, set in the East line of said Section 2, Block O, for the beginning
of this description and on of a curve to the right, from whence a W rod found for the Southeast
comer of said Section 2, Block O, bears South 1923'17" West, a distance of 584.70 feet, said point of
beginning having a project coordinate of Y =.7205159.48 and X = 1001122.72, -
Thence along the arc of a curve to the right and being along the centerline of said Sixty -Foot (60�
wide permanent pipeline easement, an arc distance of 107.02 feet to a point for the end of this curve,
said curve having a radius of 3850.00 feet and delta angle of 103533';
Thence North 53024'11" West, along the centerline of said Sixty -Foot (601 wide permanent pipeline
easement, a distance of 1584.77 feet to the beginning of a curve to the left;
Thence along the arc of a curve to the left and being along the centeriine of said Sixty -Foot (601 wide
permanent pipeline easement, an arc distance of 170.70 feet to a W" rod with cap set for the end of
this description, said curve having a radius of 3850.00 feet and delta angle of 203275", whence a W"
rod found for the Southeast comer of said Section 2, Block O, bears South 88930'16" East, a distance
of 1524.89 feet and South 1023'17' West, a distance of 1651.3 feet.
Containing 112.88 rods..(2.57 acres)
The above described sixty fogt (60,) wide permanent pipeline easement Is also suWect to a sixty foot
(607 wide temporary construction easement being parallel and adjacent to sold permanent pipeline
easement, looted and shown on the ftcompanying survey plat and said temporary construction
easement contains 2.37 acnes of land. The said terhporary construcflon easement shall expire as noted
in the easement agreement.
HIGH-TECHLEM&M GFSfURVEY0RS; INC
3330 70th St., Suite 202.• Lubboci4' 7bxatr 79413.
(806) 788-0020 • Fax (806) 7921646
Gaylon Buxkemper -- Pipeline Easement Agreement 1 1
DocID 151460 v.I
Page 2 of 2
Notes:
1. A survey plat of even survey date herewith accompanies this legal description.
2. Surveyed on the ground March -May, 2009.
3. Bearings shown are grid beatings based on the Texas State Plane Coordinate System, Texas North
Central Zone, Nad83 Datum.
4. All distance shown are surface distances.
5. Surface adjustment factor for entire proftLts 1.0002396
Date: -9 - 3 _Q�'
Gaylon Buxkemper -- Pipeline Easement Agreement 12
DocID 151460 v.I
SEGt I ON 2, 01.OGK 0
19. � W. K- R. G0. SUKV6Y
Geo. H. Harlan
LN
l. 594 Pg.593 fOr�' & B04 Harlon
V01- 1094 Pg. 37
LUBBOCK C
LYNN .._.•._.._.._...._......_.._.._.._.._.._..6p..,
COU r52veq
88° 30'16" W S 88° 30'1fi" E
Tnon nn.
MY.- PIPES
VO%351 Pg.
\k o \
41A 60'Parnanenl Eat-
Ot QOi lxJ l58
t� �a ;n Golktn Buxkl3alper 6,0' Tr mpprory�
F N Va.318 Pg. 56 CIMsl, snd.
s - rm0nien sift. 237 Az
Z 12.57 AG- PermoneM Esm/J
12EEO P.0
100.4 AG. z=mon
S 880 29'53" E 2639.8'
M1#01? M. Plwonko
V01 ?2-3 Pg. -927
• • Set I/z" Rod With Cop
A legal description of even survey dote herewith
accompanies this survey plot.
Surveyed on the arm=d tdorsh-Mov. 2009 aha. CENTS LM
Date: -3f. "ice k
•n..a•°oainw000aa.
AIINorihings and Eostings shown are
and may be converted to Texas Sia
North Central Zone, NAD83 by dividing
adjustment factor of 1.0002396
Ali distances shown ore surface distances.
Bearings shown ore grid bearings based on the Texas
State Plone Coordinate System, North Central Zone,
NAD83 Datum.
This survey and ollnformiribn hereon is for the exchuive ase of
CITY OF LUBBOCK
end sholnot be copied or used except for The purpose for which
It is expressly 1wrished. this drowirg and olcopies (pmCnlor
complete) sholbe returned to the owner upon demow.
Gaylon Buxkemper -- Pipeline Easement Agreement
DocID 151460 v.I
13
Resolution No. 2010-RO499
r,
�Fmyo" PIPE
M//lon M. Plwonka
V01.338 Pg. 340
M Vol. 81 Pg. 53
in
W N
W
va
m -um U16 is PS 92MIL
l77019e� ST.:IrsE 20! • sl®Oa�Ts.TPsq
dw Tii•s07p • rig am Tel•ses
Resolution No. 2010-RO499
Exhibit "C"
Gate Construction Detail and Specifications
Gaylon Buxkemper -- Pipeline Easement Agreement 14
DocID 151460 v.I
Resolution No. 2010-RO499
—1. M (In
Gaylon Buxkemper -- Pipeline Easement Agreement 16
DocID 151460 v.l
em or w8ew.
�"`,". o LAKE ALAN HENRY WARTEERC SUPPLY PROJECTCat4T
• �
° PIAN ANO PPOrILE
w
STA. 423+00 TO STA. 448+00
Gaylon Buxkemper -- Pipeline Easement Agreement 16
DocID 151460 v.l
Resolution No. 2010-RO499
Exhibit "D"
Drawing of Above Ground Improvements
Gaylon Buxkemper -- Pipeline Easement Agreement 15
DocID 151460 v.I
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