Loading...
HomeMy WebLinkAboutResolution - 2282 - Settlement Agreement-Johnson Cattle Company Et Al-Justiceburg Reservoir Project - 04_03_1986RESOLUTION #2282 Agenda Item #4 April 3, 1986 JPB:js RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Settlement Agreement by and between the City of Lubbock, Mr. Sidney Johnson, Individ- ually, d/b/a Johnson Cattle Company and as Trustee for the Estate of Mrs. Weldon Johnson, deceased, Mr. Weldon Clay Johnson, Ms. Vicky Lee Johnson, and Convest Energy Corporation; a Memorandum of Agreement by and between the City of Lubbock, Mr. & Mrs. Billy Wayne Williams, Mr. & Mrs. Billy Huddleston, Mr. & Mrs. John Ward, Mr. & Mrs. John Reed, Mr. & Mrs. J. W. Headstream, Mr. & Mrs. Jim Boren, Mr. & Mrs. John Boren, Mr. & Mrs. Walter Boren; and a Ratification of Memorandum of Agreement and Settlement, Assumption and Release by and between the City of Lubbock and Mildred Boren Wood, attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as fully copied herein in detail. Passed by the City Council this 3rd AT y APPROVED AS TO CONTENT: G , am Wahl, Director of Water Utilities APPROVED AS TO FORM: James f . Brewster, U1v Attorney day of April , 1986. I�Ll IZL ALAK HENRY, M YOR Dated: April 3, 1986 MEMORANDUM OF AGREEMENT RECITALS A. The City of Lubbock, Texas ("City") desires to construct the Justiceburg Reservoir Project to provide a municipal water supply for the City. B. The City of Lubbock, Texas, has obtained a Texas Water Code § 11.121 Permit No. 4146 (the "Permit") from the Texas Water Commission ("Commission") to construct the proposed Justiceburg Reservoir Project on the South Fork of the Double Mountain Fork of the Brazos River in Garza and Kent Counties, Texas, and the White River Municipal Water District ("District") has obtained extensions of time on its permit to construct the proposed Post Reservoir on the North Fork of the Double Mountain Fork of the Brazos River in Garza County, Texas. The City may contract to obtain additional municipal water supply from the proposed Post Reservoir Project. C. Mr. and Mrs. Billy Wayne Williams, Mr. and Mrs. Billy Huddleston, Mr. and Mrs. John Ward, Mr. and Mrs. John Reed, Mr. and Mrs. J.W. Headstream, Mr. and Mrs. Jim Boren, Mr. and Mrs. John Boren, Jr. and Mrs. Walter Boren ('Landowners") and Convest Energy Corporation ("Convest") are appealing the grant of the permit by the Commission to the City to construct the proposed Justiceburg Reservoir in Cause No. 369,838, Mr. and Mrs. Billy Wayne Williams, et al. vs. Texas Department of Water Resources, et al., pending in the 126th Judicial District Court of Texas County, Texas. D. Mr. and Mrs. Billy Wayne Williams, Mr. and Mrs. Billy Huddleston, Mr. and Mrs. John Ward, Mr. and Mrs. John Reed, Mr. and Mrs. J.W. Headstream, Mr. and Mrs. Jim Boren, Mr. and Mrs. John Boren, Mr. and Mrs. Walter Boren ("Landowners"), Convest Energy Corporation ("Convest"), Mr. Sidney Johnson, individually, d/b/a Johnson Cattle Company and as Trustee for the Estate of Mr. Weldon Johnson, deceased, and as Trustee for the Estate of Mrs. Weldon Johnson, deceased, Mr. Weldon Clay C-XMI951! IIA 11 S Johnson and Ms. Vicky_.Lee Johnson ("Johnson"), have appealed the decision of the Commission to grant extensions of time for the District to construct the Post Reservoir in both Cause No. 346,496, Mr. and Mrs. Billy Wayne Williams, et al. V. Texas Department of Water Resources, et al., pending in the 299th Judicial District Court of Travis County, Texas, and Cause No. 374,346, Mr. and Mrs. Billy Wayne Williams, et al. v. Texas Department of Water Resources, et al., pending in the 53rd Judicial District Court of Travis County, Texas. E. All of the parties desire to settle the three above -mentioned lawsuits. AGREEMENT The Parties hereto, intending to be legally bound hereby, hereby undertake, covenant, and agree that the settlement is effective subject to the terms, conditions and provisions set forth below: I. Upon signing of this Agreement by the Parties hereto, the City will pay to the firm of Graves, Dougherty, Hearon & Moody, Trustee for Landowners, Convest and Johnson (collectively referred to as "Protestants') the total amount of attorneys' fees and expenses and consultant fees and expenses of not to exceed the sum of $425,000.00, incurred in their prosecution of the protest to the Application of the City of Lubbock for a water permit to construct the Justiceburg Reservoir and the Applications of the White River Municipal Water District to obtain extensions of time to construct the Post Reservoir and any appeals from the decision of the Texas Water Commission granting such permits or extensions. Prior to the date of contract of sale as provided in Section VII, the City will satisfy itself as to the ownership by Landowners of the property necessary to the full accomplishment of the terms of this Agreement and Landowners will cooperate with City in that regard. 2 II. Upon payment of the amounts described in section I above, the Landowners will allow the City and their consultants reasonable access, without cost, to the property of Landowners in and about the proposed Justiceburg Reservoir site in order to conduct additional tests and perform additional geotechnical evaluations to ascertain the design of the proposed Justiceburg Reservoir project. These tests are to be completed within twelve (12) months after the date of payment of the amounts described in section I above. If, after the tests and evaluations described herein are conducted, the City in its sole discretion elects to proceed with the proposed Justiceburg Reservoir Project, the City will, within fifteen (15) months after the date of payment of the amounts described in section I above, by written communication to the attorneys for Protestants, advise the Protestants that the project is feasible and will, within eighteen (18) months after the date of payment of the amounts described in section I above, employ consulting engineers for the final design of the proposed Justiceburg Reservoir project, and, within thirty (30) months after the date of payment of the amounts described in section I above, present to Protestants an estimate of the amount of acreage required to complete the project, exclusive of the land requirements necessary to satisfy the conditions of the Section 404 Permit. III. The final design of the proposed Justiceburg dam and reservoir shall, as nearly as possible, provide that the service road and power lines follow property boundaries to the pump station and dam site. The Landowners, when necessary, will provide the City easements described by metes and bounds for one or more water pipelines, electric transmission lines and communication lines from the pump station across their property, together with temporary construction easements to construct and install water pipelines, electric transmission lines and communication lines, the pump house, dam, reservoir and other facilities required by City to complete the Justiceburg Project. The Landowners will be compensated by City at the rate of $20.00 per rod per sixty (60') foot width for all such permanent and temporary easements, which compensation shall be paid in cash at the time such easements are granted. Landowners, when necessary, shall provide the City, without cost, an easement for a service road to be fenced and constructed by the City, at the City's sole expense, which shall be an all-weather road fenced on both sides and accessible to the City and Landowners whose land immediately adjoins the road. Landowners shall maintain the fences after construction and the City shall maintain the service road. This road shall not be accessible to the public nor dedicated as a public roadway. IV. In the event that City, in its discretion, determines to construct the Justiceburg Reservoir as contemplated by this Agreement and does construct such facility, then and only then the City will grant to the Landowners Reed, Ward, and Huddleston, one tap each to allow use of the raw water in the pipeline(s) for such Landowners' domestic and normal ranching livestock consumption on Landowners' property. No warranty will be given as to the quality or the availability of water from the pipeline(s). The Landowners will provide a recording meter at each tap to measure the volume of water taken which shall be limited to twenty (20) acre feet per year per tap. The City shall have reasonable access to each tap and meter for the purpose of calibrating the same from time to time. The Landowners shall own the land down to the normal operating level of the lake which is defined as 2220 feet above mean sea level, except in the limited area where additional land is required for the location of the dam itself, the spillway discharge channel, the emergency spillway, borrow areas as needed, public access areas, unusable land, pump stations, the service road, the dam abutments, and access between the pump station and the dam structure, and any land actually required for construction and/or operation of the dam, the pump station and other necessary facilities associated with the reservoir. In addition, without further compensation, the City, upon reasonable notice to Landowners, shall be granted temporary access to points on the shore of the lake for reasonable purposes necessary during construction and subsequent operation of the dam and reservoir. The Landowners and the City or its employees, agents and contractors, in the performance of their official duties with the City, shall have the exclusive right to use land below the normal operating level of the lake at times when the lake is below normal operating level, except areas between the water line and unusable land and public access areas. At such times, Landowners may use such land for livestock grazing and for their personal recreational uses. Landowners shall have no right however to build, place or erect any structure or facility within such areas. The Landowners shall provide the City, without cost, a restrictive easement and flood easement from elevation 2220 feet above mean sea level to elevation 2245 feet above mean sea level, which easement shall provide City (a) the right to intermittently overflow, flood or cover such land, at any time with flood, slack or backwater created by construction, maintenance and operation by City of Justiceburg Dam and the Reservoir and for the storage of water created by the construction of the Dam; (b) the right to enter upon said land, with due notice and without loitering, to clear, destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth or any other thing which would in any way interfere with 5 the construction, maintenance and operation of such dam and reservoir or tend to render the same unsafe or unsanitary and to prevent the drainage or dumping of refuse, sewage or other material into such reservoir and to carry out an adequate program of pollution control; and (c) the right to prevent the construction of, or the removal, with due notice, of any structure or facility located or to be located on said land. The Landowners shall also impose, without cost to the City, a restrictive easement on such portion of their land which is between elevation 2245 feet above mean sea level and 300 feet horizontal distance from elevation 2220 feet above mean sea level if the 300 feet horizontal distance contains a larger area of land than is contained between elevations 2220 feet and 2245 feet above mean sea level, which easement shall provide the City (a) the right to enter upon said land, with due notice and without loitering, to clear, destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth, or any other thing which would in any way interfere with construction, maintenance and operation of such dam or reservoir or tend to render the same unsafe or unsanitary, and to prevent the drainage or dumping of refuse, sewage or any other material into such reservoir and to carry out an adequate program of pollution control; and (b) the right to prevent the construction of, or the removal of, with due notice, any structure or facility located or to be located on said land. Structures and facilities are defined as waterwells, septic systems, cesspools, barns, sheds, places of habitation, and boat docks, but shall not include pens, gates, fences, cattleguards or boat ramps. All structures constructed and maintained by the Landowners shall be at the Landowners risk with regard to flooding by the City's reservoir. Each Landowner shall have the right to construct two boat ramps, which shall comply with applicable regulations imposed by the United States Army Corps of Engineers for the construction of such ramps at the Justiceburg Reservoir Project. V. Both the City and the Landowners desire that the minimum amount of public access to or from Landowners' property be granted to the proposed Justiceburg Reservoir. The Landowners agree to support in all things the City's application before the United States Army Corps of Engineers for the grant of a Section 404 Permit according to the provisions of 33 U.S.C.A. Section 404 and the regulations adopted thereunder. City and Landowners agree in the Section 404 proceedings to minimize public access to the lake from the Landowners' property. The City shall initiate and prosecute the Section 404 proceeding with reasonable diligence. VI. Upon completion of the final design the City will be allowed to survey the reservoir site in order to determine the total number of acres below the normal operating level, the number of acres required for the dam structure, dam abutments, borrow areas, pump station and access thereto, spillways, return, other structures, unusable land, and public access areas. Except as provided in sections III and IV with respect to the easements therein referred to, the City agrees to pay or compensate the Landowners for each acre taken by the City in fee title (the oil, gas, and other hydrocarbon minerals being reserved to Landowners as set out below) to complete the Justiceburg Reservoir Project, as follows: $800.00 per acre which is the City's estimate of avoided costs by settlement. Landowners, however, shall have the right to use any of the land to be acquired by City in fee for normal ranching operations from the date that the City contracts to acquire such fee title until such time as the City pays the entire price for such land and notifies Landowners that it requires such land for its use. Landowners shall not be required to pay any rent or other consideration to City for use of the land above -mentioned. 7 The City shall purchase all unusable land which is designated by red color code on the map attached hereto as Exhibit "A", which Exhibit is made a part of this Agreement for all purposes. The Parties agree that after the final design and construction plans of the reservoir are completed, other property of Landowners may become unusable land and such additional potential unusable land is designated on Exhibit "A" by yellow color code. For purposes of such additional potential unusable land, the term "unusable land" shall mean property owned by any Landowner that is a party to this Agreement, to which all reasonable access to such property or reasonable access to livestock water supplies to such property or reasonable use of such property for normal ranching operations will be denied due to the isolation of such property by water in the reservoir or City's facilities related to the reservoir, and/or property owned by others. The owners of all "unusable land" shall be paid for same at the rate of $800.00 per acre. The City shall have the right to designate as "public access areas" any or all of those areas designated by green color code on the map attached hereto as Exhibit "A", which Exhibit is made a part of this Agreement for all purposes. The owners of "public access areas" shall be paid for same at the rate of $800.00 per acre. The City shall construct and maintain a fence around the public access areas at its sole expense. The Landowners will retain all oil and gas, and other hydrocarbon mineral rights and other substances extracted with or as a by-product of the extraction of such hydrocarbon minerals and all development rights from such minerals attached to the land acquired by the City, whether in fee or by easement. Included in such rights will be the right to drill hydrocarbon oil and gas wells through the reservoir and to locate such wells on barges or man-made islands in the reservoir itself. All such structures shall be constructed and maintained at the Landowners' and Operator's risk with regard to flooding R by the City's reservoir. With respect to all minerals presently owned by Landowners and not currently under lease, Landowners and the City expressly agree that all current and future hydrocarbon oil and gas well drilling, storage and transportation activities, during both construction and operation and all facilities incidental thereto, shall be operated and maintained in such manner as will protect from any contamination the purity of the water impounded in the reservoir at all times pursuant to the applicable Regulations of the Railroad Commission of Texas; and that the location of any drilling sites on land owned in fee by the City shall be subject to approval by the City, which approval shall not be unreasonable withheld. VII. Within 60 days after: (i) the date the City presents to Landowners an estimate of the amount of acreage required to complete the project pursuant to Section II hereof, or, if the City fails to deliver such estimate as therein required, the date the City is required to present such estimate; or (ii) the date the City obtains a Section 404 Permit from the United States Army Corps of Engineers, or following completion to final judgment by City of any appeal which may be taken from the Corps' issuance of a permit; whichever last occurs, the City agrees to contract for the purchase from Landowners of the surface land to be acquired in fee (the oil, gas and other hydrocarbon minerals being reserved to Landowners), by warranty deed, free and clear of all outstanding liens, mortgages, deeds of trust or other indebtedness but subject however to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty interests, if any, relating to or affecting said property, and shall pay to the Landowners an amount equal to twenty-five (25%) percent of the amount obtained by multiplying $800.00 times the number of acres required to be acquired by the City in fee as determined in section VI above. 0 This payment will constitute a non-refundable deposit and will be made pursuant to a contract of sale for the necessary land; however, the City even after payment of the non-refundable deposit and before the payment of the balance of the purchase, as herein provided, expressly retains the right to elect not to proceed with the project or the purchase of the property which is the subject of this Agreement. Except for specific performance to obtain cancellation of 5 11.121 Permit No. 4146 as provided for below, no further remedy, recovery, or any other relief shall be applicable other than forfeiture of the non-refundable deposit and of the legal fees under section I above. The City warrants that it has established and funded a dedicated account for the purpose of the land acquisition contemplated in this Agreement. The City shall have, and the contract of sale above -mentioned shall provide, the option to pay the full amount then due and owing on the land purchased pursuant to this section at any time. In the event the City does purchase the land necessary for the Justiceburg Reservoir as determined in section VI and later decides not to construct the reservoir or utilize the land, then in such event, and to the extent it is authorized to do so by State law, Landowners' shall have a right of first refusal to repurchase the land from the City. The right of first refusal herein granted to the Landowner shall be exercised by him within 120 days from the date the City notifies all of the Landowners of its intention to accept a bona fide offer for the purchase of the property. In the event that the Landowner whose land was purchased by the City does not exercise his right of first refusal or declines to exercise said right, the other Landowners who are parties to this Agreement shall have the right to purchase the land in question provided that they do so within the 120 day period above set forth. The remaining seventy-five (75%) percent of the purchase 1n price due hereunder shall, unless the City elect not to proceed with the project as above provided, be due and payable by the City prior to entry into actual construction of the dam, reservoir or any major facility relating thereto, and in no event later than three (3) years following the dismissal of litigation as provided in section VIII, below. In the event the City fails to pay the remaining purchase price as herein provided, the City will seek cancellation of its 9 11.121 Permit No. 4146 and Landowners have the right to enforce cancellation by specific performance. The balance of the purchase price to be paid Landowners (i.e., the total purchase price payable hereunder less the non-refundable deposit) shall be increased monthly from and after thirty (30) days after the date of dismissal of the litigation as hereinbelow provided at the rate of ten percent (10%) per annum until full and final payment of all sums due hereunder is made by the City. The City shall pay to the Landowners semi-annually the amount of the increase accruing during such six (6) month period, beginning at the end of the first six (6) months after the date of dismissal of the litigation and continuing regularly and semi-annually thereafter until the entire amount of the increased purchase price is paid in full. Such payments shall be non-refundable and shall be credited toward payment of such increased purchase price. In the event that the United States Corps of Engineers requires as a condition to granting of a Section 404 Permit that the City acquire additional land over and above the amount determined in section VI needed for the construction of the Justiceburg Reservoir, then in such event the parties hereto agree that the $800.00 per acre purchase price shall have no application to any such additional land acquired under such circumstances, except where the Section 404 land designated is owned by the Landowners and is contiguous to the lake. City agrees to indemnify and hold Landowners harmless from any and all claims or liabilities or damages based on the negligence of the City or any of its employees, agents and contractors related in any manner to the City's surveying, feasibility investigations and construction and operation of the Justiceburg Dam and Reservoir. VIII. Upon payment of the twenty-five (25%) percent of the estimated land costs by the City, the Landowners agree to dismiss, with prejudice, their appeals from the decisions of the Texas Water Commission docketed as Cause No. 368,838 pending in the 126th Judicial District Court of Travis County, Texas, Cause No. 346,496, pending in the 299th Judicial District Court of Travis County, Texas, and Cause No. 374,346 pending in the 53rd Judicial District Court of Travis County, Texas. Landowners agree to pay court costs. In addition to the dismissal of the above -mentioned pending litigation, the Landowners further agree, upon the payment of twenty-five (25%) percent of the estimated land cost by City, that they shall reasonably cooperate with the City in connection with City activities in planning, financing, constructing or maintaining the Justiceburg Reservoir or the Post Reservoir. IX. Prior to the payment by the City to Landowners of the amounts described in section I of this Agreement, the Parties shall prepare and agree upon definitive documents required to effectuate this Agreement. A form of each document shall be attached to this Agreement for all purposes. X. During the pendency of the implementation of this Agreement and prior to the dismissal of the lawsuits filed by the Protestants, the Parties to this Agreement agree to make the necessary filings in the various courts in which the above -mentioned suits are pending to abate such suits, except for the perpetuation of testimony, if such be deemed necessary, but without regard to the other Party's right to object in court 12 to perpetuation of testimony. XI. Each Party hereby confirms to each other Party that such Party: (a) had made its own thorough and independent investigation and analysis of the terms and provisions of this Agreement and the transactions contemplated thereby; and (b) has not relied on any such investigation or analysis thereof made by any other Party or its counsel or other advisors or on any advice, statement or other communication made by any other Party or its counsel or other advisors with respect to the terms and provisions of this Agreement or the transactions contemplated thereby. XII. Each Party to this Agreement represents and warrants that all corporate (or other official) action on its part necessary for the execution and delivery and subject to the conditions contained herein, performance of this Agreement and the settlement has been duly and effectively taken. XIII. All representations, warranties and covenants contained herein or in the settlement shall survive the settlement date and will bind and inure to the benefit of the respective succesors and assigns of the Parties hereto, whether so expressed or not. XIV. No failure or delay on the part of any Party hereto in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof. No modification or waiver of any provision of this Agreement or the settlement nor consent to any departure by any Party therefrom shall in any event be effective unless the same shall be in writing, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Party in any case shall entitle such Party to any other or further notice or demand in similar or other circumstances. XV. Notices and other communications provided for herein shall be in writing and shall be delivered or mailed (or in the case of telegraphic communications, if by telegram, delivered to the telegraph company, and if by telex, graphic scanning or other telegraphic communications equipment of the sending Party hereto, delivered by such equipment) addressed at such address as the Party to be addressed shall have provided the other Parties hereto for such purpose. All notices and other communications given to any Party hereto in accordance with the provisions of this Agreement shall be deemed to have been given when sent by registered or certified mail, if by mail, or when delivered to the telegraph company, charges prepaid, if by telegram or when receipt is acknowledged, if by any telegraphic communications equipment of the sender, in each case addressed to such Party in accordance with the latest unrevoked direction from such Party. XVI. Each Party hereto shall provide such further instruments, documents and assurances as shall be necessary or desirable to carry out, subject to the terms and conditions hereof, the provisions hereof and of the settlement and, subject to the terms and conditions hereof, do all things necessary or proper to carry out the provisions hereof and of the settlement. XVII. This Agreement and the settlement shall be governed by and construed in accordance with the laws of the State of Texas. XVIII. This Agreement may be executed by each of the Parties hereto or separate counterparts, each of which when so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument. Convest and Johnson will execute a separate Agreement with the City, the execution of which shall be a condition to the City's execution of this Agreement. In the event Convest elects to dismiss its appeals from the decisions of the Commission prior to the City's execution of this Agreement, execution by Convest of a separate Agreement with the City shall not be a condition to the City's execution of this Agreement. XIX. The words, City, Landowners, Landowner, Convest and Johnson shall be given the following meaning as used in this Agreement: 1. City shall mean the City of Lubbock, Texas. The City of Lubbock, Texas, however, shall be construed to include any governmental, corporate or other entity, by or through which the City of Lubbock may in its discretion select for the performance of any of its obligations hereunder, toward testing, planning, construction, maintenance or operation of the proposed facility and any successor, transferee or assignee of the city's § 11.121 Permit No. 4146. The City of Lubbock may act through water districts created by law or by contract. The designation of such entity or individual for performance or the transfer of said Permit shall in no way affect the obligations owed by the City to any other party arising from this Agreement, nor affect any obligation owed to the City by any other party arising from this Agreement. 2. Landowners shall mean all individuals named in recital (C), above set forth in this Agreement. 3. Landowner shall mean any one of the individuals named in recital (C) of this Agreement with husband and wife being considered as one Landowner. 4. Convest shall mean Convest Energy Corporation. 5. Johnson shall mean Mr. Sidney Johnson individually, d/b/a Johnson Cattle Company and as Trustee for the Estate of Mr. Weldon Johnson, deceased, and Mrs. Weldon Clay Johnson, deceased, and Mr. Weldon Clay Johnson and Ms. Vicky Lee Johnson. 6. Justiceburg Reservoir shall mean all areas necessary to complete the project as determined in Paragraph III, IV, and VI, above, but does not include any area acquired to meet the requirements of a Section 404 Permit. IN WITNESS WHEREOF, the Parties hereto have caused by these presents to be executed by their duly authorized representatives as of the date first above written. CITY OF LUBBOCK, TEXAS ALAN HENRY, M YOR ATTEST: CITY �ECRETARY MR. BILLY"WAYNE WILLIAMS MRS. BILLY WAYNE WILLIAMS MR. BILDY �HUUDDDLEST/ON /f MRS. BILLY`HUDDLESTON MRy4-OHN WARD 16 MRS. JOH WARD JOHN REED MRS. JOH�RE E1D MR.J-� -W. HEADSTREAM MRS. J.W. HEADSTREAM Zc—r-4—ti-c� MR. IM SORE5 MRS. JIM Z OREN Cam_ MR. JOHN BOREN MRS. JOHN BOREN MR. WALTER BOREN AV 1 A,1tc"/ pov7t- M S. WALTER BOREN frb/meh/0632j 3/27/86 17 EXHIBIT "A" (This Exhibit has been omitted from this copy due to size and inability at this time to secure reproduction of true and correct copies thereof. One duplicate original has been dis- tributed to each side of the Agreement on April 3, 1986. The original is on file with the Agreement in the office of the City Secretary of the City of Lubbock, Texas.) Note Re: EXHIBIT "A" FORM I. - CONTRACT OF SALE COMMENTS Contract for purchase of land is required by Section VII of the agreement. It is required to be executed within 60 days after (1) the presentation by city to landowners of amount of acreage required (or the date same is required) or (2) date of final 404 permit, whichever last occurs (Section VII). It is contemplated that a separate contract will be executed between each separate landowner and the City. It is further contemplated that a copy of Memorandum of Agreement will be attached and incorporated as a part of each such contract for certainty and clarity. Not all provisions contained in the attached form will necessarily apply to each landowner and any such inapplicable provisions will be omitted in ,that circumstance. It will be the responsibility of the City to prepare each such contract and submit same to each landowner when timely. I have provided for legal description of all temporary and permanent easement areas for water pipe lines, transmission lines, communication lines, service road, etc., in the contract. It is possible that the specific areas of all or part of those easements may not yet be determined by the date on the contract. In which case those descriptions will be omitted from the contract for later inclusion only in the subsequent easement instrument itself. CONTRACT OF SALE THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF § BY THIS AGREEMENT AND CONTRACT, , of County, Texas, as the Seller and hereinafter called "LANDOWNER," and the City of Lubbock, a home rule municipal corporation of Lubbock County, Texas, as the Buyer and herein- after called "CITY," by which Landowner agrees to sell to City and City agrees to buy from Landowner the property, rights, titles and easements hereinafter described upon the terms and conditions following: WITNESSETH: 1. That Landowner has agreed, and does hereby agree, to sell and convey unto City, and does hereby sell and agree to convey unto City the surface land to be acquired in fee (the oil and gas and other hydrocarbon minerals being reserved to Seller as set forth in the Memorandum of Agreement attached hereto) by warranty deed, free and clear of all outstanding liens, mort- gages, deeds of trust or other indebtedness, but subject to any and all easements, leases, rights -of -way, restrictions, out- standing mineral interests and royalty interests, if any, relating to or affecting the herein described real property, existing on the date of execution of the Memorandum of Agreement, all those certain tracts or parcels of land lying and situated in County, Texas, and being more particularly de- scribed as follows, to -wit: TRACT(S) A: (Legal description of all land within the reservoir, being land from elevation 2220 mean sea level or less). TRACT(S) B: (Legal description, as appropriate, of all land to be used for the dam, spillway discharge channel, emergency spillway, borrow areas as needed, pump stations, dam abutments, access between the pump station and the dam structure, and any other land actually required for construction and/or operation of the dam, the pump station and other necessary facilities associated with the reservoir, etc.) TRACT(S) C: (Legal description, as appropriate, of all unusable land). TRACTS) D: (Legal description, as appropriate, of all public access areas, etc.) 2. That Landowner has agreed, and does hereby agree, to sell and convey unto City, and does hereby sell and agree to convey unto City, subject to the matters hereinabove described, the following described easements along, over and across, all those certain tracts or parcels of land situated in _ County, Texas, the nature and purpose of such easements and the lands encompassed by same being more particularly described as follows, to -wit: A. A restrictive easement and flood easement from elevation 2220 feet above mean sea level to elevation 2245 feet above mean seal level, such easement area being more particularly described by metes and bounds as follows: (legal description) B. The Landowner shall impose a restrictive easement on such portion of Landowner's land which is between elevation 2245 feet above mean sea level and 300 feet horizontal distance from elevation 2220 feet above mean sea level where the 300 feet horizontal distance contains a larger area of land than is contained between elevations 2220 feet and 2245 feet above mean sea level, such easement area being more particularly described by metes and bounds as follows: (legal descriptions) C. One or more permanent water pipelines easements, such easement areas being more particularly described by metes and bounds as follows: (legal descriptions) D. Permanent electric transmission lines easements, such easement areas being more particularly described by metes and bounds as follows: (legal descriptions) E. Permanent communication lines easements, such easement areas being more particularly described by metes and bounds as follows: (legal descriptions) F. Temporary construction easements for the following purposes, the areas and purposes of such easements being more particularly described by metes and bounds as follows: (legal descriptions by purpose) G. Easement for an all-weather service road, such easement area being in the location described on Exhibit "A" to the Memorandum of Agreement attached hereto and being more particularly described by metes and bounds as follows: (legal description) - 2 - 3. That Landowner further has agreed, and does hereby agree, to sell and convey unto City, and does hereby sell and convey unto City, such other rights, titles, interests and privileges, and upon such terms, conditions and limitations, as agreed, set forth and defined in that certain Memorandum of Agreement to which Landowner and City were parties, dated the day of April, 1986, a copy of which Memorandum of Agree- ment is attached hereto and by such attachment is incorporated and made a part of this Contract of Sale for all purposes. In the event of any inconsistency between this Contract of Sale and the attached Memorandum, either by inclusion of matter or omission, the provisions of the Memorandum of Agreement shall control. 4. That in consideration of the conveyance to it by Landowner of the property, rights and easements above described, City agrees to pay to Landowner the amounts calculated, and at the times provided, in the Memorandum of Agreement attached hereto and made a part of this Contract. This consideration is summarized only as follows: A. The sum of $800.00 per acre for all acreage defined by metes and bounds in paragraphs 1A, 1B, 1C and 1D above, which sum shall be full consideration for all titles and easements described in paragraphs 1A, 1B, 1C, 1D, 2A, 2B and 2G (as applicable). B. The sum of $20.00 per rod (and for an area 60 feet in width) for all easement areas defined in paragraphs 2C, 2D, 2E and 2F (as applicable). Notwithstanding anything contained herein or the Memorandum of Agreement attached hereto to the contrary, it is acknowledged and agreed that certain Landowners may not, due to prior separa- tion or conveyance, own the minerals on their property. Such Landowners shall only be required to convey the surface without the minerals and shall be compensated at the rate of $800.00 per acre for the property conveyed. 5. The times and amount of each such payment shall be as specifically provided in the Memorandum of Agreement. The City shall consider and treat all other terms, conditions and limita- tions, as set forth and defined in the attached Memorandum of Agreement to the extent same imposes duties or obligations upon - 3 - City, as required of City as a part of its consideration due hereunder. Unless otherwise expressly specified, in the event of any inconsistency between this Contract of Sale and the attached Memorandum, either by inclusion or omission, the provisions of the Memorandum of Agreement shall control. 6. Prior to the date any warranty deed or easement instrument is required by this Contract or the Memorandum of Agreement attached, the City at its sole cost shall arrange to secure such abstracts of title covering the real estate which is the subject of this Contract as appropriate for examination by an attorney of its own selection, and/or it may arrange to secure or obtain at its sole cost a policy of title insurance. 7. Any objections to the title appearing upon examination or in the process of securing a policy of title insurance, which objections remain the duty of Landowner to cure under the terms of the Memorandum of Agreement, shall be set forth in writing and delivered to Landowner for cure or elimination at least sixty (60) days prior to the date of execution of any such warranty deed or easement right subsequently provided under the Memorandum of Agreement. B. Landowner shall have a reasonable time to cure said objections and show title as is required under the terms of the Memorandum of Agreement, but that reasonable time shall not exceed the date provided for the deed or easement grant provided in the Memorandum of Agreement. 9. If Landowner fails or refuses to correct such title defect, City, in its option, may enforce specific performance of same. 10. Taxes on the real estate herein conveyed or to be conveyed, shall be prorated to the date of the final payment for all land taken in fee simple. 11. Landowner agrees to sign and execute such warranty deed and easement instruments as conform with the Memorandum of Agreement. The duty to prepare all such instruments shall be upon City. - 4 - 12. The parties hereto agree that compliance by each of all terms, conditions, provisions, and limitations contained in the above described Memorandum of Agreement (as attached hereto) is of the essence of this Contract. 13. This Contract shall be binding upon in inure to the benefit of the heirs, executions, administrators, successors and assigns of the respective parties to this Contract. 14. This Contract and all attachments thereto, may be filed of record in the Deed Records of any and all counties in which all or any part of the property or property interests involved lies or is situated. EXECUTED in duplicate originals as of the _ day of , 19 CITY OF LUBBOCK, TEXAS (BUYER) SELLERS: BY: MAYOR ATTEST: City Secretary (acknowledgements as appropriate) - 5 - 4 , FORM II. WARRANTY DEED COMMENTS The warranty deeds will be executed at the time of the payment of the final 7545 balance of the compensation due for the property to be conveyed in fee. This could, in the option of the City, be even as early as the date provided for the first 250 of the compensation. It is contemplated that a separate warranty deed will be prepared for each separate landowner. By the time of the warranty deeds most of the mutual obligations of the parties under the Memorandum of Agreement will already have been accomplished. The language of the deed accordingly omits reference to obligations by then already accomplished and is designed only to incorporate, by inclusion and by reference to the Agreement, obligations still remaining as of such time. It is contemplated that by such time most, if not all, specific purpose easements will have been separately executed. To the extent any have not been, however, this obligation will continue. It will be the duty of the City to prepare, submit and file all deeds of record. WARRANTY DEED THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF § THAT (name of specific landowner/grantor) , all of the County of ,, State of Texas, for and in considera- tion of the sum of TEN AND NO/100 DOLLARS ($10.00) to us now or heretofore cash in hand paid by the grantee hereinafter named, the receipt and sufficiency of which is hereby acknowledged, and under the threat and eminence of condemnation by the City of Lubbock, Texas, a governmental entity with the power of condem- nation, the said City having finally determined by resolution that the public interest is served by the acquisition of the herein -described real property, have GRANTED, SOLD and CONVEYED, and by these presents do GRANT, SELL and CONVEY unto the CITY OF LUBBOCK, a home rule municipal corporation of Lubbock County, Texas, all of the following described real property in County, Texas, more particularly described as follows: TRACTS(S) A. (Legal description by metes and bounds of property within reservoir area, 2220 feet above mean sea level and below.) TRACT(S) B. (Legal description by metes and bounds of property as required for the location of the dam itself, the spillway discharge channel, the emergency spillway, borrow areas as needed, pump stations, the dam abutments, and access between the pump station and the dam structure, and any land actually required for construction and/or operation of the dam, the pump station and other necessary facilities associated with the reservoir.) TRACT(S) C. (Legal description by metes and bounds of public access areas, as applicable.) TRACT(S) D. (Legal description by metes and bounds of unusable land, as applicable.) In and for the same consideration above provided the grantors have further by these presents GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents do GRANT, BARGAIN, SELL and CONVEY unto the said City of Lubbock, Texas, its legal represen- tatives, successors and assigns, for the use of he said City of Lubbock, a restrictive easement and flood easement from elevation 2220 feet above mean sea level to elevation 2245 feet above mean sea level, which easement grants City (a) the right to intermit- tently overflow, flood or cover such land, at any time with flood, slack or backwater created by construction, maintenance and operation by City of its proposed Justiceburg Dam and the Reservoir and for the storage of water created by the construc- tion of the Dam; (b) the right to enter upon said land, with due notice and without loitering, to clear, destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth or any other thing which would in any way interfere with the construc- tion, maintenance and operation of such dam and reservoir or tend to render the same unsafe or unsanitary and to prevent the drainage or dumping of refuse, sewage or other material into such reservoir and to carry ouL an adequate program of pollution control; and (c) the right to prevent the construction of, or the removal, with due notice, of any structure or facility located or to be located on said land. This restrictive easement and flood easement lying and being situated in the County of , State of Texas, and being more particularly described as follows: (Legal description by metes and bounds) In and for the same consideration above provided the grantors have further by these presents GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents do GRANT, BARGAIN, SELL and CONVEY unto the said City of Lubbock, Texas, its legal representa- tives, successors and assigns, for the use of the said City of Lubbock, a restrictive easement on such portion of their land which is between elevation 2245 feet above mean sea level and 300 - 2 - feet horizontal distance from elevation 2220 feet above mean sea level if the 300 feet horizontal distance contains a larger area of land than is contained between elevations 2220 feet and 2245 feet above mean sea level, which grant provides the City (a) the right to enter upon said land, with due notice and without loitering, to clear, destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth, or any other thing which would in any way interfere with construction, maintenance and operation of such dam or reservoir or tend to render the same unsafe or unsanitary, and to prevent the drainage or dumping of refuse, sewage or any other material into such reservoir and to carry out an adequate program of pollution control; and (b) the right to prevent the construction of, or the removal of, with due notice, any structure or facility located or to be located on said land. Structures and facilities are defined as waterwells, septic systems, cesspools, barns, sheds, places of habitation, and boat docks, but shall not include pens, gates, fences, cattleguards or boat ramps. All structures constructed and maintained by the grantor shall he at the grantor's risk with regard to flooding by the City's reservoir. Grantors retain the right to construct two boat ramps, which shall comply with applicable regulations imposed by the United States Army Corps of Engineers for the construction of such ramps at the Justiceburg Reservoir Project. This restrictive easement lying and being situated in the County of , State of Texas, and being more parti- cularly described as follows: (Legal description by metes and bounds) The grantors retain unto themselves, their heirs and assigns all oil and gas, and other hydrocarbon mineral rights and other substances extracted with or as a by-product of the extraction of such hydrocarbon minerals and all development rights from such minerals attached to the land acquired by the City, whether in - 3 - fee or by easement. Included in such retained rights will be the right to drill hydrocarbon oil and gas wells through the reser- voir and to locate such wells on barges or man-made islands in the reservoir itself. All such structures shall be constructed and maintained at the grantor's and any operator's risk with regard to flooding by the City's reservoir. With respect to all minerals presently owned by grantors and not currently under lease, grantors and the City have by prior separate Memorandum of Agreement hereinafter described, expressly agreed that all current and future hydrocarbon oil and gas well drilling, storage and transportation activities, during both construction and operation and all facilities incidental thereto, shall be operated and maintained in such manner as will protect from any contamination the purity of the water impounded in the reservoir at all times pursuant to the applicable Regulations of the Railroad Commission of Texas; and that the location of any drilling sites on land owned in fee by the City shall be subject to approval by the City, which approval shall not be unreasonable withheld. Notwithstanding anything to the contrary contained herein or in the Memorandum of Agreement, the conveyances described herein, whether fee or easement, are further made and accepted subject to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty interests, if any, relating to or affecting the hereinabove described real property or any portion thereof as existed on the date of Execution of the Memorandum of Agreement. In and for the same consideration above provided the grantors further acknowledge that under the prior separate Memorandum of Agreement hereinafter described, that they shall, upon reasonable notice, subsequently grant temporary access of the shore of the lake, which is the property abutting that described in TRACT(S) A, above, for reasonable purposes necessary during construction and subsequent operation of the proposed dam and reservoir. - 4 - The grantors and the City or its employees, agents and contractors, in the performance of their official duties with the City, shall have the exclusive right to use land below the normal operating level of the lake, being land only within TRACT(S) A as above described, at times when the lake is below normal operating level, except areas between the water line and that property described as TRACT(S) B, C and D, above. At such times, grantors may use such land for livestock grazing and for their personal recreational uses. Grantors shall have no right however to build, place or erect any structure or facility within such areas. This warranty deed, and the grants and consideration provisions hereof, is given in culmination of a relationship between grantors and grantee arising under a Memorandum of Agreement, which said agreement, to which both grantors and grantees were parties, was attached to and incorporated as a part of a contract of sale between the parties filed of record in Vol. Page , Deed Records of County, Texas, to which instrument reference is here made for all purposes as may become necessary in any interpretation of the contents of this deed.- In the event of any inconsistency between this deed and such Memorandum of Agreement, either by inclusion of matter or omission, the provisions of the Memorandum of Agreement shall control in the interpretation of this deed, unless otherwise expressly provided. Under the conditions and limitations contained in Section VII of the Memorandum Agreement above described, Grantors shall have a right of first refusal to repurchase TRACTS A, B, C and D from the City. The right of first refusal herein granted shall be exercised by Grantors within 120 days from the date the City notifies all of the landowners named in the Memorandum of Agreement of its intention to accept a bona fide offer for the purchase of the property. In the event that the Grantors do not exercise such right of first refusal or declines to exercise said right, the other landowners who are parties to the Memorandum of - 5 - Agreement shall have the right to purchase the land in question provided that they do so within the 120 day period above set forth. City agrees to indemnify and hold Grantors harmless from any and all claims or liabilities or damages based on the negligence of the City or any of its employees, agents and contractors related in any manner to the City's surveying, feasibility investigations and construction and operation of the Justiceburg Dam and Reservoir. Notwithstanding anything to the contrary contained herein or in the Memorandum of Agreement, the easements herein granted to the City shall cease and terminate in the event the City elects not to proceed with the construction of the Justiceburg Reservoir project and cancels its §11.121 Permit No. 4146 under the conditions therefor provided in Section VII of the Memorandum of Agreement. TO HAVE AND TO HOLD the above described premises, rights, titles, easements, interests and all appurtenances thereto in anywise belonging, unto the said grantee CITY OF LUBBOCK, TEXAS, its successors and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators to WARRANT AND FOREVER DEFEND all and singular the said premises unto the said grantee, CITY OF LUBBOCK, TEXAS, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, subject, however, to the reservations and other matters set forth herein. Current ad valorem taxes on the herein described real property having been prorated, and the Grantor's prorated amount withheld from the consideration paid, the payment thereof is assumed by the City of Lubbock, Texas. The said City of Lubbock further assumes payment of one-half (1/2) of any taxes assessed after date hereof against said real property herein conveyed, or any portion thereof, for periods of time prior to the date hereof due to changes in land usage or ownership under Property Tax Code - 6 - Secs. 23.41 - 23.46 and/or Secs. 23.51 - 23.57, and then only if under the applicable Property Tax Code provision such "rollback" assessment can be enforced under the circumstances of this sale. EXECUTED this day of , 19 . GRANTORS (acknowledgments as appropriate) - 7 - 8. r FORM III - SPECIFIC USE EASEMENTS COMMENTS Numerous easements of different types are provided for under the Memorandum of Agreement. Those affecting the 2220 to 2245 (and 300 horizontal feet conditions) should best be handled in the warranty deed, for their condition is part of that due for the fee conveyance areas. The all weather service road easement is to be provided without cost to the City. The consideration there is the City's obligation to construct and maintain the road and for the original (only) cost of a fence on both sides of the road. This is properly subject to inclusion in a separate easement different from all other easements in nature. All other temporary and permanent easements are based on $20 per rod (60' wide). It is appropriate for all these easements that only an "all purpose" form be now included. The terms and conditions subsequently required will be satisfied by "word for word" inclusion of the language contained in the Memorandum of Agreement as directly or indirectly bears upon or affects the specific easement involved. To this end an easement for the all weather service road and a general easement form for all other easements, is attached. It is anticipated that some easements may prove able to be combined. It will be the duty of the City to prepare, submit and file these easements of record. (1)* EASEMENT THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF § THAT Game of specific landowner grantor) , all of the County of , State of Texas, as landowner and herein- after called "Grantors"), for and in consideration of the sum of TEN AND NO/100 ($10.00) DOLLARS, and the further consideration of all sums for the purpose of this grant now due as provided in Memorandum of Agreement dated the day of April, 1986, as attached to Contract of Sale between Grantors and Grantee, of record in Vol. , Page Deed Records of County, Texas, all to Grantors cash in hand paid as in said Memorandum of Agreement provided, by the City of Lubbock, a home rule municipal corporation of Lubbock County, Texas, the receipt and sufficiency of all of which is hereby acknowledged and confessed, and the further good and valuable consideration in benefits accruing and to accrue to the remainder of their property, have by these presents GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents do GRANT, BARGAIN, SELL and CONVEY unto the said City of Lubbock, Texas, its leqal repre- sentatives, successors and assigns, for the use of the said City of Lubbock, Texas, as a (2)* easement for the free and uninterrupted use, liberty of passage in, along, over, upon and across, all that property lying and being situated in the County of , State of Texas, and being de- scribed as follows, to -wit: (for example) A foot wide (1) easement out of (section, block, etc.), County, Texas, being more particularly described as follows: (Metes and bounds description) together with the rights of ingress, egress and regress at any and all times, to accomplish the following purposes: allowing but not limited to, construction, reconstruction, erection, repair, inspection, patrolling and maintaining of (3)* Grantors shall not place any such structures or improvements within said easement area as will interfere with Grantee's full use thereof in accordance with the purpose of the grant. This easement includes the right to subsequently add or replace any facility, improvement or accessory necessary to the operation of the primary purpose of the easement, including its relocation at any time within the easement area, and shall further include the right at any time during the life of this easement, to remove all timbers, trees, brush, trash, filth, or any other obstructions in whole or in part within the easement area which might endanger or interfere with the Grantee's full enjoyment of the rights granted herein. Unless otherwise specifically provided this grant is further made subject to and shall always be construed and interpreted as consistent with and as containing all provisions directly or indirectly governing its grant and the respective rights and obligations of both Grantor and Grantee, relating thereto as contained in the Memorandum of Agreement dated April, 1986, and as above described, to which said Memorandum of Agreement reference is here made and its applicable provisions incorporated herein by reference for all purposes. (add at this point, if appropriate, any specific provisions from the Memorandum of Agreement that might have special siqnificance for this specific easement. The inserted matter will be taken "word for word" from the Memorandum insofar as possible). City agrees to indemnify and hold Grantors harmless from any and all claims or liabilities or damages based on the negligence of the City or any of its employees, agents and contractors related in any manner to the City's surveying, feasibility investigations and construction and operation of the Justiceburg Dam and Reservoir. -2- Except as and to the extent inconsistent with the City's use of the easement area for the purposes herein contained, the City agrees to restore promptly any portion of the easement area or of the remainder of Grantor's property not conveyed or to be conveyed in fee to City under the Memorandum of Agreement, disturbed by the City in connection with its use of the easement herein granted or the construction of improvements or facilities related to such easement. Notwithstanding anything to the contrary contained herein, or the Memorandum of Agreement, this conveyance is made and accepted subject to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty in- terests, if any, relating to or affecting the property described herein existing on the date of execution of the Memorandum of Agreement. Notwithstanding anything to the contrary contained herein or in the Memorandum of Agreement, the easement herein granted shall cease and terminate in the event the City elects not to proceed with the construction of the Justiceburg Reservoir Project and cancels its §11.121 Permit No. 4146 under the conditions therefor provided in Section VII of the Memorandum of Agreement. TO HAVE AND TO HOLD the above described premises together with all and singular the rights and appurtenances thereto in anywise belonging perpetually (or for an appropriate lesser period in the case of temporary/working easements) unto the City of Lubbock, Texas, its successors and assigns, to the uses and under the conditions hereinabove stated forever (or for the life of this grant as above provided) WITNESS OUR HANDS, this the _ _ day of , 19 GRANTORS (acknowledgement as appropriate) -3- M * Will define easement, such as: a. Water pipe lines; or b. Electric Transmission lines; C. Communication lines; d. Etc. (2)* Will define life of easement, such as: a. Permanent and perpetual; or b. Temporary/working C. Etc. (3)* Will describe the primary facility, and major components and further provide for such additional facilities or acces- sories, etc., as may now be or subsequently become necessary or appropriate to the safe or efficient operation thereof, etc. This is as specific as can now be provided until final design plans are prepared. The primary facility, for example, could be such as: a. Overhead electrical transmission or distribution lines; or b. Underground water transmission pipes or conduits; C. etc. By way of one example only: "...overhead electrical transmission and/or distri- bution lines and wires, including all poles, wires, con- duits, transformers, guys, guy wires and braces, and such other facilities, improvements or accessories as now or subsequently necessary or appropriate to the safe and efficient operation of said overhead electrical transmission and/or distribution lines..." (4) Also, as applicable to the water pipeline easement only: In the event that City, in its discretion, determines to construct the Justiceburg Reservoir as contemplated by the Memorandum of Agreement and does construct such facil- ity, then and only then the City will grant to Grantors (pertains to Landowners Reed, Ward, and Huddleston only) one tap each to allow use of the raw water in the pipeline(s) for domestic and normal ranching livestock consumption on Grantors' property. No warranty will be given as to the quality or the availability of water from the pipeline(s). Grantors will provide a recording meter at each tap to measure the volume of water taken which shall be limited to twenty (20) acre feet per year per tap. The City shall have reasonable access to each tap and meter for the purpose of calibrating the same from time to time. FORM IV - ALL-WEATHER ROAD EASEMENT COMMENTS Mutual obligations have been accepted between the parties affected as to an all-weather road. Section III at pg. 4, of Memorandum of Agreement. This will be a private road for the use of the City and the abutting landowners only. The 60' wide easement for the roadway will be granted without additional cost to the City (beyond consideration paid for the land otherwise purchased). It will be constructed and maintained by the City. The easement will be fenced on each side. The original cost of installation of the fences will be on the City's, but all costs of maintenance of the fences thereafter will be on the abutting landowner. Only some of the parties to the Memorandum of Agreement will be involved in the road easement. Where possible the road will follow property lines and in such applicable circumstances one-half of the roadway easement will be conveyed by each of the landowners abutting such property line. It will be the duty of the City to prepare, submit and file this easement document of record. PRIVATE ROADWAY EASEMENT THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF § THAT (name of_specific landowner/grantor , all of the County of , State of Texas, as landowner and hereinafter called "Grantors"), for and in consideration of the sum of TEN AND NO/100 DOLLARS, and the further consideration of all sums for the purpose of the grant now due as provided in Memorandum of Agreement dated the day of April, 1986, as attached to Contract of Sale between Grantors and Grantee, of record in Vol. , Page Deed Records of County, Texas, all to Grantors cash in hand paid as in said Memorandum of Agreement provided, by the City of Lubbock, a home rule municipal corporation of Lubbock County, Texas, the receipt and sufficiency of all of which is hereby acknowledged and confessed, and the further good and valuable consideration in benefits accruing and to accrue to the remainder of their property, have by these presents GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents do GRANT, BARGAIN, SELL and CONVEY unto the said City of Lubbock, Texas, its legal repre- sentatives, successors and assigns, for the use of the said City of Lubbock, Texas, and other landowners who are parties to the Memorandum of Agreement and whose property abuts the roadway, as a private roadway easement and including the free and uninter- rupted use, liberty of passage in, along, over, upon and across, in common with Grantors, all that property.lying and being situated in the County of , State of Texas, and being described as follows, to -wit: (for example) A (30' or 60') foot wide private roadway easement out of (section, block, etc.), County, Texas, being situated as set forth on Exhibit "A" attached to the Memorandum of Agreement and being more particularly de- scribed as follows: (Metes and bounds description) together with the rights of ingress, egress and regress at any and all times, to accomplish the following purposes: allowing but not limited to, construction, reconstruction, erection, repair, inspection, patrolling and maintaining such roadway easement. Grantors shall not place any such structures or improvements within said easement area as will interfere with Grantee's full use thereof in accordance with the purpose of the grant. This easement includes the right to subsequently add or replace any facility, improvement or accessory necessary to the operation of the primary purpose of the easement, including its relocation at any time within the easement area, and shall further include the right at any time during the life of this easement, to remove all timber, trees, brush, trash, filth, or any other obstructions in whole or in part within the easement area which might endanger or interfere with the Grantee's full enjoyment of the rights granted herein. Unless otherwise specifically provided this grant is further made subject to and shall always be construed and interpreted as consistent with and as containing all provisions directly or indirectly governing its grant and the respective rights and obligations of both Grantor and Grantee relating thereof, as contained in the Memorandum of Agreement dated April , 1986, and as above described, to which said Memorandum of Agreement reference is here made and its applicable provisions incorporated herein by reference for all purposes. The Grantee at its sole cost shall construct and maintain within such roadway easement when necessary to it, an all-weather service road•of such width as to the City in its discretion deemed to be of sufficient width to safely accommodate all traffic anticipated to be generated by City's activities during planning, construction, operation, reconstruction and maintenance of the Justiceburg dam, reservoir and related facilities. The all-weather service road shall be constructed and maintained at the City's sole expense. The roadway easement area shall be fenced along each outside property line. The cost of the original fencing shall be paid by the City, thereafter all costs of maintenance of said fences shall be solely upon the landowner whose property abuts the - 2 - fenced area. The fence shall be placed at or immediately abut- ting the outer metes and bounds of the total easement area. The road shall not be accessible to the public nor dedicated as a public roadway. It may be used only by all the abutting landowners and the City, its employees, servants, agents and contractors in its activities relating to the planning, con- struction, operation and maintenance of the Justiceburg dam and reservoir. TO HAVE AND TO HOLD the above described premises together with all and singular the rights and appurtenances thereto in anywise belonging perpetually unto the City of Lubbock, Texas, its successors and assigns, to the uses and under the conditions hereinabove stated forever. City agrees to indemnify and hold Grantors harmless from any and all claims or liabilities or damages based on the negligence of the City or any of its employees, agents and contractors related in any manner to the City's surveying, feasibility inves- tigations and construction and operation of the Justiceburg Dam and Reservoir. Except as and to the extent inconsistent with the City's use of the easement area for the purposes herein contained, the City agrees to restore promptly any portion of the easement area or of the remainder of Grantor's property not conveyed or to be con- veyed in fee to City under the Memorandum of Agreement disturbed by the City in connection with its use of the easement herein granted or the construction of improvements or facilities related to such easement. Notwithstanding anything to the contrary contained herein, or in the Memorandum of Agreement, this conveyance is made and accepted subject to any and all easements, leases, rights -of -way, restrictions, outstanding mineral interests and royalty inter- ests, if any, relating to or affecting the property described herein, existing on the date of execution of the Memorandum of Agreement. Notwithstanding anything to the contrary contained herein or in the Memorandum of Agreement, the easement herein granted shall - 3 - cease and terminate in the event the City elects not to proceed with the construction of the Justiceburg Reservoir project and cancels its §11.121 Permit No. 4146 under the conditions therefor provided in Section VII of the Memorandum of Agreement. WITNESS OUR HANDS, this the day of , 19 GRANTORS (acknowledgement as appropriate) - 4 - Resolution #2282 Dated: April 3, 1986 AGREEMENT THE STATE OF TEXAS S COUNTIES OF GARZA § AND KENT § RECITALS A. The City of Lubbock, Texas, a Texas municipal corporation (the "City") has obtained a Texas Water Code § 11.121 Permit from the Texas Water Commission (the "Commission") to construct a reservoir on the South Fork of the Double Mountain Fork of the Brazos River in Garza and Kent Counties, Texas (the "Justiceburg Reservoir" or the "Reservoir"). B. The White River Municipal Water District (the "District") has obtained from the Commission extensions of time on its Texas Water Code S 11.121 Permit to construct a reservoir on the North Fork of the Double Mountain Fork of the Brazos River in Garza County, Texas (the "Post Reservoir"). C. In Cause No. 346,496, Mr. and Mrs. Billy Wayne Williams, et al. v. Texas Department of Water Resources, et al., pending in the 299th Judicial District Court of Travis County, Texas, and Cause No. 374,346, Mr. and Mrs. Billy Wayne Williams, et al. V. Texas Department of Water Resources, et al., pending in the 53rd Judicial District Court of Travis County, Texas, Mr. and Mrs. Billy Wayne Williams, Mr. and Mrs. Billy Huddleston, Mr. and Mrs. John Ward, Mr. and Mrs. John Reed, Mr. and Mrs. J.W. Headstream, Mr. and Mrs. Jim Boren, Mr. and Mrs. John Boren, and Mr. and Mrs. Walter Boren (collectively, "Landowners"), and Mr. Sidney Johnson, individually, d/b/a Johnson Cattle Company, and as Trustee for the Estate of Mrs. Weldon Johnson, deceased, Mr. Weldon Clay Johnson, and Ms. Vicky Lee Johnson (collectively, "Johnson") and Convest Energy Corporation have appealed the Commission decision granting to the District extensions of time for the construction of the Post Reservoir. In Cause No. 369,838, pending in the 126th Judicial District Court of Travis County, Texas, Landowners and Patterson have appealed the Commission decision granting to the City a permit to construct the Justiceburg Reservoir. D. Landowners and the City have agreed to settle the above -mentioned lawsuits ("Landowners' Agreement"). E. Johnson, Convest and the City also desire to settle the above -mentioned lawsuits. F. The City has determined that the settlement of said lawsuits on the terms and conditions set forth herein is in the best interest and welfare of its citizens, and that the execution and performance of this Agreement by the City will promote and protect the public interest and well-being of the City of Lubbock, Texas. AGREEMENT The parties hereto, intending to be legally bound by the terms hereof, hereby undertake, covenant and agree as follows: I. In consideration of the dismissal of pending litigation and the City's payment of litigation costs, Johnson and Convest agree to dismiss their appeal from the decision of the Texas Water Commission docketed as Cause No. 346,496 pending in the 299th Judicial District Court of Travis County, Texas, and Cause No. 374,346 pending in the 53rd Judicial District Court of Travis County, Texas, and Cause No. 369,838 pending in the 126th Judicial District Court of Travis County, Texas, simultaneously with the dismissal of such appeals by Landowners. Johnson and Convest also agree to support in all things the City's application before the United States Army Corps of Engineers for a Section 404 Permit according to the provisions of 33 U.S.C.A. § 404 and the regulations adopted thereunder. In the event Convest elects to dismiss its appeals from the decisions of the Commission prior to the City's execution of the Agreement with Landowners, execution by Convest of this Agreement shall not be a condition to the City's execution of the Agreement with Landowners. 2 II. In the event Landowners' Agreement is terminated for any reason, Johnson and Convest may, at their option and in their sole discretion, terminate this Agreement by written notice to the City. III. During the pendency of the implementation of this Agreement, and prior to the dismissal of the lawsuits filed by Johnson and Convest, the parties to this Agreement agree to make the necessary filings in the various courts in which the above -mentioned suits are pending to abate such suits, except for the perpetuation of testimony if such be deemed necessary, but without regard to the other party's right to object in court to the perpetuation of testimony. IV. Each party hereby confirms to each other party that such party: (a) has made its own thorough and independent investigation and analysis of the terms and provisions of the settlement and the transactions contemplated thereby, and (b) has not relied on any such investigation or analysis thereof made by any other party or its counsel or other advisors or on any advice, statement or other communiction made by any other party or its counsel or other advisors with respect to the terms and provisions of the settlement or the transactions contemplated thereby. The City represents and warrants that all corporate (or other official) action on its part necessary for the execution and delivery and, subject to the conditions contained herein, performance of this Agreement and the settlement has been duly and effectively taken. Prior to the execution hereof, the City shall furnish to Johnson's and Convest's attorneys satisfactory 3 e evidence of such action. VI. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been properly delivered as of the date of delivery if personally delivered or as of the date of deposit in the U.S. Mail or sent by certified mail, return receipt requested, postage prepaid, addressed to the party or parties to be notified at the address set forth below such party's signature hereto. Notice given in any other manner shall be effective only if, as and when received by the addressee. True copies of all notices or other communications delivered to Johnson or Convest shall be sent to Mr. Glen E. Johnson, Esq., Graves, Dougherty, Hearon & Moody, 2300 InterFirst Tower, Austin, Texas 78701. VII. Each party hereto shall provide such further instruments, documents and assurances as shall be necessary or desirable to carry out, subject to the terms and conditions hereof, the provisions hereof and of the settlement and, subject to the terms and conditions hereof, shall do all things necessary or proper to carry out the provisions hereof and of the settlement. VIII. This Agreement and settlement shall be governed by and construed in accordance with the laws of the State of Texas. IX. This Agreement may be executed by each of the parties hereto on separate counterparts, each of which when so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused these 4 presents to be executed by their duly authorized reprsentatives as of the date first herein above written. - THE CIT OF UBBOCK TEXAS ALAN E , MA OR ATTEST: City cretary 4MR. NE HNSON, /idua /ba Johnson Cattle Company, and as Trustee for the Estate of Mrs. Weldon Johnson, deceased Address:0 MR. WELDON CLAY JOHNSON Address: al g k 7 /'&J' evj d 1, U Q� MS. VICKV LEE J5NSON Address: d%/!9 �Zig/l �/ rz r � ✓Z CONVEST ENERGY CORPORATION By: Title: Address: 0631j 03/26/86 5 Resolution #2282 RATIFICATION AND ASSUMPTION OF MEMORANDUM OF AGREEMENT AND SETTLEMENT R E C I T A L S: A. Mr. and Mrs. Jim Boren and Mr. and Mrs. John Boren (herein collectively referred to as "Boren"), among others, are appealing the Texas Water Commission's grant of Permit No. 4146 to the City of Lubbock, Texas (the "City") to construct the proposed Justiceberg Reservoir in Cause No. 369,838, Mr. and Mrs. Billy Wayne Williams et al. v. Texas Department of Water Resources, et al., pending in the 126th Judicial District Court of Travis County, Texas. B. Boren, among others, have appealed the decision of the Texas Water Commission to grant extensions of time for the White River Municipal Water District to construct the Post Reservoir in both Cause No. 346496, Mr. and Mrs. Billy Wayne Williams, et al. V. Texas Department of Water Resources, et al., pending in the 299th Judicial District Court of Travis County, Texas, and Cause No. 374,346, Mr. and Mrs. Billy Wayne Williams, et al. v. Texas Department of Water Resources, et al., pending in the 53rd Judicial District Court of Travis County, Texas. C. Boren has participated in said appeals on behalf and at the request of Mildred Boren Wood ("Wood"), who is a true party in interest with respect to these lawsuits. D. Mr. and Mrs. Billy Wayne Williams, Mr. and Mrs. Billy Huddleston, Mr. and Mrs. John Ward, Mr. and Mrs. John Reed, Mr. and Mrs. J. W. Headstream, Boren, and Mr. and Mrs. Walter Boren have reached certain agreements with the City pertaining to the settlement of the above -mentioned lawsuits and the City's acquisition from said parties of certain real property interests in connection with the construction of the Justiceburg Reservoir, which agreements have been set forth in that certain Memorandum of Agreement (the "Memorandum"), a copy of which is attached hereto as Exhibit A and incorporated herein. wt r w E. Wood has agreed to 'ratify and accept all of the term; and conditions contained in the Memorandum. F. The City'has,agieed to accept Wood as a Landowne `.(a. { Al,y. u defined in the Memorandum) for all purposes thereunder, NOW, THEREFORE, for -and in consideration of the covenants.aini conditions herein contained, and other good and 'val.- e '� consideration, the receipt and sufficiency of which is hereb acknowledged, the parties hereto agree as follows:' 1. Wood hereby ratifies the Memorandum in.all respects an, agrees to assume and perform all of the duties and obligations o; ' a Landowner as described therein. m '{ 2. The City hereby agrees and consents to the assumption b Wood of all of the duties and obligations of a Landowner set fortAl in the Memorandum, and agrees that Wood shall becomea Landowner ,- �,: s thereunder for all purposes and shall be entitled to all'of rights and benefits accruing to Landowners thereunder and the. C assumes all obligations to Wood thereunder in the,same manners'. if she had been named therein originally. � . .... _ M�rztee+kam':3vx .w..rn+de..«wraw�ss,�araKa ,.ry:w-�'� w.;.'.wT*}wtc=`'v.;:;..,..,M ,..,..a.�.;.,...,,«�'-., ... ' '•�.a'a The provisionsof this Agreement shall be binding upo and inure to the benefit " of the parties hereto and,,thei. respective heirs, successors and assigns. x EXECUTED, this theray of April, 1986. M. d(3 = � ildred Boren Wood s � vs THE CZT F BBOCK, TEXAS k"a w By: :. *� ian Henr , Mayor T : City Secretary (Seal), w . �4£ •K3iX'Y` + p F Ex ht bf+ ll HUDDLE "LlDbLESTON t ... R ne•w• t "�w RO'RWD EA Mt t,T GF lEkCj ` '. ♦,:.... �a Q Ory SECT. t + w i T a • w c � .., r- ... '� ECG N � '6 �' �. h . r � eA �` WPU'fU � •� r r rl. r � a fs w. } e 1\ Estat 80RE�1 t f - .'�.,a� rr r {� •l � � �. i� .i �� ya r�'�y`�• _ /'t •yam ; ; } XESTI