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HomeMy WebLinkAboutResolution - 3625 - Lease Agreement - JE & Genene B Birdwell - Water Rights, Bailey County - 05_23_1991Resolution No. 3625 May 23, 1991 Item #28 DGV: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 Water Rights Lease Agreement by and between the City of Lubbock and J. E. Birdwell and wife, Genene B. Birdwell, 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 if fully copied herein in detail. Passed by the City Council this 23rd day of May , 1991. �c 13. C. , MAYOR ATTEST: APPROVED AS TO CONTENT: c Carroll McDonald, ssistant city - Manager for Utilities APPROVED AS TO FORM: Uoilala u. vanaiver, tirst Asses City Attorney Resolution No. 3625 May 23, 1991 Item #28 WATER RIGHTS LEASE AGREEMENT STATE OF TEXAS § COUNTY OF BAILEY § This Agreement entered into by and between J.E. Birdwell, also known as John E. Birdwell, II, also known as J.E. Birdwell, II and wife Genene B. Birdwell (hereinafter called "Owner") and the City of Lubbock, a home rule municipal corporation of Lubbock County, Texas (hereinafter called "City"): WITNESSETH: WHEREAS, J.E. Birdwell, also known as John E. Birdwell, II, also known as J.E. Birdwell, II and wife Genene B. Birdwell are owners of certain real property located in Bailey County, Texas which property is more particularly described in Exhibit "A' attached hereto and made a part hereof for all purposes (the "property"); and WHEREAS, the Owner is desirous of leasing and granting an option to purchase the rights to the underground water located under the property; and WHEREAS, the City is desirous of leasing and obtaining the option to purchase the rights to the underground water located under the property to preserve and protect public health of the City's residents; and WHEREAS, the City finds it to be in the best interest of the citizens of the City of Lubbock to acquire the rights hereinafter granted to the City, including such pumps and other equipment as are presently in place and necessary for the production of the water that is the subject of this Agreement; and bailey.h20-Water Rights Lease Agreement -page 1 of 12 WHEREAS, this contract shall supercede and replace the Water Rights Lease Agreement between the Birdwell Cattle Company and the City of Lubbock dated the 14th day of May, 1985, effective the date of execution of this Agreement; and WHEREAS, the Owner finds it to be in their best interest to grant the rights hereinafter set out to the City; NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS: 1. Description: The Owner does by these presents, pursuant to the terms hereof, lease and grant to the City the rights to all underground water located under the property, together with all improvements and rights of surface use as herein described, situated in Bailey County, Texas and as here -below provided: (a) City may, at its sole option, allow Owner to take underground water under the property for the purposes of protecting the natural vegetation cover on the property and only as much as may be required to maintain livestock water in above ground metal tanks. Underground water shall not be used by Owner to promote farming, ranching, or other agricultural use or activities on the property without the express written consent of City; and (b) Owner shall not drill, operate, or reactivate wells on the property for the purpose of obtaining underground water during the term of this Agreement; and (c) Owner agrees to pay all costs associated with water wells on the property used to provide underground water as provided in paragraph (a) hailey.h20-Water Rights lease Agreement -page 2 of 12 above when and if such taking is granted'to Owner by City. City may, at its sole option, develop a rate per unit of underground water provided to Owner and Owner agrees to pay said rate for underground water to City. Volume charges per unit of underground water shall be assessed per meter readings, incurred in connection with uses of water used by Owner as described herein and shall not be more than $0.90 per 1,000 gallons nor less than $0.30 per 1,000 gallons used. (d) Underground water provided to Owner shall be received by Owner through facilities designed by City to protect the quality of the underground water and City's water transmission system. Such facilities may include, but are not limited to, air gaps, backflow prevention devices, and other appurtenances specified by City. Such facilities required by City shall be maintained by Owner. Failure to maintain said facilities in good working condition shall result in termination of further water deliveries to Owner by City. (e) City shall have the exclusive right to use the existing four (4) wells and to modify the existing wells as required to comply with the Texas Department of Health regulations, and shall have the right to use and operate existing pipelines on the property, said wells and pipelines more fully described on Exhibit "B" attached hereto and incorporated herein by reference. bailey.h20-Water Rights lease Agreement -page 3 of 12 2. Purpose: The purpose of this Agreement is to provide the City with a source of potable underground water and to provide the Owner with a market for such potable underground water. 3. Term and Option to Purchase: This Agreement shall take effect upon the date of execution hereof by all parties and shall terminate December 31, 2001. For and in consideration of the sum of $100.00 paid by the City to Owner, the receipt and sufficiency of which is hereby acknowledged, the City, at its option, may purchase all of the water rights under the property from Owner for the purchase price of $1.00, such option exercisable by the City by tendering the purchase price of $1.00 to the Owner any time within 90 days prior to December 31, 2001. In the event City exercises such option, Owner agrees to execute any and all necessary documents to transfer full and complete title to City to such water rights, free and clear of any and all liens and encumbrances. 4. Purchase of pumps, motors, etc.: Owner agrees to sell and City agrees to purchase from Owner any and all water well pumps, motors, valves, electrical devices and any other similar property necessary for the operation of the four (4) existing water wells on and under the property and necessary for producing the City with a source of potable underground water (hereinafter called "Equipment") and necessary to preserve and protect the public health of the City's residents. The purchase price for the equipment shall be $20,000.00, payable in full at the execution of this Agreement. Owner shall execute a bill of sale to the City effectively conveying title to the equipment, free and clear of any and all liens and encumbrances. hailey.h20-Water Rights Lease Agreement -page 4 of 12 5. Additional Wells: City shall have the exclusive right to drill, equip, operate and maintain such additional wells on the property as the City in its sole discretion may determine to be necessary to produce sufficient underground water to meet the purpose of this Agreement. Additionally, City shall own and have the right to remove at any time any item of property placed or installed by the City on the property relative to any subsequent wells drilled on the property. 6. Duties of Owner: Owner agrees to undertake the following duties and obligations as part of the consideration flowing to the City under this Agreement: (a) To transfer to the City during the term of this Lease all of the Owner's rights under existing contracts for use on the property of electric power from existing electric lines. (b) To provide the City with access to and from the property for the purpose of installing pipelines and equipment. Such access shall be allowed for all required purposes pertinent to the operation and maintenance of said wells and pipelines. Owner shall not assess City with right of way charges or fees for said access nor shall Owner assess charges or fees for surface area used in the production of underground water. (c) To provide the City with sufficient surface area for the purposes of complying with Texas Department of Health or other regulatory agency requirements including, but not limited to, sanitary easements, maintaining livestock distances from wells, and wellhead protection zones. baky.h20-Water Rights Lease Agreement -page 5 of 12 (d) Owner shall indemnify and hold harmless the City, its Partners, agents, and employees from all suits, actions, or claims of any character, type or description brought or made for or on account of any injuries or damages alleged, received or sustained by any person or persons or property, including Owner's agents or employees, arising out of, or occasioned by the City's lease of the said underground water, or the use of the property or equipment. (e) The access of rights included in this paragraph grant to the City full right of ingress and egress for the purposes stated herein including being free from any interference from any party or entity exploring or drilling for oil, gas or other minerals on or under the property. 7. Duties of City: The City hereby agrees to undertake the following duties and obligations as part of the consideration flowing to the Owner pursuant to this Agreement: (a) To make annual payments on or before January 10 of each year beginning January 10, 1992 for the underground water produced during the term of this Agreement and for the consideration as set out in the Exhibit "C' attached hereto and made a part hereof for all purposes. (b) City shall indemnify and hold harmless Owner, its Partners, agents and employees from all suits, actions, or claims of any character, type or description brought or made for or on account of any injuries or damages alleged, received or sustained by City's agents or employees, arising out of, bailcy.h=-Water Rights Lease Agreement -page 6 of 12 or occasioned by the City's negligent actions arising out of its lease of the underground water, the use of the property and equipment. City shall pay all costs and expenses incurred in connection with its operations of and on the property and equipment except for any allowed use of water by Owner. 8. Joint Agreements: All parties to this Agreement as further part of the consideration agree to the following: (a) The City, by and through its employees, agents and representatives, has personally inspected the well field site and has conducted such tests as are necessary to satisfy the City as to the availability, quality and quantity of water available, it being understood and agreed that the Owner does not guarantee water availability, potability, quality or quantity and the City is not relying upon any representations of warranties of the Owner with regard thereto. However, Owner shall do nothing to make the underground water less potable than it is as of the date of execution of this contract. The expense of any treatments or tests necessary to obtain or maintain potability shall be borne by the City. (b) City shall have the right to completely deplete the underground water beneath the property and the Owners, their heirs, successors and assigns shall not hold City responsible for such depletion . (c) City shall be responsible for construction and maintenance of all equipment used to serve the City facilities during the term of this Agreement. bailey.h20-Water Rights Lease Agreement -page 7 of 12 9. Environmental and Health Compliance: Owner agrees to abide by all existing Texas Department of Health regulations and any revisions thereto regarding land uses adjacent to municipal water wells including those set out in Exhibit "D", and attached hereto. 10. Agreement Running with the Land: This Agreement between all parties signatory hereto shall be a condition and covenant running with property and shall further constitute an equitable servitude thereon and shall bind the Owner and Owner's heirs and successors in title to the property. Any further conveyance of the property shall contain this covenant and equitable servitude. 11. Right to Enter and Operate Well Field: It is understood the City has full rights of ingress and egress in, over, and on the property so that the City may string, lay, construct, and maintain water pipelines, power lines, communication lines, air vents, blow offs, surge structures, observation wells, access roads, and any other appurtenances on and over the property necessary or incidental to any of the said operations, together with the right to erect housing for wells and associated equipment, meters and communications equipment, together with easements in perpetuity for all purposes, together with the rights to use all that part of the property reasonably necessary or incidental to the taking of ground water and the production, treating and transmission of water therefrom and delivery of said water to the existing pipelines to the City of Lubbock and the City shall, within a reasonable time after conducting any construction or maintenance operations on the property, remove therefrom any trash, debris and other materials resulting from said baileyA20-Water Rights base Agreement -page 8 of 12 activities. It is further understood and agreed to by the City and the Owner during the term of this agreement that indiscriminate traffic by motor vehicles and equipment is detrimental to the soil and the vegetation of the land surface; therefore, it is hereby agreed that both parties shall restrict the movement of such vehicles to roads, well sites, and right-of-way for pipelines and power lines which are existing or may be established in the future. The City shall make efforts to not damage soil and vegetation in the construction or maintenance of City's facilities and equipment. Existing natural gas pipelines on the property and the Owner's underground water system or other property (except as herein specifically excluded) shall be repaired by the City where same are damaged during construction or operations hereunder by the City. Where the City constructs and uses roads across and through boundary line fences, City shall furnish and install gates equipped with locks, it being understood that locking gates on the outside fences shall in no way affect the right of entry, ingress and egress of authorized officers, employees, and contractors of the City engaged in the business of the City pertaining to the full enjoyment of water rights herein conveyed. Where the City constructs and uses new roads across and through fences within the boundaries of the property, the City shall, at the option of the Owner, furnish and install gates with fasteners but without locks. During construction and for operations hereunder the City shall be allowed access to the property across other property owned or leased by the Owner. The City may make use of existing pipelines situated on the property and an existing pipeline situated on the southwest quarter of Section 41, Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas. hailey.h20-Water Rights lease Agreement -page 9 of 12 12. Performable in Lubbock County: This Agreement is performable in Lubbock, Lubbock County, Texas. 13. Attorney's fees: In the event of a dispute relative to this Agreement, the prevailing party shall be entitled to attorney's fees from the other, whether or not they dispute the results in litigation. 14. Sole and Only Agreement: This Agreement is the sole and only Agreement between the parties hereto and there shall be no alteration or amendment thereto without the written consent of Owner and City. EXECUTED by the parties hereto this 1.9 day of 1991. E. B' well, Owner ATTEST: 4iianetBoyd, City Secretary APPROVED AS TO CONTENT: . L4az , 2�? Carroll McDonald, Assistant City Manager for Utilities APPROVED AS TO FORM: onald G. Vandiver, First Assistant City Attorney bailey.h20-Water Rights ]ease Agreement -page 10 of 12 City of Lubbock By: � 0 ;�y B.C. McMinn, Mayor CONSENT AND AGREEMENT: The following corporations, partnership, and/or persons having an interest in all or a portion of the land subject to this Water Rights Lease Agreement between J.E. Birdwell, also known as John E. Birdwell, II, also known as J.E. Birdwell, II and wife Genene B. Birdwell and the City of Lubbock: (a) The Connecticut Mutual Life Insurance Company. (b) Small Business Administration, an agency of the Government of the United States of America. The corporations, agency and/or entities hereinabove named hereby agree that their liens and/or interest in the property shall be subject to the terms of this Water Rights Lease Agreement and will honor this Agreement in accord with said terms and conditions should such corporations, agency and/or entities obtain title to all or part of such land during the term of this Agreement. EXECUTED this the 44Y4,6 day of '7'4,4,g Zf , 1991. The Connecticut Mutual Life Insurance Company By: Its: Small Business Administration By: Its: Chief ort op6aciernent bai1ey.h20-Water Rights Lease Agreement -page I I of 12 (Corporate Acknowledgement) STATE OF COUNTY OF This instrument was acknowledged before me on the day of 19 , by , of The Connecticut Mutual Life Insurance Company, and on behalf of said corporation. Notary Public, State of Notary's Name Printed: Notary's Commission Expires: STATE OF TQMS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on the gr,t,� day of� 19 91 , by Denis C. Mccaghey , of Smaa lI Business Administration, corporation, on behalf of said corporation. [70ELIZARETH4Naublic, State of TEXAS O. �ALLLArtory Public, star. Name Printed: a My Commission [.pins 09.14.91 M Notary's Commission Expires: bailey.h2o-Water Rights lease Agreement -page 12 of 12 EXHIBIT "A" �F6 /•THE FOLLOWING DESCRIBED FOUR TRACTS ARE ALL SITUATED IN BAILEY COUNTY, • TEXAS, FIRST TRACT A tract of land containing 156.8• acres, more or less, out of the Southwest part of Section llumbec Twenty Five (25), Block Z, 11. D. & F. W. Johnson's -Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (SPl/4) of Section Number Twenty Five (25), Block Z, t•l. D. & F. W. Johnson's Subdivision, Bailey County, Texas. SECOW TRACT t , A tract of land containing 162.9 acres, more or less, out of the Southeast part of Section Number Forty (40), Block Z. W. D. & F. W. Johnson's Subdivision;`Iailey County, Texas, as shorn by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and ecx=only referred to as the Southeast Quarter (SE/4) of Section Number Forty (40), Block 2, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas. THIRD TRACT A tract of land containing 169.11 acres, more or less, out of the Southwest part of Section slumber Forty (40), Block Z, S•l. D. & F. 11. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and com7only referred to as the Southwest Quarter (SW/4) of Section Number Forty (40) Block Z, W. D. & F. 11. Johnson's Subdivision, Bailey County, Texas. mm--Si TRAr`r A tract of land containing 175.3 acres, more or less, out of the Southeast part of Section Number Forty One (41), Block Z, W. D. & F, W. Johson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and eormnonly referred to as .the Southeast Quarter (SE/4) of Section Number Forty One (41), Block Z, W. D. & F. 14. Johnson's Subdivision, Dailey County, Texas. --t { EXHIBIT OV PROPOSED PAYMENT SCHEDULE January 1992 $ 70,000 January 1993 $ 70,000 January 1994 $ 70,000 January 1995 $ 70,000 January 1996 $ 70,000 January 1997 $ 70,000 January 1998 $ 70,000 January 1999 $ 70,000 January 2000 $ 70,000 January 2001 $ 70,000 TOTAL: $700,000 Y CE RPT; FROM: RULES and REGULATIONS for PUBLIC WATER SYSTEMS, Texas. Departnent of Health, Water H_voiene Division, 1978, page 8, which are '.n effect in February .1965. "(c) Ground water sou•rces'and development. (1) Ground water sources shall be so located that there will be no danger of pollution from flooding or from insanitary surroundings, such as i cesspools, privies;,`s'evla•oe, livestock and animal j pens, solid waste'disom.al sites, or abandoned and improperly sealed wells. (A) no well site which is within 50 feet of a tile or concrete sanitary sewer, septic tank, or storm sewer, or which is within 150 feet of a cesspool or septic tank open -jointed drainfield will be acceptable for the development of a public drinking water supply well. Sanitary or storm sewers constructed of materials as specified in .005(c)(1)(A) may be located at distances of less than 50 feet frorr a proposed well site provided that written approval from this Department is obtained prior to construction of the well. (B) I,10 well site, shall be selected which is within 500 feet of a sewace treatment plant or within 300 feet of a sewage wet well, sewace pumping station, or a drainage ditch which contains industrial waste discharees or the wastes from sewage treatment systems. (C) No crater wells shall be located within 500 feet of animal feed lots, solid waste disposal sites or lands irriloated by sewage plant effluent. (D) Livestock in pastures shall n'ot be allowed within 50 feet of water supply wells. (E) Abandoned water wells in the area of a proposed source shall be plugged and sealed properly to prevent possible contamination of fresh water strata. The procedures and methods to be followed in plugging and sealino wells shall be obtained from the Texas Department of Water Resources, Austin, Texas. (F) A sanitary control easement'cove;ing that portion of the lands within 150 feet of the well location .shall be secured from all such property owners, and recorded in the deed records at the county courthouse. The easement shall provide that none of the pollution hazards covered above or any facilities that might create a danger of pollution to the water to be produced from the well will be located thereon. Copies of the recorded easements shall be submitted with plans•_tnd specifications submitted•for review." THIS STATEMENT IS PRESENTED TO A FILING OFFICER FOR FILING PURSUANT TO THE UNIFORM COMMERCIAL CODE. 1. DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 1A. PREFIX 18. SUFFIX BIRDF]F.LL J.E. I IT 1C. MAILING ADDRESS 1D. CITY, STATE 1E. ZIP CODE 4901 21 at STREET I LTJBBOCK TEXAS 794 2. ADDITIONAL DEBTOR (IF PERSONAL) LAST NAME1 FIRST NAME I M.I. 2A. PREFIX 28. SUFFIX BIRDWELL GENENE B 2C. MAILING ADDRESS 2D. CITY, STATE 2E. ZIP CODE 4901 21st STREET I LUBBOCK, TEXAS 79 O 3. SECURED PARTY (IF PERSONAL) LAST NAME 1 FIRST NAME 1 R.I. U.S. SMALL BUSINESS ADMINISTRATION 3A. MAILING ADDRESS 3B. CITY, STATE 3C. ZIP CODE 1611 IOTH STREET SUITE 200 LUBBOCK, TEXAS 79401 4. ADDITIONAL SECURED PARTY (IF ANY) 4A. MAILING ADDRESS 48. CITY, STATE 4C. ZIP CODE 5. ORIGINAL FINANCING STATEMENT NUMBER I 5A. ORIGINAL DATE FILED 6. CHECK THIS FINANCING STATEMENT CHANGE IS TO BE 235762 0,3/08/86 IF ❑ FILED IN THE REAL ESTATE RECORDS. APPLICABLE NO. OF ADDITIONAL SHEETS PRESENTED 7. A. ❑ AMENDMENT - THE FINANCING STATEMENT BEARING THE FILE NUMBER SHOWN ABOVE IN ITEM 5 IS AMENDED AS SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(A)) B. ❑ TOTAL ASSIGNMENT - ALL OF SECURED PARTY'S RIGHTS UNDER THE FINANCING STATEMENT HAVE BEEN ASSIGNED TO THE ASSIGNEE WHOSE NAME AND ADDRESS ARE SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(B)) C. PARTIAL ASSIGNMENT - SOME OF SECURED PARTY'S RIGHTS UNDER THE FINANCING STATEMENT HAVE BEEN ASSIGNED TO THE ASSIGNEE WHOSE NAME AND ADDRESS ARE SET FORTH IN ITEM B BELOW. A DESCRIPTION OF THE COLLATERAL SUBJECT TO THE ❑ ASSIGNMENT IS ALSO SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(C)) D. CONTINUATION - THE ORIGINAL FINANCING STATEMENT BETWEEN THE FOREGOING DEBTOR AND SECURED PARTY BEARING THE FILE ❑ NUMBER AND DATE SHOWN IN ITEM 5 AND 5A IS CONTINUED. THE ORIGINAL STATEMENT IS STILL EFFECTIVE. (INSTRUCTION 8.7(D)) E. PARTIAL RELEASE - THE SECURED PARTY RELEASES THE FOLLOWING COLLATERAL DESCRIBED IN ITEM 8 BELOW WHICH IS DESCRIBED IN THE FINANCING STATEMENT BEARING THE FILE NUMBER SHOWN IN ITEM 5 ABOVE. (INSTRUCTION B.7(E)) F. TERMINATION - THE SECURED PARTY(IES) OF RECORD NO LONGER CLAIMS A SECURITY INTEREST UNDER THE FINANCING STATEMENT ❑ BEARING THE FILE NUMBER SHOWN IN ITEM 5 ABOVE. (INSTRUCTION B.7(F)) 8' All irti ation g pumps and motors and sprinklersystems including, but not limited to one green irrigation pump, 8 inch electric motor #9504161-05-58P. three Peerless 8 inch irrigation pumps *ith electric motors #GECJ31250b, GEHFJR26102, GEDGJ414133.- Gifford Hill Circular Irrigation Sprinkle Systems 360 forJ414133 Electrogetor Circular Irrigation _ Sprinkler Systems #7752574 located In t%k:M'apbkvd of Section 25, SE part of Section 4l, S41 part of Section 40, and SE part of Section 41.. all parts of realty being in Block 7.. W.D. and F.W. Johnson's Subdivision.. Bailey County, Texas. 9. SIGNATURE(S) THIS SPACE FOR USE OF FILING OFFICER OF (DATE, TIME, NUMBER, FILING OFFICER) _,.._- DEBTOR S SIGNATURES) OF SECURED PARTY(IES) U.S. SHALL BUSINESS 1INIS TION 10.Return copy to: ADDRESS U.S. SMALL BUSINESS ADMINISTRATION CITY 1611 10TH STREET SUITE 200 STATE LUBBOCK, TEXAS 79401 ZIP L J STANDARD FORM - FORM UCC-3 (REV. 9/1/90). © 1990 OFFICE OF THE SECRETARY OF STATE OF TEXAS DEBTOR'S COPY - DETACH BEFORE MAILING THE ODEE COMPANY, P.O. BOX 550488, OALLAS, TEXAS 75355 e3ic�Z5 97141-R THIS STATEMENT IS PRESENTED TO A FILING OFFICER FOR FILING PURSUANT TO THE UNIFORM COMMERCIAL CODE. 1. DEBTOR (IF PERSONAL) LAST NAME I FIRST NAME N.I. BIRDWELL CATTLE COMPANY, a Partnershi 1A. PREFIX 1B. SUFFIX 1C. MAILING ADDRESS Route 2 1D. CITY, STATE Muleshoe, Texas 1E. ZIP CODE 79347 2. ADDITIONAL DEBTOR (IF PERSONAL) LAST NAME FIRST NAME I W77 2A. PREFIX 28. SUFFIX 2C. MAILING ADDRESS . CITY, STATE 7 2E. ZIP CODE 3. 5ECUMED FAMIY (It FEM50NAL) LA51 NAME I ri1f51 NAME I R.I. Connecticut Mutual Life Insurance Co. 3A. MAILING ADDRESS 3B. CITY, STATE 3C. ZIP CODE 140 Garden Street I Hartford, CT 1 06115 ADDITIONAL SECURED PARTY ( 4A. MAILING ADDRESS 148. CITY, STATE 14C. ZIP CODE - 5. ORIGINAL FINANCING STATEMENT NUMBER I 5A. ORIGINAL DATE FILED 1 6. CHECK THIS FINANCING STATEMENT CHANGE IS TO BE IF ® FILED IN THE REAL ESTATE RECORDS. 2602 8-16-79 APPLICABLE NO. OF ADDITIONAL SHEETS PRESENTED _. 7. A. ❑ AMENDMENT - THE FINANCING STATEMENT BEARING THE FILE NUMBER SHOWN ABOVE IN ITEM 5 IS AMENDED AS SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(A)) B. ❑ TOTAL ASSIGNMENT - ALL OF SECURED PARTY'S RIGHTS UNDER THE FINANCING STATEMENT HAVE BEEN ASSIGNED TO THE ASSIGNEE WHOSE NAME AND ADDRESS ARE SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(8)) C. PARTIAL ASSIGNMENT - SOME OF SECURED PARTY'S RIGHTS UNDER THE FINANCING STATEMENT HAVE BEEN ASSIGNED TO THE ASSIGNEE WHOSE NAME AND ADDRESS ARE SET FORTH IN ITEM 8 BELOW. A DESCRIPTION OF THE COLLATERAL SUBJECT TO THE ❑ ASSIGNMENT IS ALSO SET FORTH IN ITEM 8 BELOW. (INSTRUCTION B.7(C)) D. CONTINUATION - THE ORIGINAL FINANCING STATEMENT BETWEEN THE FOREGOING DEBTOR AND SECURED PARTY BEARING THE FILE ❑ NUMBER AND DATE SHOWN IN ITEM 5 AND 5A IS CONTINUED. THE ORIGINAL STATEMENT IS STILL EFFECTIVE. (INSTRUCTION 6.7(D)) E. PARTIAL RELEASE - THE SECURED PARTY RELEASES THE FOLLOWING COLLATERAL DESCRIBED IN ITEM 8 BELOW WHICH IS DESCRIBED ❑ IN THE FINANCING STATEMENT BEARING THE FILE NUMBER SHOWN IN ITEM 5 ABOVE. (INSTRUCTION 8.7(E)) F. TERMINATION - THE SECURED PARTY(IES) OF RECORD NO LONGER CLAIMS A SECURITY INTEREST UNDER THE FINANCING STATEMENT ® BEARING THE FILE NUMBER SHOWN IN ITEM 5 ABOVE. (INSTRUCTION 8.7(F)) 8. SIGNATURES) SIGNATURE(S) Vice President 1U.Returnccopy to: NAME I Batterymarch:AgriVest Company ADDCITY YEss CITY 500 WindingBrook Drive STATE Glastonbury, CT 06033 ZIP THIS SPACE FOR USE OF FILING OFFICER (DATE, TIME, NUMBER, FILING OFFICER) STANDARD FORM - FORM UCC-3 (REV. 9/1/90) © 1990 OFFICE OF THE SECRETARY OF STATE OF TEXAS (1) Filing Officer Copy -Numerical Reorder From: Han Forms & Services, Inc. • Austin, TX Btm-223-HART (11-1682) 23cas THE PLAINS NATIONAL BANK PW Fuston McCarty Senior Vice President September 19, 1991 City of Lubbock Lubbock, Texas 79401 Attn: Carroll McDonald Re: Water Rights Lease Agreement dated May 18, 1991 Between J.E. Birdwell II and The City of Lubbock Gentlemen: This will certify that The Plains National Bank has this day transmitted to Connecticut Mutual Life Insurance Company certified funds in the amount of $123,902.30 to payoff the balance of the Deed of Trust Note of Connecticut Mutual Life Insurance Company which is secured by a Deed of Trust on the property covered by the above Water Rights Lease. Connecticut Mutual Life Insurance is transferring its lien to our Bank to secure our loan in connection with this transaction. Connecticut Mutual Life Insurance Company is releasing its security interest on the pumps, motors and personal property which also secured its loan. Our Bank is taking a security interest in the Water Rights Lease Agreement and is subordinating its lien on the real property to your rights under the Water Rights Lease Agreement. We are not retaining a security interest in the personal property you are acquiring. The result of this transaction is that The Plains National Bank holds a first lien position on the land covered by your Water Rights Lease, subordinated to your rights, we hold a first lien security interest in the Birdwell's rights under the Water Rights Lease and we claim no security interest in the personal property you have purchased from the Birdwells. V truly yours, Fuston McCarty Senior Vice President FMC/bs 5010 University Lubbock, Texas79413 806-795-7131 CONSENT AND AGREEMENT: The following corporations, partnership, and/or persons having an interest in all or a portion of the land subject to this Water Rights Lease Agreement between J. E. Birdwell, also known as John E. Birdwell, II, also known as J. E. Birdwell, II and wife, Genene B. Birdwell and the City of Lubbock: The Plains National Bank. The corporations, agency and/or entities hereinabove named hereby agree that their liens and/or interest in the property shall be subject to the terms of this Water Rights Lease Agreement and will honor this Agreement in accord with said terms and conditions should such corporations, agency and/or entities obtain title to al or part of such land during the term of this Agreement. EXECUTED this the 19th day of September , 1991. THE PLAIN NATIONNA2L BANK By: Its: Senior Vice President THE STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on the 19th day of September , 1991, by Fuston McCarty 1 Senior Vice President of THE PLAINS NATIONAL BANK, a national banking association, on behalf of said Bank. NOTARY PUBLIC Bre Stanfield Lubbock County, Te as My Commission Expires:4-23-92 RY 25 TRANSFER OF LIEN Date: September 16, 1991 Holder of Note and lien: Connecticut Mutual Life Insurance Co. Holder's Mailing Address (including county): 140 Garden St., Hartford, CT 06154 Transferee: The Plains National Bank Transferee's Mailing Address (including county): P. O. Box 271, Lubbock, Lubbock County, Texas 79408 Note Date: August 16, 1979 Original Amount: $266,000.00 Maker: J. E. Birdwell, Individually and as Trustee of the Lee Birdwell Trust (being the same as the Genene Lee Birdwell Trust) and the Robert Scott Birdwell Trust, John Birdwell (being the same person as John E. Birdwell, III), Clay Birdwell (being the same person as Richard Clay Birdwell), Britt Birdwell (being the same person as William Britt Birdwell, Robert Scott Birdwell and Genene Lee Birdwell, a Partnership, dba Birdwell Cattle Company. Payee: Connecticut Mutual Life Insurance Co. Unpaid Principal and Interest: N/A Date of Maturity (optional): As provided therein. Note and Lien are Described in the Following Documents. Recorded in: Volume 62, Page 698 of the Deed of Trust Records of Bailey County, Texas. Property (including any improvements) Subject to Lien: The property situated in Bailey County, Texas, described in the attached Exhibit "A", which is hereby referred to and incorporated herein by reference the same as though copied herein in full at this point. Prior Lien(s) including recording information): N/A For value received Holder of the note and lien transfers them to Transferee. This Transfer is without recourse or warranty on Holder of the note and lien. When the context requires, singular nouns and pronouns include the plural. CONNECTICUT MUTUAL LIFE INSURANCE CO. Br. SA = TORE MASTANDREA Vi resident THE STATE OF CONNECTICUT § COUNTY OF 41AR7-FaRb § This instrument was acknowledged before me on the -1,3 /?-'day of 1991, by SALVATORE MASTANDREA, Vice President of CONNECTICUT MUTUAL LIFE INSURANCE CO., a Connecticut corporation, on behalf of said corporation. NOTARY PUBLIC State of Connecticut My Commission Expires: // • ,3 a - 9 c EXHIE+IT "A" FIRST TRACT A tract of land containing 156.8 acres, more or less, out of the Southwest part of Section Number Twenty -Five (25), Block Z, W.D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (SW/4) of Section Number Twenty -Five (25), Block Z, W. D. & F. W. Johnson's Subdivision Bailey County, Texas. SECOND TRACT A tract of land containing 162.9 acres, more or lens;, out of the Southeast part of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 101, Dead Records of Bailey County, .Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, .Texas THIRD TRACT_' A tract of land containing 169.11:acresa, more or less, out of the Southwest part of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision, -Bailey County, Texas, as shown by Sylvan Sanders plat recorded.,in Vol. 64, Page lei, Deed Records of Bailey County, ,Texas, and commonly referred to as the Southwest Quarter (SW/4) of Section Number Forty (40) Block A, W, D, & F. W. Johnson's Subdivision, Bailey County, Texas EOURTH_TRA91 A tract of land containing 175.3 acres, more or less, out of the Southeast part of Section Number Forty -One (41), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty -One (41), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas. A 1197 CI••• 4 ART. 7402•R. S. 1925 122Dgz,5 THE STATE OF TEXAS, IN COUNTY COURT, / Lubbock 4.W Lubbock August _�,pwwj ./091 Ann Davidson IFlix i1'G 4wve Lubbock 26th August � �1 GENENE B. BIRDWELL JOHN E. BIRDWELL 5 �Independent ,p Executrix �OIZ' lG' 26th *le UP i Arm Davidson �&e' / /Lubbock I '� �I � al � �J/L */// _ / QJ!L ART. 3IO2-R. S. 1925 WHAT CONSTITUTES LETTERS Letters Testamentary or of Administration shall be a Certificate of the Clerk of the Court granting the same, attested by the seal of such Court, and stating that such Executor or Administrator, as the case may be, has duly qualified as such as the law requires, the date of such qualification and the name of the deceased. P4 O A BILL OF BALE DATE: September 16, 1991 SELLER: GENENE B. BIRDWELL, Individually and as Independent Executrix of the Estate of J. E. Birdwell, II, Deceased SELLER'S MAILING ADDRESS (Including County): 700 San Jacinto, C- 500, Austin, Travis County, Texas 78701 BUYER: CITY OF LUBBOCK BUYER'S HAILING ADDRESS (Including County): P. O. Box 2000, Lubbock, Lubbock County, Texas 79457 CONSIDERATION: $10.00 and other good and valuable consideration PERSONAL PROPERTY: All irrigation pumps and motors andsgri�kl@rCm tin r1 �,�`}yyste7ns�r:oi+adi-ng, but not limited to, one green irrigation pump, 8 inch electric [ motor #9504161-05-588; three Peerless 8 inch irrigation pumps with electric motors #GECJ312506, GEHFJ826102, C m GEDGJ414133; G€ii3ircnia�-��rigat�DmSpris+kle�6ystezas�3� �,C��G3�S2��,33 ; El�t�ogato�-43,�cu3.sr::-err-zgatio��-Sprizs3ci�&ysteisve C%� 52614, located to wit: SW part of Section 25, SE part of Sectio 60, m 40, SW part of Section 40, and SE part of Section 41, all parts of realty being in Block Z, W.D., and F.W. Johnson's Subdivision, Bailey County, Texas. For value received, Seller sells and delivers the personal property to Buyer and warrants and agrees to defend title to the personal property to Buyer and Buyer's ssucessors against all lawful claims. When the context requires, singular nouns and pronouns include the plural. GENENE B. BIRDWELL, Individually and as Independent Executrix of the Estate of J. E. Birdwell, II, Deceased THE STATE OF TEXAS COUNTY OF TRAVIS This instrument was acknowledged before me on the A day of September, 1991, by GENENE B. BIRDWELL, individually and as Independent Executrix of the Estate of J. E. Birdwell, II, Deceased. JULIE DOSS Notary Public. Stats of Teus My Commission Expires FEB. 23.1%5 n� , --� L3�y�- NOT PUBLIC State` of Texas My Commission Expires: THEPLAINSNATIONAL BANK Fuston McCarty SeniOr Vice President October 17, 1991 Mr. Carroll McDonald Assistant City Manager for Utilities City of Lubbock 1625 13th Street Lubbock, Texas 79457 Re: Water Rights Lease Agreement J.E. Birdwell Bailey County, Texas Dear Mr. McDonald: Please be advised of this bank's recorded assigment of the Water Lease Agreement as evidenced by the enclosed documents: 1) Transfer of lien from Connecticut Mutual Life Insurance Company to The Plains National Bank of Lubbock recorded in Volume 176 on page 16 on October 7, 1991, Bailey County, Texas. 2) Deed of Trust recorded in Volume 77 on Page 633-636 on July 26, 1991, Bailey County, Texas. 3) Collateral Assignment recorded in Volume 175 on Page 302-303 on July 26, 1991, Bailey County, Texas. 4) Subordination U.S. Small Business Administration dated September 16, 1991. This letter is intended to give The City of Lubbock notice of the pledge of the Water Lease Contract and no other action is required by the City at this time. I would appreciate your acknowledgement of the notice by your signature on a copy of this letter or whomever would be appropriate. Should you have any questions, please let me know. Sin rely, uston McCarty Senior Vice President FMC/bs 5010 Universty I ubbock. Texas 79413 �06-79 -713; ACKNOWLEDGEMENT: City of Lubbock Date RETURN TO: Fuston McCarty, Senior Vice President Plains National Bank FILE NO. 370 P.O. Box 271 Lubbock, Texas 79408 TRANSFER OF LIEN Date: September 16, 1991 Holder Note and Lien: Connecticut Mutual Life Insurance Co. Holder' Is Mailing Address (including county): Transferee: The Plains National Bank Transferee's Mailing Address (including county): County,, Texas 79408 Note Date: August 16, 1979 Original Amount: $266,000.00 140 Garden St., Hartford, CT 06154 P. O. Box 271, Lubbock, Lubbock Maker: J. E. Birdwell, Individually and as Trustee of the Lee Birdwell Trust (being the same as the Genene Lee Birdwell Trust) and the Robert Scott Birdwell Trust, John Birdwell (being the same person as John E. Birdwell, III), Clay Birdwell (being the same person as Richard Clay Birdwell), Britt Birdwell (being the same person as William Britt Birdwell, Robert Scott Birdwell and Genene Lee Birdwell, a Partnership, dba Birdwell Cattle Company. Payee: Connecticut Mutual Life Insurance Co. Unpaid Principal and Interest: N/A Date of Maturity (optional): As provided therein. Note and Lien are Described in the Following Documents. Recorded in: Volume 62, Page 698 of the Deed of Trust Records of Bailey County, Texas. Property (including any improvements) Subject to Lien: The property situated in Bailey County, Texas, described in the attached Exhibit "A", which is hereby referred to and incorporated herein by reference the same as though copied herein in full at this point. Prior Lien(s) including recording information): N/A For value received Holder of the note and lien transfers them to Transferee. This Transfer is without recourse or warranty on Holder of the note and lien. When the context requires, singular nouns and pronouns include the plural- CONNECTICUT MUTUAL LIFE INSURANCE CO. -SAL,ATORE MASTANDREA Vice resident vo dq—� Pu/p EXHiE41T "A" FIRST TRACT A tract of land containing 156.e acres, more or less, out of the Southwest part of Section Number Twenty -Five (25), Block Z, W.D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (SW/4) of Section Number Twenty -Five (25), Block Z, W. D. & F. W. Johnson's Subdivision Bailey County, Texas. SECOND TRACT A tract of land containing 162.9 acres, more or less, Out of the Southeast part of Section Number Forty (40), Black Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 101, Deed Records of Bailey County, .Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision,•Bailey County, .Texas THIRD TRACT A tract of land containing 169.11.acresa, more or less, out of the Southwest part of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision, -Bailey County, Texas, as shown by Sylvan Sanders plat recarded.,in Vol. 64, Page 1811 Deed Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (SW/4) of Section Number Forty (40) Block A, W, D, & F. W. Johnson's Subdivision, Bailey County, Texas EauRTH_TBgcr A tract of land containino 175.3 acres, more or less, out of the Southeast part of Section Number Forty -One (41), Block Z, W. D, & F. W. Johnson's Subdivision, Bailey County, Texas, an shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty -One (41), Black Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas. STATE OF TEXAS w COUNTY OF BAILEY f, Clerk.of tha County Court in and for said County, do hereby certify that the foregoing instrument was filed for P.ecord in my office on the 7th day of ...... A.D. 19 91_.., at ...__......_.__ 10 :35._._ o'c!ock .... and Recorded on thv9th.... day. of ....... A.D. 19.91..., In _ .Deed Records of- Bailey County, Vol...__ _.176 - 16-18 Page ...... WITNESS MY HAND SEAL at my. office irq• Muleshoe Texas, the day, and year last above written. BARBARA Mc CAMI S H v Clerk of County Court, Bailey County, Texas. By:...-- 1/ L�!(�C ..Yd1L.�� Deputy. VOL���PG L TRANSFER OF LIEN Connecticut Mutual Life Insurance Company to Plains National Bank OCT� 7 ;20 r DEED OF TRUST FILE NO. 144 Date: July 19, 1991 Grantor: J. E. BIRDWELL (also known as John E. Birdwell, II, and as J. E. Birdwell, II) and wife, GENENE B. BIRDWELL Grantor's Mailing Address (including county): 4901 - 21st Street, Lubbock, Texas 79407 (Lubbock County) Trustee: DWIGHT I. OVERTON Trustee's Mailing Address (including county): P.O. Box 271, Lubbock, Texas 79408 (Lubbock County) Beneficiary: THE PLAINS NATIONAL BANK OF LUBBOCK Beneficiary's Mailing Address (including county): P.O. Box 271, Lubbock, Texas 79408 (Lubbock County) Note: Date: July 19, 1991 Amount: $120,000.00 Maker: J. E. BIRDWELL (also known as John E. Birdwell, II, and as J. E. Birdwell, II) and wife, GENENE B. BIRDWELL Payee: THE PLAINS NATIONAL $ANK OF LUBBOCK Final Maturity Date: January 15, 1994 Terms of Payment (optional): The principal and interest of the note are payable in three (3) equal annual installments of $40,000.00 each, plus accrued interest, with the first installment being due and payable on or before January 15, 1992, and a like installment to become due and payable on or before each succeeding January 15 thereafter until the whole principal sum is paid in full on or before January 15, 1994. Property (including any improvements): First Tract: A tract of land containing 156.8 acres, more or less, out of the Southwest part of Section Number Twenty -Five (25), Block Z, W.D. & F.W.Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Volume 64, page 181, of the Deed Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (SW/4) of Section Number Twenty -Five (25), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas. Second Tract: A tract of land containing 162.9 acres, more or less, out of the Southeast part of Section Number Forty (40), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Volume 64, page 181, of the Deed Records of Bailey County, Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty (40), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas. Deed of Trust -- Page One of Four Pages VOL. 5G 103 VOL!�! PG 04 Third Tract: A tract of land containing 169.11 acres, more or less, out of the Southwest part of Section Number Forty (40), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Volume 64, page 181, of the Deed Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (SW/4) of Section Number Forty (40), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas. Fourth Tract: A tract of land containing 175.3 acres, more or less, out of the Southeast part of Section Number Forty -One (41), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Volume 64, page 181, of the Deed Records of Bailey County, Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty -One (41), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas. The indebtedness secured hereby is additionally secured by the terms and provisions of a certain Collateral Assignment dated of even date herewith, executed by Grantors herein to the Beneficiary herein, covering the rights, title, and interest of the grantors herein in and to the lease payments receivable under that certain Water Rights Lease Agreement dated May 18, 1991, covering the properties above described, and being executed by and between J. E. BIRDWELL (also known as John E. Birdwell, II, and as J. E. Birdwell, II) and wife, GENENE B. BIRDWELL, and the City of Lubbock, a home rule municipal corporation of Lubbock County, Texas. For value received and to secure payment of the note, Grantor conveys the property to Trustee in trust. Grantor warrants and agrees to defend the title to the property. If Grantor performs all the covenants and pays the note according to its terms, this deed of trust shall have no further effect, and Beneficiary shall release it at Grantor's expense. Grantors Obligations Grantor agrees to: 1. keep the property in good repair and condition; 2. pay all taxes and assessments on the property when due; and furnish Beneficiary written evidence of such payment on or before February 1 of each year; 3. preserve the lion's priority as it Is established In this deed of trust; 4. maintain, In a form acceptable to Beneficiary, an insurance policy that: a. covers all Improvements for their full insurable value as determined when the policy Is Issued and renewed, unless Beneficiary approves a smaller amount In writing; b. contains an 80% coinsurance clause; c. provides fire and extended coverage, Including windstorm coverage; d. protects Beneficiary with a standard mortgage clause; a. provides flood Insurance at any time the property is In a flood hazard area; and f. contains such othencoverage as Beneficiary may reasonably require; 5. comply at all times with the requirements of the 60% coinsurance clause; 6. deliver the Insurance policy to Beneficiary and deliver renewals to Beneficiary at least ten days before expiration; 7. keep any buildings occupied as required by the Insurance policy; 8. it this Is riot a first lien, pay all prior lien notes that Grantor is personally liable to pay and abide by all prior lien Instruments; 9. pay Beneficiary a late charge of —0—% for any payment not made within 15 days of due date; and 10. pay to Beneficiary tax and Insurance escrows when required by Beneficiary on a monthly basis sufficient to meet all tax and Insurance obligations of the property as they become due. Beneficiary's Flights 1. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to all rights and responsibilities of Trustee. The Trustee, or any successor trustee, may conduct the sale through an attorney In fact 2. If the proceeds of the note are used to pay any debt secured by prior liens, Beneficiary Is subrogated to all of the rights and liens of the holders of any debt so paid. 3. Beneficlary may apply any proceeds received under the insurance policy either to reduce the note or to repair or replace damaged or destroyed Improvements covered by the policy. 4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform those obligations and be reimbursed by Grantor on demand at the place where the note Is payable for any sums so paid, including attorney's fees, plus interest on those sums from the dates of payment at the rate stated In the note for matured, unpaid amounts. The suns to be reimbursed shall be secured by this deed of trust 5. If Grantor defaults on the note or falls to perform any of Grantor's obligations or If default occurs on a prior lien note or other Instrument, Beneficiary may: a. declare the unpaid principal balance and earned Interest on the note Immediately due; b. request Trustee to foreclose this lien, In which case Beneficiary or Beneficiary's agent shall give notice of the foreclosure sate as provided by the Texas Property Code as then amended; and c. purchase the property at any foreclosure sale by offering the highest bid and then have the bid credited on the note. Deed of Trust -- Page Two of Four Pages Trustoe's Duties M requested by Beneficiary to foreclose this Ilan, Trustee shall: 1. either personally or by agent give notice of the foreclosure sale as required by the Texas Property Code, as then amended; 2. sell and convey all or part of the property to the highest bidder for cash with a general warranty binding Grantor, subject to prior liens and to other exceptions to conveyance and warranty; and 3. from the proceeds of the sale, pay, In this order: a. expenses of foreclosure, Including a commission to Trustee of 5% of the bid; b. to Beneficiary, the full amount of principal, interest, attorney's fees, and other charges due and unpaid; c. any amounts required by law to be paid before payment to Grantor; and d. to Grantor, any balance. Goneral Provisions 1. M any of the property Is sold under this deed of trust, Grantor shall Immediately surrender possession to the purchaser. M Grantor falls to do to, Grantor shall become a tenant at sufferance of the purchaser, subject to an action for forcible detainer. 2. Recitals in any Trustee's deed conveying the property will be presumed to be true. 3. Proceedings under this deed of trust, filing suit for foreclosure, or pursuing any other remedy will not constitute an election of remedies. 4. This lien shall remain superior to liens later created even M the time of payment of all or part of the note is extended or part of the property is released. 5. M any portion of the note cannot be lawfully secured by this deed of trust, payments shall be applied first to discharge that portion. 6. Grantor assigns to Beneficiary all sums payable to or received by Grantor from condemnation of all or part of the property, from private sale In lieu of condemnation, and from damages caused by public works or construction on or near the property. After deducting any expenses Incurred, including attorney's fees, Beneficiary may release any remaining sums to Grantor or apply such sums to reduce the note. Beneficiary shall not be liable for failure to collect or to exercise diligence in collecting any such sums. 7. Grantor assigns to Beneficiary absolutely, not only as collateral, all present and future rent and other income and receipts from the property. Leases are not assigned. Grantor warrants the validity and enforceability of the assignment. Grantor may as Beneficiary's licensee collect rent and other Income and receipts as long as Grantor is not in default under the note or this deed of trust. Grantor will apply all rent and other Income and receipts to payment of the note and performance of this deed of trust, but M the rent and other Income and receipts exceed the amount due under the note and deed of trust, Grantor may retain the excess. N Grantor defaults in payment of the note or performance of this deed of trust, Beneficiary may terminate Grantor's license to collect and then as Grantor's agent may rent the property MR Is vacant and collect all rent and other income and receipts. Beneficiary neither has nor assumes any obligations as lessor or landlord with respect to any occupant of the property. Beneficiary may exercise Beneficiary's rights and remedies under this paragraph without taking possession of the property. Beneficiary shall apply all rent and other Income and receipts collected under this paragraph first to expenses Incurred In exercising Beneficiary's rights and remedies and then to Grantor's obligations under the note and this deed of trust In the order determined by Beneficiary. Beneficiary Is not required to act under this paragraph, and acting under this paragraph does not waive any of Beneficiary's other rights or remedies. N Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's filing a proof of claim in bankruptcy will be tantamount to the appointment of a receiver under, Texas law. 8. Interest on the debt secured by this deed of trust shall not exceed the maximum amount of nonusurious Interest that may be contracted for, taken, reserved, charged, or received under law; any Interest In excess of that maximum amount shall be credited on the principal of the debt or, N that has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess shall be canceled automatically as of the acceleration or prepayment or, N already paid, credited on the principal of the debt or. N the principal of the debt has been paid, refunded. This provision overrides other provisions In this and all other instruments concerning the debt 9. When the context requires, singular nouns and pronouns Include the plural. 10. The term 'note' Includes all sums secured by this deed of trust 11. This deed of trust shall bind, Inure to the benefit of, and be exercised by successors In Interest of all parties. 12. M Grantor and Maker are not the same person, the term 'Grantor' shall include Maker. 13. In the event the ownership of this property Is transferred to any party other than the present owners, either voluntarily, by operation of law, or by lease for a term of 3 years or more, then Beneficiary shall have the option to accelerate the maturity of the Indebtedness. 14. Each provision of the deed of trust shall be severable, and Invalidation of one provision shall not Invalidate any other provision. 15. In the event there should be a deterioration In the financial condition of anyone obligated on the debt secured hereby or a deterioration In the value of the collateral, then Beneficiary shall have the right to request additional collateral adequate to secure the loan. Should the same not 6e provided within ten days of demand, Beneficiary shall have the right to accelerate the maturity of the note to the and that the same shall be due on demand. 16. Grantor shall not alienate or encumber the property to the prejudice of Beneficiary,nor commit, permit, or suffer any waste, Impairment, or deterioration of the property, and regardless of natural depreciation, shall keep the property and all its Improvements at an times In good condition and repair. The term 'waste' Is used herein In Its traditional sense, and further specifically Includes, but Is not limited to, hazardous waste. The term 'hazardous waste' as used herein Includes, but Is not limited to, hazardous and/or toxic waste, substances, pollutants, and/or contaminants. Grantor shall comply with and not violate any and all laws and regulations regarding the use, ownership, and occupancy of the property. Grantor shall perform and abide by all obligations and restrictions under any declarations, covenants, and other documents governing the use, ownership, and occupancy of the property. 17. Grantor agrees to protect, Indemnify, defend, and hold harmless Beneficiary to the fullest extent possible by law and not otherwise, from and against all claims, demands, causes of action, suits, losses, damages Qncluding, without limitation, punitive damages), violations, environmental response and/or clean-up costs, finds, penefties, and expenses (including, without limitation, reasonable attorney's fees, costs and expenses Incurred In investigating and defending against the assertion of such liabilities, as such fees, costs, and expenses are Incurred), of any nature whatsoever, which may be sustained, suffered, or incurred by Beneficiary based upon, without limitation: the ownership and/or operation of the property and all activities relating thereto; any knowing or material misrepresentation or material breach of warranty by Grantor; arty violations of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, and any other applicable federal, state, or local rule, ordinance, or statute; the clean-up or removal of hazardous waste or evaluation and Investigation of the release or threat of release of hazardous waste; any loss of natural resources Including damages to air, surface, or ground water, soil, and blota; and any private suits or court Injunctions. Deed Of Trust -- Page Three of Four Pages YQl» .... PG _ � T LY3 VOL. I`PG !�.& Grantor represents that this deed of trust and the note are given for the following purposes: The indebtedness secured hereby represents money advanced to Grantors herein, and Grantors herein warrant and represent that the property hereinabove described does not constitute any portion of their homestead, their homestead being situated in Lubbock County, Texas. Initials NOTICE: THIS CONVEYANCE SHALL ALSO SECURE ALL SUMS NOW OWING OR HEREAFTER AT ANY TIME PRIOR TO THE FINAL RELEASE HEREOF TO BECOME OWING BY GRANTOR TO BENEFICIARY A— WHETHER DIRECT, PRIMARY, SECONDARY, OR CONTINGENT AND SHALL FURTHER SECURE ALL UNPAID BALANCES WHETHER BY RENEWALS, EXTENSIONS, OR OTHERWISE OF ALL EXISTING INDEBTEDNESS AND ANY ADDITIONAL LOAN OR LOANS MADE TO GRANTOR. . BIRDWELL (also known as John E. Birdwell, II, and as J. E. Birdwell, II) GENENE B. BIRDWELL THIS WRrIZTN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN TIC PARTIES, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. . E. BIRDWELL (also known as John E. Birdwell, II, and as J. E. Birdwell, II) GENENE B. BIRDWELL THE P INS ATIONAL BANK OF LUBBOCK B ' a cLaren, vice President THE STATE OF TEXAS § COUNTY OF LUBBOCK This instrument was acknowledged before me on the 9�1 7 day of. July, 1991, by J. E. BIRDWELL (also known as John E. BidW'T k I, and as J. E. Birdwell, II) and wife, GENENE B. $I tt13FILiT{ '0;kt •;.^rl 1s+; otary Public in and for wnState of Texas G:..F.g?• Typed/printed name: ' Commission expires: Deed of Trust -- Page Four of Four Pages STATE OF TEXAS COUNTY OF BAILEY Barbara McCamish Clerk.of the County Court in and for said County, do hereby certify that the foregoin.- instrument was filed for Record in my Office on the ................ day of ....._.:....... Y................ A.D. at 26th Jul ...19..91.._, o c!cck ._A ... M., and Recorded on the 3lstday. of ........July_____ A.D. 19. 91.., in ...__...D: �':. Records of -Bailey County, Vol.._��..V_____� page ....... 633-36 WITNESS MY HAND SEAL at my. office in•. Muleshoe Texas, the day, and year last above written. BARBARA MCCAMISH ` Clerk of County Court, Bailey County, Texas. H H N W �7 � Q OA C7 A � ta a rr W W w N N O N o0 to rEn W. H - Mq rCi M rd 4 CI r rW W ,H�, + W $a H WW�W v] N9rtk Sh H $4 W rVA O 4 OUO H x", ro a N tx w W E F] VOA./-?ffPG FILE NO. 145 THE STATE OF TEXAS § COLLATERAL ASSIGNMENT COUNTY OF BAILEY The undersigned, for a valuable consideration, and for the purpose of securing THE PLAINS NATIONAL BANK OF LUBBOCK, herein sometimes referred to as BANK, at its office in Lubbock, Texas, in the payment of one certain promissory note in the original principal sum of $120,000.00, executed by J. E. BIRDWELL (also known as John E. Birdwell, II, and as J. E. Birdwell, II) and wife, GENENE B. BIRDWELL, payable to the order of THE PLAINS NATIONAL BANK OF LUBBOCK, dated of even date herewith, does hereby pledge, transfer, assign, and deliver to the said BANK the following described collateral: All of the rights, title, and interest of the undersigned J. E. BIRDWELL (also known as John E. Birdwell, II, and as J. E. Birdwell, II) and wife, GENENE B. BIRDWELL, in and to the lease payments receivable under that certain Water Rights Lease Agreement dated May 18, 1991 (a copy of which is attached hereto as "Exhibit All and is incorporated herein by reference for all purposes), covering the following described properties situated in Bailey County, Texas, by and between J. E. BIRDWELL (also known as John E. Birdwell, II, and as J. E. Birdwell, II) and wife, GENENE B. BIRDWELL (herein sometimes collectively referred to as the "Owners") and the CITY OF LUBBOCK, a home rule municipal corporation of Lubbock County, Texas, said Water Rights Lease Agreement covering the properties more particularly described as follows: First Tract: A tract of land containing 156.8 acres, more or less, out of the Southwest part of Section Number Twenty -Five (25), Block Z, W.D. & F.W.Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Volume 64, page 181, of the Deed Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (SW/4) of Section Number Twenty -Five (25), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas. Second Tract: A tract of land containing 162.9 acres, more or less, out of the Southeast part of Section Number Forty (40), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Volume 64, page 181, of the Deed Records of Bailey County, Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty (40), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas. Third Tract: A tract of land containing 169.11 acres, more or less, out of the Southwest part of Section Number Forty (40), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Volume 64, page 181, of the Deed Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (SW/4) of Section Number Forty (40), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas. Fourth Tract: A tract of land containing 175.3 acres, more or less, out of the Southeast part of Section Number Forty -One (41), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Volume 64, page 181, of the Deed Records of Bailey County, Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty -One (41), Block Z, W.D. & F.W. Johnson's Subdivision, Bailey County, Texas. And in connection with the pledge of this collateral, the undersigned agrees as follows: At the option of the BANK and without demand or notice, all or any part of the indebtedness owing by the undersigned to the BANK and the above described promissory note shall immediately become due and payable irrespective of any agreed maturity, should the undersigned default in the payment of the principal obligation herein secured or should the undersigned become insolvent or should bankruptcy proceedings be instituted against the undersigned, or an assignment be made for the benefit of the creditors of the undersigned. Upon the failure to keep and perform any agreement herein contained, the said BANK is authorized and empowered, without either demand, advertisement, or notice of any kind, to sell at public or private sale the whole or any part of the securities then held by it in pledge hereunder, and transfer and deliver the same to the purchaser or purchasers thereof, and to receive the proceeds of sale, the said BANK to have the same right to purchase at said sale as a stranger. The sale of any part of the security held in pledge hereunder shall not exhaust this power of sale, but sales may be made from time to time until all or any part of the security is sold or the debts and liabilities here secured are paid in full. The said BANK shall receive the proceeds of such sale or sales which shall be paid and credited on said debts then secured hereby, the said BANK to have full option of application thereof. Any surplus after payment in full of said debts and liabilities shall be paid to the undersigned. This instrument and all rights and powers hereunder, together with the securities then held in pledge hereunder, may be transferred and assigned by the said BANK at such time and upon such terms as it may deem advisable; and such assignee shall succeed to all the rights and powers of said BANK hereunder. EXECUTED this the 19th day of July, 199 . J BIRDWELL (also known as John E. Birdwell, II, and as J. E. Birdwell, II) THE STATE OF TEXAS § COUNTY OF LUBBOCK This instrument was day of July, 1991, by J. Birdwell, II, and as J. BIRDWELL..,. •f'>.'<�i�;_ .i.',�,.1`�.(�"��=Gac'-EGG :C- /`� GENENE B. BIRDWELL acknowledged before me on thet" E. BIRDWELL (also known as John E. E. Birdwell, II) and wife, GENENE B. N6taryiPublic in and for State of Texas Typed/printed name: Commission expires: von. 1-35rinG A-'4V?3 EXHIBIT "A" FIRST TRACT A tract of land containing 156.8 acres, more or less, out of the Southwest part of Section Number Twenty -Five (25), Block Z, W.D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (SW/4) of Section Number Twenty -Five (25), Block Z, W. D. & F. W. Johnson's Subdivision Bailey County, Texas. 6ECQ�IU-TFtAC7 A tract of land containing 162.9 acres, more or less, out of the Southeast part of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Dead Records of Bailey County, .Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, .Texas THIRD E821 A tract of land containing 169.1l.acres, more or less, out of the Southwest part of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded.in Vol. 64, Page 181, Deed Records of Bailey County, ,Texas, and commonly referred to as the Southwest Quarter (SW/4).of Section•Number Forty (40) Block A, W, D, & F. W. Johnson's Subdivision, Bailey County, Texas EOUHTH_TkgCT A tract of land containing 175.3 acres, more or less, out of the Southeast part of Section Number Forty -One (41), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty -One (41), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas. Page 3 ©f 3 SUBORDINATION (1) WHEREAS, the Small Business_ Administration (hereinafter called SBA) is the owner and holder of that certain lien of record in Volume 71, Page 61 , Deed of Trust Records of Bailey County, Texas; (2) WHEREAS, the SBA has been requested to subordinate its lien to the lien in favor of THE_PLAIN NATIONAL BANK whose address is __P_ - -- -- Lubbock _Tex4s__79408__________, securing a note in the princi�pal sum of $ 120,000.00 executed b J. E. IRD FgLLLL �aa/kk/a Birdwe7I-TI;-aJk%a-J--Sfr3we11', II Y ande..ENFNr.13� TtT RTiIv -------- ---------------------- (hereinafter called Grantor), which lien of Lender covers the following described property, to -wit: SEE "EXHIBIT A" ATTACHED HERETO ------------------------------- (') WHEREAS, Lender warrants that all its outstanding note(s) are now current and not in default. (4) NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS that the Small Business Administration, the beneficial owner and holder of the above- decribed lien, in consideration of Ten and NO/100 Dollars ($10.00) and the approval of the loan by Lender to Grantor in the amount of :t 120,000.00 for pax_off_of first lien note to Connecticut Mutual Life_ -Ini Co. ------------ ----------------------- and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, does hereby subordinate its lien above described in paragraph (1) hereof and none other, to the lien in favor of Lender, only to the collateral described in paragraph (2) hereof, securing the payment of the Note as described in paragraph (2) hereof; (5) This subordination is expressly limited to the above -described Note in favor of Lender and the aforementioned liens securing same and should said Note(s) or security instruments contain clauses intended to secure future advances or additional obligations or should Lender make additional advances or incur additional obligations, any such right to make such future advances or incur additional obligations under said clauses is subordinate, subject and inferior to that lien in favor of SBA as above described; and SBA does not hereby subordinate its Notes and liens securing same to any future renewals or extensions of the above -described note(s) in favor of Lender, or to any additional indebtedness or additional or future advances thereunder. Ordinary late charges, interest, advances for care and preservation of collateral and title thereto and court costs, including attorney's fees, are permitted additions to the debt. (6) FURTHER, this subordination is specifically limited to the collateral as described in paragraph two (2) hereof, and if SBA's lien should encompass more than the above -described collateral in paragraph two (2), this subordination is specifically limited to the above - described collateral in paragraph two (2), and none other; Page 1 of (7) NOW, FURTHER, Lender, by acceptance of this subordination, hereby acknowledges and recognizes that the said lien(s) held by the SBA remain valid and binding, and no rights thereunder shall be waived by the SBA by virtue of this subordination; (e) NOW, FURTHER, this agreement is SUBJECT TO the condition that Lender, at least thirty (30) days prior to the institution of a foreclosure under its lien instruments, gives written notice thereof to the Small Business Administration, 1611 10th Street, Suite 200, Lubbock, Texas 79401-2693. Lender further agrees to give SBA written notice of any known distress conditions; (9) This subordination is subject to the acceptance of the individuals as listed below. (10) This subordination is made without warranty, representation, or recourse as against the undersigned and applies only to the extent and to the specific property above stated, and not otherwise. All liens not hereby subordinated ar6'hereby retained. (11) -This subordination will er.eire_ninety_(90)_days_after the -------------------------- ---- maturit_y_date_of_the_Note _to_ which _subordinated,_and_such_maturity_datg is lanuar3t1+-1496-------------' IN WITNESS WHEREOF, this Subordination Agreement is executed as of 16th September this -__-_--- day of ____________7 1941.. REQUESTED BY: (Borrower, Endorser, Guarantor) Genene Birdwell, Independent Executrix of C J. E. Birdwell, II, Estate Genene Batman Birdwell REQUESTED BY: (Lender) The Plains National Bank of Lubbock -----'--=u°=--�-1---------- BY: Senior Vice President ---------------------- (Title) Recommended by: SMA B IADM N TRAT N ----------------------------- - --- - --- Winston R. Dodson D nis C. McCag y Loan Officer Chief, P.M. ACKNOWLEDGEMENT STATE OF TEXAS } } U. S. GOVERNMENT AGENCY COUNTY OF LUBBOCK BEFORE ME, the undersigned authority, on this day personally appeared De_n_isC.McCaahey_L__Chief P.M., for the purpose and consideration therein expressed and in the capacity stated as the act and deed of the Small Business Administration. G VEN UNDER MY HAND AND SEAL OF OFFICE, this day of 1991. My comm l ssi n expires: _ ( 5,�1 *2�z ------------- ��___- Notary blic in aor the State of Texas. CDCD{IDEDaD °.T F. HOi000D M.�.ry W Mk. fe��r r( trs Page 2 of 3 W crwnw.w Wh«, 1Nt r Resolution No. 3625 May 23, 1991 [ Item #28 DGV: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 Water Rights Lease Agreement by and between the City of Lubbock and J. E. Birdwell and wife, Genene B. Birdwell, 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 if fully copied herein in "detail. Passed by the City Council this 23rd day of May 1991. . McMINN, -MAYUK �� S ATTEST: anet a oy , City Secretary 'APPROVED AS TO CONTENT: C arro c onald, Assistant City - 'Manager for Utilities APPROVED AS TO FORM: , My a Oai ever, first Assistaift City Attorney Resolution No. 3625 May 23, 1991 = Item #28 WATER RIGHTS LEASE AGREEMENT STATE OF TEXAS § COUNTY OF BAILEY § This Agreement entered into by and between J.E. Birdwell, also known as John E. Birdwell, II, also known as J.E. Birdwell, II and wife Genene B. Birdwell (hereinafter called "Owner") and the City of Lubbock, a home rule municipal corporation of Lubbock County, Texas (hereinafter called "City"): WITNESSETH: WHEREAS, J.E. Birdwell, also known as John E. Birdwell, II, also known as J.E. Birdwell, II and wife Genene B. Birdwell are owners of certain real property located in Bailey County, Texas which property is more particularly described in Exhibit "A" attached hereto and made a part hereof for all purposes (the "property"); and WHEREAS, the Owner is desirous of leasing and granting an option to purchase the rights to the underground water located under the property; and WHEREAS, the City is desirous of leasing and obtaining the option to purchase the rights to the underground water located under the property to preserve and protect public health of the City's residents; and WHEREAS, the City finds it to be in the best interest of the citizens of the City of Lubbock to acquire the rights hereinafter granted to the City, including such pumps and other equipment as are presently in place and necessary for the production of the water that is the subject of this Agreement; and baileyh=-Water Rights lease Agreement -page 1 of 12 WHEREAS, this contract shall supercede and replace the Water Rights Lease Agreement between the Birdwell Cattle Company and the City of Lubbock dated the 14th day of May, 1985, effective the date of execution of this Agreement; and WHEREAS, the Owner finds it to be in their best interest to grant the rights hereinafter set out to the City; NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS: 1. Description: The Owner does by these presents, pursuant to the terms hereof, lease and grant to the City the rights to all underground water located under the property, together with all improvements and rights of surface use as herein described, situated in Bailey County, Texas and as here -below provided: (a) City may, at its sole option, allow Owner to take underground water under the property for the purposes of protecting the natural vegetation cover on the property and only as much as may be required to maintain livestock water in above ground metal tanks. Underground water shall not be used by Owner to promote farming, ranching, or other agricultural use or activities on the property without the express written consent of City; and (b) Owner shall not drill, operate, or reactivate wells on the property for the purpose of obtaining underground water during the term of this Agreement; and (c) Owner agrees to pay all costs associated with water wells on the property used to provide underground water as provided in paragraph (a) bailey.h20-Water Rights Lease Agreement -page 2 of 12 above when and if such taking is granted to Owner by City. City may, at its sole option, develop a rate per unit of underground water provided to Owner and Owner agrees to pay said rate for underground water to City. Volume charges per unit of underground water shall be assessed per meter readings, incurred in connection with uses of water used by Owner as described herein and shall not be more than $0.90 per 1,000 gallons nor less than $0.30 per 1,000 gallons used. (d) Underground water provided to Owner shall be received by Owner through facilities designed by City to protect the quality of the underground water and City's water transmission system. Such facilities may include, but are not limited to, air gaps, backflow prevention devices, and other appurtenances specified by City. Such facilities required by City shall be maintained by Owner. Failure to maintain said facilities in good working condition shall result in termination of further water deliveries to Owner by City. (e) City shall have the exclusive right to use the existing four (4) wells and to modify the existing wells as required to comply with the Texas Department of Health regulations, and shall have the right to use and operate existing pipelines on the property, said wells and pipelines more fully described on Exhibit "B" attached hereto and incorporated herein by reference. bailey.h2o-water Rights Lease Agreement -page 3 of 12 2. Purpose: The purpose of this Agreement is to provide the City with a source of potable underground water and to provide the Owner with a market for such potable underground water. 3. Term and Option to Purchase: This Agreement shall take effect upon the date of execution hereof by all parties and shall terminate December 31, 2001. For and in consideration of the sum of $100.00 paid by the City to Owner, the receipt and sufficiency of which is hereby acknowledged, the City, at its option, may purchase all of the water rights under the property from Owner for the purchase price of $1.00, such option exercisable by the City by tendering the purchase price of $1.00 to the Owner any time within 90 days prior to December 31, 2001. In the event City exercises such option, Owner agrees to execute any and all necessary documents to transfer full and complete title to City to such water rights, free and clear of any and all liens and encumbrances. 4. Purchase of pumps, motors, etc.: Owner agrees to sell and City agrees to purchase from Owner any and all water well pumps, motors, valves, electrical devices and any other similar property necessary for the operation of the four (4) existing water wells on and under the property and necessary for producing the City with a source of potable underground water (hereinafter called "Equipment") and necessary to preserve and protect the public health of the City's residents. The purchase price for the equipment shall be $20,000.00, payable in full at the execution of this Agreement. Owner shall execute a bill of sale to the City effectively conveying title to the equipment, free and clear of any and all liens and encumbrances. hailey.h20-Water Rights [rase Agreement -page 4 of 12 S. Additional Wells: City shall have the exclusive right to drill, equip, operate and maintain such additional wells on the property as the City in its sole discretion may determine to be necessary to produce sufficient underground water to meet the purpose of this Agreement. Additionally, City shall own and have the right to remove at any time any item of property placed or installed by the City on the property relative to any subsequent wells drilled on the property. 6. Duties of Owner: Owner agrees to undertake the following duties and obligations as part of the consideration flowing to the City under this Agreement: (a) To transfer to the City during the term of this Lease all of the Owner's rights under existing contracts for use on the property of electric power from existing electric lines. (b) To provide the City with access to and from the property for the purpose of installing pipelines and equipment. Such access shall be allowed for all required purposes pertinent to the operation and maintenance of said wells and pipelines. Owner shall not assess City with right of way charges or fees for said access nor shall Owner assess charges or fees for surface area used in the production of underground water. (c) To provide the City with sufficient surface area for the purposes of complying with Texas Department of Health or other regulatory agency requirements including, but not limited to, sanitary easements, maintaining livestock distances from wells, and wellhead protection zones. baley.h20-Water Rights base Agreement -page 5 of 12 (d) Owner shall indemnify and hold harmless the City, its Partners, agents, and employees from all suits, actions, or claims of any character, type or description brought or made for or on account of any injuries or damages alleged, received or sustained by any person or persons or property, including Owner's agents or employees, arising out of, or occasioned by the City's lease of the said underground water, or the use of the property or equipment. (e) The access of rights included in this paragraph grant to the City full right of ingress and egress for the purposes stated herein including being free from any interference from any party or entity exploring or drilling for oil, gas or other minerals on or under the property. 7. Duties of Citv: The City hereby agrees to undertake the following duties and obligations as part of the consideration flowing to the Owner pursuant to this Agreement: (a) To make annual payments on or before January 10 of each year beginning January 10, 1992 for the underground water produced during the term of this Agreement and for the consideration as set out in the Exhibit "C" attached hereto and made a part hereof for all purposes. (b) City shall indemnify and hold harmless Owner, its Partners, agents and employees from all suits, actions, or claims of any character, type or description brought or made for or on account of any injuries or damages alleged, received or sustained by City's agents or employees, arising out of, bailey hW-Water Rights (case Agreement -page 6 of 12 or occasioned by the City's negligent actions arising out of its lease of the underground water, the use of the property and equipment. City shall pay all costs and expenses incurred in connection with its operations of and on the property and equipment except for any allowed use of water by Owner. 8. Joint Agreements: All parties to this Agreement as further part of the consideration agree to the following: (a) The City, by and through its employees, agents and representatives, has personally inspected the well field site and has conducted such tests as are necessary to satisfy the City as to the availability, quality and quantity of water available, it being understood and agreed that the Owner does not guarantee water availability, potability, quality or quantity and the City is not relying upon any representations of warranties of the Owner with regard thereto. However, Owner shall do nothing to make the underground water less potable than it is as of the date of execution of this contract. The expense of any treatments or tests necessary to obtain or maintain potability shall be borne by the City. (b) City shall have the right to completely deplete the underground water beneath the property and the Owners, their heirs, successors and assigns shall not hold City responsible for such depletion . (c) City shall be responsible for construction and maintenance of all equipment used to serve the City facilities during the term of this Agreement. bailey.h20-Water Rights Lease Agreement -page 7 of 12 9. Environmental and Health Compliance: Owner agrees to abide by all existing Texas Department of Health regulations and any revisions thereto regarding land uses adjacent to municipal water wells including those set out in Exhibit "D", and attached hereto. 10. Agreement Running with the Land: This Agreement between all parties signatory hereto shall be a condition and covenant running with property and shall further constitute an equitable servitude thereon and shall bind the Owner and Owner's heirs and successors in title to the property. Any further conveyance of the property shall contain this covenant and equitable servitude. 11. Rieht to Enter and Operate Well Field: It is understood the City has full rights of ingress and egress in, over, and on the property so that the City may string, lay, construct, and maintain water pipelines, power lines, communication lines, air vents, blow offs, surge structures, observation wells, access roads, and any other appurtenances on and over the property necessary or incidental to any of the said operations, together with the right to erect housing for wells and associated equipment, meters and communications equipment, together with easements in perpetuity for all purposes, together with the rights to use all that part of the property reasonably necessary or incidental to the taking of ground water and the production, treating and transmission of water therefrom and delivery of said water to the existing pipelines to the City of Lubbock and the City shall, within a reasonable time after conducting any construction or maintenance operations on the property, remove therefrom any trash, debris and other materials resulting from said bailey.h20-Water Rights lease Agreement -page 8 of 12 activities. It is further understood and agreed to by the City and the Owner during the term of this agreement that indiscriminate traffic by motor vehicles and equipment is detrimental to the soil and the vegetation of the land surface; therefore, it is hereby agreed that both parties shall restrict the movement of such vehicles to roads, well sites, and right-of-way for pipelines and power lines which are existing or may be established in the future. The City shall make efforts to not damage soil and vegetation in the construction or maintenance of City's facilities and equipment. Existing natural gas pipelines on the property and the Owner's underground water system or other property (except as herein specifically excluded) shall be repaired by the City where same are damaged during construction or operations hereunder by the City. Where the City constructs and uses roads across and through boundary line fences, City shall furnish and install gates equipped with locks, it being understood that locking gates on the outside fences shall in no way affect the right of entry, ingress and egress of authorized officers, employees, and contractors of the City engaged in the business of the City pertaining to the full enjoyment of water rights herein conveyed. Where the City constructs and uses new roads across and through fences within the boundaries of the property, the City shall, at the option of the Owner, furnish and install gates with fasteners but without locks. During construction and for operations hereunder the City shall be allowed access to the property across other property owned or leased by the Owner. The City may make use of existing pipelines situated on the property and an existing pipeline situated on the southwest quarter of Section 41, Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas. bailey.h=-Water Rights [ease Agreement -page 9 or 12 12. Performable in Lubbock County: This Agreement is performable in Lubbock, Lubbock County, Texas. 13. Attorney's fees: In the event of a dispute relative to this Agreement, the prevailing party shall be entitled to attorney's fees from the other, whether or not they dispute the results in litigation. 14. Sole and Only Agreement: This Agreement is the sole and only Agreement between the parties hereto and there shall be no alteration or amendment thereto without the written consent of Owner and City. EXECUTED by the parties hereto this day of , 1991. Bir well, Owner ATTEST: Ran tte Boyd, City Seer tary APPROVED AS TO CONTENT: c Carroll McDonald, Assistant City Manager for Utilities APPROVED AS TO FORM: onald G. Vandiver, First Assistant City Attorney bailey.h20-Water Rights Lease Agreement -page 10 or 12 i OWN-,-, - - City of Lubbock By: B.C. McMinn, Mayor CONSENT AND AGREEMENT: The following corporations, partnership, and/or persons having an interest in all or a portion of the land subject to this Water Rights Lease Agreement between J.E. Birdwell, also known as John E. Birdwell, II, also known as J.E. Birdwell, II and wife Genene B. Birdwell and the City of Lubbock: (a) The Connecticut Mutual Life Insurance Company. (b) Small Business Administration, an agency of the Government of the United States of America. The corporations, agency and/or entities hereinabove named hereby agree that their liens and/or interest in the property shall be subject to the terms of this Water Rights Lease Agreement and will honor this Agreement in accord with said terms and conditions should such corporations, agency and/or entities obtain title to all or part of such land during the term of this Agreement. EXECUTED this the day of , 1991. The Connecticut Mutual Life Insurance Company -7�•s^C�o.n/�pa+v�-- S E / N {'u Rp, 4 5. � �� 131f A C019-) By: Its: Small Business Administration 0 bailey.h20-Water Rights Lease Agreement -page 11 of 12 Its: (Corporate Acknowledgement) STATE OF § COUNTY OF § This instrument was acknowledged before me on the day of 19 by of The Connecticut Mutual Life Insurance Company, and on behalf of said corporation. Notary Public, State of Notary's Name Printed: Notary's Commission Expires: STATE OF § § COUNTY OF § This instrument was acknowledged before me on the day of 19 , by of Small Business Administration, corporation, on behalf of said corporation. Notary Public, State of Notary's Name Printed: Notary's Commission Expires: bailey.h20-Water Rights base Agreement -page 12 of 12 THE FOLLOWING DESCRIBED FOUR • TEXAS, 'tO-WIT: FIRST TRACT EXHIBIT "A" TRACTS ARE ALL SITUATED IN BAILEY COUNTY, A trabt of land containing 156.8- acres, more or less, out of the Southwest part of Section Number Twenty Five (25), Block Z, 11. D. & F. pl. Johnson's -Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Dees] Records of Bailey County, Texas, and commonly referred to as the Southwest Quarter (51-7/4) of Section Number Twenty Five (25), Block Z, S•t. D. & F. W. Johnson's Subdivision, Bailey County, Texas. SECOW TRACT A tract of land containing 162.9 acres, more or less, out of the Southeast part of Section Number Forty (40), Block Z. W. D. & F. W. Johnson's Subdivision;•~Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 18r, Deed Records of Bailey County, Texas, and commonly referred to as the Southeast Quarter (SE/4) of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas. ' 1iIRD TRACT A tract of land containing 169.11 acres, more or less, out of the Southwest part of Section Number Forty (40), Block Z, W. D. & F. W. Johnson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 101, Deed Records of Bailey County, Texas, and ccx=nly referred to as the Southwest Quarter (SP1/4) of Section Number Forty (40) Block Z, W. D. & F. 1-1. Johnson's Subdivision, Bailey County, Texas. FO=i TRACT - A tract of land containing 175.3 acres, more or less, out of the Southeast part of Section dumber Forty One (41), Block Z, W. D. & F. W. Johson's Subdivision, Bailey County, Texas, as shown by Sylvan Sanders plat recorded in Vol. 64, Page 181, Deed Records of Bailey County, Texas, and commonly referred to as .the Southeast Quarter (SE/4) of Section Number Forty One (41), Bloc), Z, W. D. & F. 14. Johnson's Subdivision, Dailey County, Texas. rn to '4 EXHIBIT °C° PROPOSED PAYMENT SCHEDULE January 1992 $ 70,000 January 1993 $ 70,000 January 1994 $ 70,000 January 1995 $ 70,000 January 1996 $ 70,000 January 1997 $ 70,000 January 1998 $ 70,000 January 1999 $ 70,000 January 2000 $ 70,000 January 2001 $ 70,000 TOTAL: $700,000 a I > rCE7.PT; FROM: RULES and REGULATIONS f-or PUBLIC WATER SYSTEMS, Texas. Department of Health, b!ater Hvoiene Division, 1978, page 8, which are in effect in February .1985. "(c) Ground water sou'rces'and development. (1) Ground water sources shall be so located that there will be no danger of pollution from flooding or from insanitary surroundings, such as cesspools, privies;'"s'e,da•ae, livestock and animal pens, solid waste' disposal sites, or abandoned and improperly sealed wells. - (A) No well site which is within 50 feet of a tile or concrete sanitary sewer, septic tank, or storm sewer, or which is within 150 feet of a cesspool or septic tank open -jointed drainfield will be acceptable for the development of a public drinking water supply well. Sanitary or storm sewers constructed of materials as specified in .005(c)(1)(A) may be located at distances of less than 50 feet from a proposed well site provided that written approval from this Department is obtained prior to construction of the well. (B) No well site'sha'.1 be selected which is within 500 feet of a sewage treatment plant or within 300 feet of a sewage wet well, sewage pumping station, or a drainage ditch which contains -industrial waste discharges or the wastes from sewage treatment systems. (C) No water wells shall be located within 500 feet of animal feed lots, solid waste disposal sites or lands irriloated by sewage plant effluent. (0) Livestock in pastures shall n'ot be allowed within 50 feet of water supply wells. (E) Abandoned water wells in the area of a proposed source shall be pluooed and sealed ' properly to prevent possible contamination of fresh water strata. The procedures and methods to be followed in plugging and sealing wells shall be obtained from the Texas Department of Water Resources, Austin, Texas. (F) A sanitary control easement•cove;ing that portion of the lands within 150 feet of the well location .shall be secured from all such property owners, and recorded in the deed records at the county courthouse. The easement shall provide that none of the pollution hazards covered above or any facilities that might create a danger of •pollution to the water to be produced from the well will be located thereon. Copies of the recorded easements shall be submitted with plans -.and specifications submitted•for review."