HomeMy WebLinkAboutResolution - 2009-R0502 - Contract - OS Ranch Management LLC- Purchase Pipeline Easement - 11/12/2009Resolution No. 2009-RO502
November 12, 2009
Item No. 2.3
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 Contract for Purchase of
Easement for a pipeline easement interest located on certain property owned by OS Ranch
Management, LLC, a Texas Limited Liability Company located in Garza County, and all
related documents. Said Contract for Purchase of Easement is attached hereto and
incorporated in this Resolution as if fully set forth herein and shall be included in the
minutes of the Council.
Passed by the City Council this 12th day of
ATTEST:
Reber Garza, City Secretary
APPROVED AS TO CONTENT.
Reed, P.E., Chief Operation Officer
jDave Booher, Right -of -Way Agent
AS TJQ FORM:
November ,2009.
y
TOM MARTIN, MAYOR
stant City Attorney
Rcs.Contract Purch of Pipeline Easement -OS Ranch Management
11.609
Resolution No. 2009—RO502
CONTRACT FOR PURCHASE OF EASEMENT
This Contract For Purchase of Easement (the "Contract") is made on this 12th day of
November , 2009 ("Effective Date"), by and between OS Ranch Management, LLC, a Texas Limited
Liability Company (collectively referred to herein as "Seller") and the City of Lubbock, Texas, a Texas home rule
municipal corporation (referred to herein as "Buyer").
RECITALS
WHEREAS, Seller owns the Easement Area (as defined in the Easement Agreement (the "Easement
Agreement") attached hereto as Exhibit A) and the Temporary Easement Area (as defined in the Easement
Agreement) (the Easement Area and the Temporary Easement Area shall be collectively referred to herein as the
"Easement Area"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a permanent and a
temporary easement (collectively, the "Easement") over, across and upon the Easement Area and the Temporary
Easement Area in accordance with the terms of the Easement Agreement.
ARTICLE I
SALE OF EASEMENT
For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein
contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Easement
and all rights incident thereto as described in the Easement Agreement attached hereto and incorporated herein
for all purposes.
ARTICLE Il
PURCHASE PRICE AND EARNEST MONEY
2.01 Purchase Price. The Purchase Price to be paid to Seller for the Easement described herein is NINETY
SIX THOUSAND TWO HUNDRED SEVENTY-FOUR AND 40/100THS Dollars ($96,274.40) (the "Purchase
Price") which amount is the sum of the amounts set forth in Paragraph 12 (i), (ii) and (iii) of the Easement
Agreement.
2.02 Independent Contract Consideration. Within five (5) business days after the Effective Date, as defined
below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (the
"Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been
bargained for and agreed to as consideration for Seller's execution and delivery of this Contract. The
Independent Contract Consideration is to be credited against the Purchase Price at closing, if Closing (as
identified below) occurs.
ARTICLE III
TITLE AND SURVEY
3.01 Title Commitment. Within sixty (60) calendar days after the Effective Date, Buyer, at Buyer's sole cost
and expense, shall cause to be furnished to Buyer and to Seller and to Seller's Legal counsel a current
Commitment for Title Insurance (the "Title Commitment") for the Property, issued by West Texas Title Company
("Title Company") setting forth its exceptions to title ("Exceptions") and copies of any such Exceptions.
3.02 Survey. Buyer, at Buyer's sole cost and expense, has previously caused a current on the ground survey
for the Property (the "Survey") to be delivered to Buyer. Within fifteen (15) days after the Effective Date, Buyer, at
Buyer's sole cost and expense, shall cause to be furnished to Seller a copy of the Survey.
3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of ten
(10) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title
Commitment and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections
to one or more of the items ("Objection '), if any. Buyer acknowledges and agrees that the Easement will be
subject to (A) all items disclosed on Exhibit F to the Easement Agreement, (B) all items that would be disclosed
on an accurate commitment for title insurance covering the subject property, (C) above ground power lines, (D)
public roads as reflected on the off cial county (or state) road map(s), (E) all valid and subsisting encumbrances,
easements, agricultural leases, wind energy leases, and rights-of-way of record in the county where the subject
property is located and that affect the Easement Area and the Temporary Easement Area as of the Effective
Date, and (F) all minerals that have been severed from the surface and all oil and gas and other mineral leases
existing on the Effective Date (the foregoing, together with any exceptions to title that are accepted or waived by
Buyer in accordance with Section 3.04 shall be referred to herein as the "Permitted Exceptions"),
3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies Seller of Objections to any
of the matters furnished to Buyer pursuant to Section 3.03, the Seller shall, within ten (10) calendar days after
Seller is provided notice, either to satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer
in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. If Seiler is unwilling or unable
to satisfy the Objections within such ten (10) calendar day period., Buyer or Seller may at its option extend the
cure period up to an additional fifteen (15) days or Seller may Inform Buyer that Seller is unable or unwilling to
cure the Objections. If the Objections remain unsatisfied, and if Buyer and Seller do not agree in writing to an
extension of that period, then Buyer has the option of either.
(1) waiving the unsatisfied Objections by, and only by, notice in writing to Seller within five (5) calendar days
after the expiration of the cure period, in which event those Objections shall become Permitted
Exceptions; or
(ii) terminating this Contract by notice In writing and receiving back the independent Consideration, in which
latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject
matter of this Contract, except as provided in Section 3.06 below.
3.05 Title Policy. At Closing, Buyer, at Buyer's sole cost and expense, shall cause a standard Texas
Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the
Title Company, in the amount of the Purchase Price and insuring that Buyer has an easement pursuant to the
Easement Agreement over and across the Easement Area, subject only to the Permitted Exceptions and the
terms of the Easement, The Title Policy may contain only the Permitted Exceptions and shall contain no other
exceptions to title, with the standard printed or commorly inserted exceptions amended or deleted, at the option
of Buyer, as follows:
(i) If available based upon the Survey, the survey exception may be amended to read "shortages in area"
only (although Schedule C of the Title Commitment may condition amendment on the presentation of an
acceptable survey and payment, to be borne solely by Buyer, of any required additional premium);
(ii) no exception will be permitted for "visible and apparent easements" or words to that effect;
(iii) no exception will be permitted for "rights of parties in possession" (provided that any inspection fees or
expenses required by the Title Company to delete this exception shall be paid by Buyer);
(iv) no liens wiil be shown on Schedule B, unless the holder thereof has subordinated its lien rights to the
Easement.
Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may
object to any Exceptions it deems material, in its sole discretion.
3.06 Other Remedies. Notwithstanding anything contained in this Contract to the contrary, if Buyer
determines that the easement intended to be conveyed to Buyer and described herein and In the Easement
Agreement, or any part thereof or undivided interest therein, should be acquired by judicial procedure to procure
good title, then Buyer and Seller hereby stipulate that (1) an agreement, in the same form as the Easement
Agreement, shall govern the terms of any easement obtained by judicial procedure, and (JI) the ultimate award to
the Seller for the easement obtained by Buyer by judicial procedure, shall be the same as the consideration
CONTRACT OF SALE
McCrary - City or Lubbock Buy eller_ Page
stated in Section 2.01 above and in Paragraph 12 of the Easement Agreement, but should the Seller own a lesser
interest in the Easement Area or Temporary Easement Area Intended to be conveyed to Buyer and described
herein, such award shall not exceed that portion of the consideration stated in Paragraph 12 of the Easement
Agreement which the value of such lesser Interest of Seller bears to the value of the entire Easement Area or
Temporary Easement Area described herein. This Section 3.06 shall survive any termination of this Contract.
ARTICLE IV
COVENANTS AND AGREEMENTS
4.01 Covenants and Agreements of Seller. Seller represents and warrants that to Seller's knowledge and
subject to the Permitted Exceptions Seller has good and indefeasible title to the Easement Area and
further covenants and agrees with Buyer as follows:
(a) Seller represents that to the best of its knowledge Exhibit F to the Easement Agreement, when
prepared and delivered by Seller, will set forth a list of (1) all unrecorded agricultural leases and
agreements which encumber the subject property, (ii) all unrecorded mortgages or deeds of trust
which encumber the subject property, and (ili) all unrecorded easements granted by Grantor
which encumber the subject property. Seller will provide to Buyer within thirty (30) days after
Seller's receipt of a copy of the Title Commitment, copies of all documents to be described In the
Easement Agreement on Exhibit F that are not reflected in the Title Commitment. Buyer shall
have ten (10) days after receipt of such documents to object to any matters set forth therein that
are not contained in the Title Commitment, Thereafter, Buyer and Seller shall have the same
objection and cure rights with respect to such objections as are set forth In Section 3.04.
(b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall
not sell, assign, or convey any right, title or interest whatsoever In or to the Easement Area, or
create any lien, encumbrance, or charge thereon.
ARTICLE V
CLOSING
5.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company. The
Closing Date (herein sometimes called), shall be on the earlier to occur of (l) the date that is ninety (90) days after
the Effective Date; or (ii) such earlier date as mutually agreed on by Seller and Buyer. However, the closing date
as identified herein may be extended by either party for a period of thirty (30) days in order to comply with the
time limits contained In Article III and Article IV,
5.02 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver or cause to be delivered to the Title Company the
following items;
(i) An Easement Agreement, in the form as attached hereto as Exhibit A, duly executed by
Seller and acknowledged; and
(b) Buyer, At the Closing, Buyer shall deliver the Title Company, or obtain for itself, the following
items:
(I) The sum required by Section 2,01 in the form of immediately available Federal funds to
be paid immediately to Seller,
(Il) The Easement Agreement, In the form as attached hereto as Exhibit A, duly executed by
Buyer and acknoWedged; and
(iii) The Title Policy in the form specified in Section 3.05;
CONTRACT OF SALE
McCrary . City of Lubbock Buy Seller_ Y Page 3
Both Buyer and Seller shall deliver other items reasonably requested by the Title Company as
administrative requirements for consummating the Closing,
ARTICLE VI
DEFAULTS AND REMEDIES
6.01 Seller's Defaults and Buyer's Remedies.
(a) Seller's Defaults. Seller Is in default under this Contract on the occurrence of any one or more of
the following events: (i) Seller falls to meet, comply with or perform any covenant, agreement, or
obligation on Seller's part required within the time limits and in the manner required in this
Contract, or (ii) Seller fails to deliver at Closing, the items specified in Section 6.01(a) of this
Contract for any reason other than a default by Buyer under this Contract or termination of this
Contract pursuant to the terms hereof prior to Closing.
(b) Buyer's Remedies, It 7.01(a) occurs, Buyer may: (i) terminate the Contract and receive the
Independent Consideration as Buyer's sole and exclusive remedy, or (Ii) enforce specific
performance,
6.02 Buyer's Default, Seller's Remedies.
(a) Buyer's Default. Buyer is In default under this Contract on the occurrence of any one or more of
the following events: (i) Buyer fails to meet, comply with or perform any covenant, agreement, or
obligation on Buyer's part required within the time limits and in the manner required in this
Contract, or (ii) Buyer falls to deliver at Closing, the items specified In Section 6,02(b) of this
Contract for any reason other than a default by Seller under this Contract or termination of this
Contract pursuant to the terms hereof prior to Closing.
(b) Seller's Remedies. If 7.02(a) occurs, Seller may: (i) terminate the Contract and retain the
Independent Consideration as Seller's sole and exclusive remedy, or (ii) enforce specific
performance.
ARTICLE VII
MISCELLANEOUS
7.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in
writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of,
in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested,
postage prepaid, addressed as follows:
SELLER:
JS Ranch Management, LLC,
ATexas Limited Liability Company
P.O. Box 790
Post, TX 79356
Copies to:
For Seller.
John C. Cox, Esq.
K&L Gates, LLP
1717 Main, Suite 2600
BUYER:
Attn: Davy Booher
City of Lubbock
1625 13th Street
Lubbock, Texas 79401
Telecopy: (806)775-3074
For Buyer:
Attn: Marsha Reed
City of Lubbock
1625 13th Street
CONTRACT OF SALE ANK
McCrary -City of Lubbock Bu — Seller_ Page 4
Dallas, Texas 75201 Lubbock, Texas 79401
Telecopy: (214) 939-5849 Telecopy: (806)775-2051
The parties may change their address effective In the same manner as other notices provided hereunder.
7.01 Governing Law and Venue. This Contract is being executed and delivered and is intended to be
performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and
interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR
ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN THE COUNTY WHERE THE PROPERTY
IS LOCATED.
7.02 Entirety and Amendments. This Contract embodies the entire agreement between the parties and
supersedes all prior agreements and understandings, if any, related to the Easement, and may be amended or
supplemented only in writing executed by the party against whom enforcement is sought.
7.03 Parties Bound, This Contract is binding upon and Inures to the benefit of Seller and Buyer, and their
respective heirs, executors, administrators, successors and assigns
7.04 Further Assurances. Seller and Buyer agree to perform, execute and/or deliver, or cause to be
performed, executed andior delivered at the Closing or after the Closing, any further deeds, acts, and assurances
as are reasonably necessary to consummate the transactions contemplated hereby.
7.05 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and
made a part of, this Contract for all purposes.
7.06 Agreement in Lieu of Condemnation. This Contract and the Easement Agreement are entered Into by
Buyer and Seller as a settlement and compromise lieu of condemration and the consideration set forth herein and
the covenants and agreements of the Buyer set forth in the Easement Agreement are given to Seller in
compensation for the acquisition of the Easement in accordance with the Easement Agreement. This Section
706 shall survive Closing and the execution and delivery of the Easement Agreement,
7.07 Authority, Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by
the City Council of the City of Lubbock to the Deputy City Manager of Buyer, or his designee. When the context
requires, singular nouns and pronouns include the plural, The undersigned represent and warrant their respective
authority to execute this contract, and to convey the Interest In property described herein
SELLER:
OS RANCH MANAGEMENT, LLC, a Texas Limited Liability Company
Executed by Seller on the 3 D $ay of C;606W 2009.
BUYER:
CITY OF LUBBOCK
TO ARTIN, MAYOR
CONTRACT OF SALE
McCrary -City of Lubbock Buy 5etier, ' Page 5
Executed by Buyer on the 12th day of November 2009,
ATTEST'.
(P —Ap", -- '_
Reber Garza, City Secretary
APPROVED AS TO CONTENT;
arsha Reed, Chief Operations Officer
Dave Booher, Right -of -Way Agent
APPROVED AS ORM.
.s fi 'Vzyus-0-.sz
CONTRACT OF SALE /J�j
McCrary -City of Lubbock Buyef/a Seller- page 6
EXHIBIT "A" to
Contract of Sale
EASEMENT FORM
CONTRACT OF SASE,
McCrary -City of Lubbock BuSeller Page
Resolution No. 2009—R0502
EASEMENT AGREEMENT
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS, THAT:
COUNTY OF
Subject to the terms and conditions set forth in this Easement Agreement (this
"Agreement'), OS Ranch Management, LLC, a Texas Limited Liability Company ("Grant 1)
whose address is P.0, Box 790, Post, TX 79356 for and in consideration of the covenants
contained herein and other good and valuable consideration to it paid by The City of Lubbock,
Texas (the "Grantee") with offices at 1625 13"' Street, Lubbock, Texas 79401, the receipt and
sufficiency of which are hereby acknowledged, hereby grants unto Grantee an easement (the
"Easement') subject to the terms of this Agreement through, over, under, upon, across and
within the sixty foot (60') wide area described by metes and bounds on Exhibit A (the
"Easement Area') situated in Garza County, Texas:
The Easement shall be for the survey, construction, installation, operation, inspection,
maintenance, replacement, repair, and removal of (i) a single underground pipeline located
within the Easement Area for the transportation of fresh water (the "Pi—ireline"), and (ii) the
following equipment and appurtenances related to the Pipeline and situated within the Easement
Area: conduits, drain (blow -off) valves, valve boxes, meter boxes, vents (air valves), manholes,
manhole covers (with post around manholes), corrosion monitoring test stations, pipeline
markers, fence gates, impressed current deep well anode stations with power supplies, flow
meters, system communication lines (including, but not limited to, fiber optic lines), splice
boxes, and corrosion control equipment, corrosion monitoring equipment and other equipment
and facilities related thereto (collectively, the "Pipeline Equipment")(the Pipeline together with
the Pipeline Equipment shall be collectively referred to herein as the "Pipeline Systern'D.
Further, Grantor hereby grants unto Grantee a temporary construction easement (the "Temporary
Easement') for the construction and installation of the Pipeline System over an area sixty feet
(60') in width located adjacent to, and abutting, the Easement Area (the "Temporary Easement
Area") on the northeast side of the Easement Area as more specifically described on Exhibit A.
The Temporary Easement shall terminate and expire upon the earlier of (i) completion of all
construction activities related to that portion of the Pipeline System situated within the Easement
Area, or (ii) June 30, 2014 (the "Anticipated Pipeline Completion. date"), In the event that the
Pipeline System within the Easement Area has not been completed by the Anticipated Pipeline
Completion Date, Grantee shall have the option to extend the term of the Temporary Easement
for up to two consecutive periods of two (2) years each with the first extension to commence on
the Anticipated Pipeline Completion Date and the second extension to commence on the second
anniversary of the Anticipated Pipeline Completion Date, provided, however, that the Temporary
Easement shall in any event terminate and expire upon the completion of the Pipeline System
within the Easement Area and thereafter be of no further force and effect., In order to exercise
its right to extend the Temporary Easement as aforesaid, not later than thirty (30) days prior to
the Anticipated Pipeline Completion Date (or the second anniversary of such date if the
Temporary Easement has already been extended) Grantee shall deliver to Grantor written notice
that it intends to extend the Temporary Easement and pay to Grantor of the sum of $9,627.44 for
each requested two (2) year extension. Upon request of Grantor, after completion of that portion
City of bilkock Easement Agreement Grantor_ Grantee_ Page 1
of the Pipeline System situated within the Easement Area, or the termination and expiration of
the Temporary Easement, Grantee shall execute and deliver to Grantor a release of the
Temporary Easement in a form acceptable for filing.
The Easement and Temporary Easement are specifically made by Grantor and accepted
by Grantee subject to the following terms, covenants, obligations and conditions:
1. Permitted Uses. Grantee may use and occupy (a) the Easement Area for
the sole purpose of (i) survey, construction, installation, operation, inspection,
maintenance, replacement, repair, and removal of the Pipeline and Pipeline Equipment;
(ii) the construction, installation, maintenance and repair of a pipeline trail road within
non -cultivated areas of the Easement Area, and (iii) ingress, egress and regress for
people, material, and equipment along, over and across the Easement Area to accomplish
the purposes stated in paragraph I a)(i) provided that after completion of construction of
the Pipeline System situated within the Easement Area, and except in cases of emergency
or repair, on cultivated land ingress, egress and regress shall be permitted in, but limited
to, the use of then -existing tum roves, and (b) the Temporary Easement Area (during the
term thereof) for the sole purpose of: (i) survey, construction and installation of the
Pipeline and Pipeline Equipment; (ii) ingress, egress and regress for people, material, and
equipment along, over and across the Temporary Easement Area to accomplish the
foregoing, and (c) during the term of the Temporary Easement, the Easement Area and
the Temporary Easement Area may be used for the temporary storage of materials and
equipment (including pipe for the Pipeline and Pipeline Equipment) (collectively, the
"Permitted Uses"). Grantee shall use the Easement Area and the Temporary Easement
Area (for the term thereof) for the Pennitted Uses, and activities reasonably related
thereto, and for no other purposes or uses,
2. Legal Requirements; No Interference. Grantee covenants and agrees that
its use of the Easement Area and Temporary Easement Area, and its operations
conducted thereon, shall at all times comply with this Agreement and all material
applicable local, state and federal laws, orders, rules, regulations, standards, licensing,
permitting and other legal requirements including, without limitation, all material
environmental laws, orders, rules, regulations, standards, licensing and permitting (the
"Legal Requirements') and the safety guidelines shown on Exhibit B attached hereto
and made a part hereof. Further, Grantor and Grantee shall each conduct their activities
in such a manner as to not unreasonably interfere with, or cause disruption to, the other's
business, operations and property or those of a third party entering or crossing the
easement.
3. Due Care. Grantee covenants and agrees to construct the Pipeline System,
and to perform its obligations under this Agreement, in a prudent manner and with due
professional care for Grantor's property, business and operations, and according to
standard industry practices.
4. Construction Specifications. Grantee covenants and agrees to construct,
maintain, repair and replace the Pipeline System in the Easement Area in accordance with
the following:
City of Lubbock Easement Agreement Grantor___ Grantee_ Page 2
(a) Minimum Pipeline Depth. The Pipeline System shall be so located or
shall be buried at a sufficient depth so it will not interfere with farming activities
currently in practice and cultivation of the soil at the soil levels as they exist at
time of execution of this Easement and, in any event, the Pipeline shall be buried
at such depth as will allow a minimum coverage of forty-eight inches (48") for
current ranchland and a minimum coverage of sixty inches (60") for current
farmland. Any Pipeline Equipment that will be installed above plow depth on
cultivated lands shall only be installed at the locations identified on Exhibit C or,
if no locations are specified on Exhibit C, at such other locations that will not
interfere with farming activities and which are approved in writing by Grantor,
such approval not to be unreasonably withheld.
(b) Ditching, Unless determined by an outside engineer to be impractical due
to the existence of rock or material elevation change, all ditching shall be in
accordance with the "double ditch" method whereby the top eighteen inches (18")
of soil (the "Top Soil") shall be removed from the Pipeline trench (the "Trench")
and stored in a pile that is segregated from all other material and debris, and the
remaining soil (the "Bottom Soil") shall be removed from the Trench and stored
in a pile that is segregated from the Top Soil, When the Trench is refilled after
the Pipeline has been laid and the Pipeline Equipment installed, the Bottom Soil
shall be placed in the trench first leaving room to fill the uppermost eighteen
inches (18") of the Trench to be filled with Top Soil, 'Top Soil shall be used to fill
the remainder of the Trench. Any Bottom Soil remaining after filling the Trench
shall (i) on cultivated lands, be removed from the Easement Area and disposed of
off of the property of Grantor, and (ii) on uncultivated lands, shall be spread over
the Easement Area and Temporary Easement Area in a manner acceptable to
Grantor and that will not restrict or limit the re -growth of natural vegetation.
Rocks or other debris arising in connection with clearing the Easement Area and
ditching the Trench for the Pipeline System shall be removed as set forth in
Paragrapher below. As stated above, single ditching shall be allowed in all
areas where "double ditching" is impractical (as determined by an outside
engineer) due to the existence of rock or material elevation change.
(c) Trench Ley elin . 'Within uncultivated areas, upon completion of
construction of the Pipeline System, excess material may be mounded over the
Trench and covered with Top Soil; provided that the mound will be limited to a
maximum of one foot (1') in height and will be graded to allow natural drainage.
Within cultivated areas, upon completion of construction of the Pipeline System,
the Easement area shall be leveled to grade (or as otherwise agreed to by Grantor
in writing). In all instances the Easement Area and Temporary Easement Area
shall be cleaned up in a professional manner.
(d) Maximum, Open Segments. The construction, installation, maintenance
and repair of the Pipeline System shall be performed in segments so that there is
never more than one thousand feet (1000') of open Trench at any one time and no
City of Lubbock Easement Agreement Grantor.___. Grantee— Page 2
open segment shall be open for more than seven (7) days; provided, however, that
excavations for pipeline appurtenances and tunnel/bore crossings may remain
open for up to thirty (30) days.
(e) Cgmpaction. Grantee shall mechanically compact all fill material to
prevent any subsidence. To the extent there exists or hereafter arises any
subsidence or erosion arising in connection with the construction, installation,
maintenance or repair of the Pipeline System, Grantee shall refill with top soil, re -
compact and re -grade all affected areas and take any further action reasonably
required to return the surface to a substantially similar, or better, condition than
adjacent undisturbed areas and prevent future subsidence or erosion. In
furtherance of the foregoing, Grantee shall inspect the Pipeline at an interval of (i)
six months, (ii) twelve months, and (iii) eighteen months after initial Pipeline
System construction, and promptly refill and re -compact any subsidence or
erosion existing at such times in order to return the affected area to grade and to a
substantially similar, or better, condition than adjacent undisturbed areas and take
any further action reasonably required to prevent future subsidence or erosion.
The inspections periods set forth above are not intended to be a limitation on
Grantee's ongoing duty to fill, compact and maintain the grade of the land around
the Pipeline. Accordingly, in the event that Grantor at any time discovers any
subsidence or erosion after the installation of the Pipeline (whether before or after
expiration of the inspection periods provided for above), Grantor may provide
notice of such subsidence or erosion to Grantee. Within thirty (30) days' after
Grantee's receipt of such notice, Grantee shall commence and thereafter diligently
and without unreasonable delay refill with top soil, re -compact and re -grade all
affected areas and take any additional action as may be reasonably required to
return the affected area to grade and to a substantially similar, or better, condition
than adjacent undisturbed areas and to prevent future subsidence or erosion.
(0 Disc Plowing. If requested by Grantor, after completion of construction of
the Pipeline the top 6 to 12 inches of the Easement Area and Temporary Easement
Area through cultivated fields shall be disc plowed to loosen up soil for farming
operations.
(g) Gates. Grantee shall install gates at each existing fence to be crossed
within the Easement Area and the Temporary Easement Area in order to enable
Permitted Uses for the Pipeline System. Before a fence is cut by Grantee, Grantee
will set H -braces on the outside boundaries of the Temporary Easement and
Easement Area (e.g. 120 feet apart) then tie -off and cut the fence adjacent to each
H -brace. The Grantee shall then set temporary T -posts and string barbed wire
along the 120 foot opening and install a temporary barbed wire gate or gates, as
needed. At the time of construction through the affected area, the Grantee will
remove the temporary T -posts so as to permit construction activities. At night,
Grantee will install temporary fencing. Upon completion of the subject Pipeline
section, Grantee will install interior H -braces and a permanent 14 foot gate(s).
Grantee will then install permanent T -posts and barbed wire to connect the H -
City of Lubbock EasemeutAgreement Grantor_ Grantee_ Page 4
braces, Fences, gates, gate posts and comers installed by Grantee shall meet the
specifications described in, and be installed as specified in, Exhibit D attached
hcrcto and made apart hereof and shall be installed with professional care and
according to standard industry practices. All gates installed by Grantee shall be
made of painted steel pipe. Except during construction as described above, all
fence gates on the exterior of Grantor's property shall be closed and locked at all
times, unless Grantor in its sole discretion consents to temporary cattle guards or
other arrangements. All gates on the interior of Grantor's property shall be left as
found. All cattle guards on the exterior of Grantor's property shall be closed and
locked at night unless otherwise requested by Grantor, After construction,
Grantee shall put a lock on all gates and Grantor may install its own lock on such
gates; provided, however, that at all times Grantor and Grantee shall have full and
complete access to the Easement Area,
(h) Debris Removal. Grantee covenants and agrees that at Grantee's sole cost
and expense any and all debris materials of any kind arising in connection with
the construction, installation, operation, inspection maintenance, replacement,
repair and removal of the Pipeline System, including trash, trees, timber, wood,
bushes, shrubs and brush, and other debris materials (collectively, "debris"), shall
be removed by Grantee from Grantor's property and disposed of properly so as to
make the surface substantially similar to, or better than, adjacent undisturbed
areas. Further, all rocks and rubble arising in connection with the construction,
installation, operation, inspection, maintenance, replacement, repair, and removal
of the Pipeline System will be removed from Grantor's property so as to make the
surface substantially similar to, or better than, adjacent undisturbed areas.
Notwithstanding the foregoing, Grantee and Grantor by mutual agreement may
determine that (i) Grantee may shred or mulch trees, timber, wood, bushes, shrubs
and brush and scatter such debris over Grantor's property, (ii) Grantee may burn
trees, timber, wood, bushes, shrubs and brush, (iii) Grantee may store or scatter
rocks and rubble at locations designated by Grantor, or (iv) any other reasonable
method to dispose of trees, timber, wood, bushes, shrubs, brush, rocks and rubble.
If any trees, timber, wood, bushes, shrubs and brush are burned on site, the
Grantee shall maintain constant watch over burn piles with adequate firefighting
equipment on site. Grantee further agrees that neither Grantee nor its employees,
contractors, agents nor representatives will burn any trees, timber, wood, bushes,
shrubs or brush cleared from the Easement Area or the Temporary Easement Area
during burrs bans designated by county officials,
(i) Temporary Crossings. During construction of the Pipeline System,
crossovers shall be installed by the Grantee over the Trench to provide access for
Grantor (and Grantor's personnel, equipment and livestock) over the Trench to
and from Grantor's adjacent property (i) over all existing paved or unpaved roads,
(ii) for livestock (at no less than 500 foot intervals), and (iii) at such other
locations as are reasonably designated by Grantor. Further, Grantee may, at
Grantee's option, construct temporary fencing near any open hole or trench.
City of Lubbock Easement Agreement Grantor__ Grantee_- Page 5
0) Reseeding. If any of the Easement Area or Temporary Easement Area
consists of grassland, Grantee shall, using the recommended procedure (either via
drill or broadcast), plant a native (e.g. native to the local area) seed mix of grass
and forbs selected by Grantor but subject to reasonable availability.
(k) Existing Terraces; Dgmgge to Adi,aeent PropeM.
(i) Terraces. Existing terraces in the Easement Area and
Temporary Easement Area will be replaced upon the backfill of the trench
excavated in connection with the construction of the Pipeline System. In
the event that the breach of any existing terrace results in any damage to
Grantor's adjacent property or the breach of any down grade terraces
(whether or not within the Easement Area or the Temporary Easement
Area), Grantee shall repair any such damage and return the surface of
affected areas to a condition substantially similar to, or better than,
adjacent undisturbed areas,
(ii) Damage to Adjacent Proper . In the event that the
activities of Grantee (or any of its agents, employees, contractors,
subcontractors, suppliers or invitees and/or their equipment or vehicles)
within the Easement Area or Temporary Easement Area result in any
damage or erosion to Grantor's property located outside of the Easement
Area or Temporary Easement Area, Grantee shall repair any such damage
or erosion and return the surface of the affected areas to a condition
substantially similar to, or better than, adjacent undisturbed areas.
(l) Diversions; Terraces, Stream Beds. Grantee shall install water diversions
and terraces where necessary or appropriate in order to divert water away from
excavated areas, to prevent erosion and to permit the natural flow of water that
existed prior to construction of the Pipeline. Further, where the Easement Area
crosses any wet or seasonal stream beds, all Permitted Uses shall be conducted in
a recognized manner to protect said stream beds and to prevent erosion
(m) Bl�. Prior to blasting within the Easement Area, Grantee will notify
Grantor. However, no blasting will be permitted within five hundred feet (500)
of any existing buildings, pipelines or wells; provided, however, that Grantor shall
provide written disclosure of the location of any such improvements that are
located underground before such blasting.
(n) Trail Road. The pipeline trail road shall not exceed twelve feet (12') in
width. The trail road shall be constructed, repaired and maintained in a manner
consistent with Grantee's needs and purposes; provided, however, such trail road
shall include culverts and water diversions where appropriate to prevent washouts
and erosion. Grantee shall level or fill all ruts and washouts and otherwise
maintain the trail road on a reasonable basis. Grantor shall have use of such road
within Grantor's property so long as Grantor's use does not unreasonably
City of Lubbock Easement Agreement Grantor— Grantee— Page 6
interfere with Grantee's use of the Easement Area and Temporary Easement Area.
After completion of the construction of the Pipeline System and except in cases of
emergencies, in order to avoid ruts and washouts, Grantee and Grantor shall use
reasonable efforts to avoid the use of the trail road when wet.
(o) Necessa Tem r Use. Grantee shall have the right to use Grantor's
property located immediately adjacent to the Easement Area and Temporary
Easement Area for the following:
(i) On rangeland, detouring around natural impassable
impediments within the Easement Area or Temporary Easement Area such
as canyons, large boulders or large trees; or
(ii) the repair and removal of equipment or vehicles stranded
within the Easement Area or Temporary Easement Area, but only to the
extent is there not sufficient area within the Easement Area and
Temporary Easement Area to permit such repair and removal.
Except as provided in this Paragraph 4(o), Grantee (and its elected
officials, officers, agents, servants, employees, representatives, contractors,
independent contractors, subcontractors, or any employee or invitee of any of
them) shall not at any time go upon the property of Grantor outside of the
Easement Area and Temporary Easement Area. To the extent that any such
incursion upon the Iands of Grantor adjacent to the Easement Area and
Temporary Easement Area results in any damage to such lands, Grantee shall be
liable for such damage and in any event covenants and agrees that the affected
areas shall be returned to the condition that is substantially similar to, or better
than, adjacent undisturbed areas,
(p) Stakin of Easement. Prior to commencement of construction of the
Pipeline System, Grantee shall stake the exterior boundaries of each side of the
combined Easement Area and Temporary Easement Area (e.g. the parallel lines,
120 feet apart, that mark the outside boundaries of the combined 60 foot
Easement Area and 60 foot Temporary Easement Area). Such boundary shall be
staked with clearly visible, above ground markers so that all parties can oasily
view the boundary of the easements. Such markers shall be maintained until
completion of construction of the Pipeline System,
(q) Tree Grubbing. Upon commencement of work on the construction of the
Pipeline System (and prior to trenching), Grantee shall grub (using an excavator
modified to grub mesquite) all mesquite within the Easement Area and shall also
grub any mesquite that has been destroyed, damaged, bladed, or cut within the
Temporary Easement Area. At its option Grantee may grub the entire Temporary
Easement Area All debris arising as a result of grubbing activities will be
disposed of in accordance with Paragraph, 4(h) above. Grantor acknowledges that
Grantee is not liable for any re -growth of vegetation after any tree grubbing
City of Lubbock Easement Agree ment Grantor _ Grantee— Page
identified in this Paragraph 4 W or after any double ditching as identified in
Paragraph 4 (b) and that re -growth of vegetation will occur over time.
5. Cure Period. In the event that Grantee is in violation of any of the terms
of this Agreement, Grantor shall give written notice of, and an opportunity to cure such
violation to Grantee. Grantee covenants and agrees within thirty (30) days of receipt of
such notice to commence to cure, and thereafter diligently and without unreasonable
delay pursue to cure, such violation; provided, however, that the cure of any subsidence
or erosion will be completed within one hundred and twenty (120) days after receipt of
such notice to commence to cure.
6. Record Drawings To Be Provided to Grantor, Upon completion of the
construction of the Pipeline System, Grantee shall, at Grantee's sole cost, provide to
Grantor record drawings showing the location within the Easement Area of the Pipeline
and each item of Pipeline Equipment.
7. Abandonment of Easement. Grantee may abandon the Pipeline System
solely by an ordinance adopted by the City Council of The City of Lubbock, Texas (or
any successor governing body of The City of Lubbock Texas) that authorizes tlio
abandonment of the Pipeline System. Any such abandonment will not be effective until
it is evidenced by notice in writing, signed by the Grantee's official representative, and
filed of record in the county where the Easement Area is located. if Grantee should
abandon the Pipeline System as aforesaid, then this Easement and the rights herein
granted shall automatically terminate and revert to, and become property of, Grantor, its
successors and assigns, and title to the Pipeline System located within the Easement Area
shall revert to Grantor, its successors and assigns and Grantor may, at its option, remove,
dispose of and/or sell any pipe or Pipeline Equipment within the Easement Area.
8. Easement Term. The "Easement Term" is hereby defined as the period of
time beginning with the Effective Date (hereinafter defined) and continuing until such
time that the Pipeline System is abandoned by Grantee as provided in Paragraph 7 above.
9. Covenant to Maintain Pipeline. Grantee shall at all times during the
Easement Term, at Grantee's sole cost and expense, exercise due care and diligence in
the use of the rights And privileges herein granted and keep the Pipeline System in a safe
and properly maintained condition. Grantee shall promptly make all necessary or
appropriate repairs, replacements and renewals of the Pipeline System, and keep and
maintain the Pipeline System in good order, condition, and repair (ordinary wear and tear
excepted), and in such condition as may be required by applicable Legal Requirements.
Grantee shall keep the Easement Area in good order, condition and repair and free of all
debris following any work related to Permitted Uses on the Pipeline System
10. Permits. Grantee shall be responsible for obtaining all permits necessary
for Permitted Uses within the Easement Area and the Temporary Easement Area.
Without limiting the foregoing, and to the extent required, Grantee will secure and
maintain any and all environmental permits required by the Texas Commission on
City of Lubbock Easement Agreement Grantor_ Grantv.,— Page 0
Environmental Quality relating to the Pipeline System and this Agreement. Grantee will
provide Grantor with a copy of Grantee's environmental permit(s), if applicable, and
notify Grantor of any proposed changes to said permit(s),
11. Additional Uses. Subject to the limitations set forth in this paragraph, the
Easement is non-exclusive and Grantor shall at all times have the right to (i) use and
enjoy the Easement Area for any purpose not specifically prohibited herein; (ii) grant
easements and rights of way over, under, upon, across and within the Easement Area to
such persons as Grantor deems proper; (iii) construct and maintain improvements upon
the Easement Area; and (iv) construct and maintain irrigation systems (including drip and
overheard irrigation systems) and components and water distribution lines to cultivate
and service Grantor's property (including the Easement Area), provided however, (A) no
buildings or reservoirs may be constructed upon the Easement Area, (B) improvements
(other than drip irrigation lines and overhead irrigation equipment) may not parallel the
Pipeline within the Easement Area , (C) all power lines, pipelines (other than drip
irrigation lines and overhead irrigation systems), and telephone and other
telecommunication lines must cross the Easement Area at no less than a 45° (forty-five
degree) angle, (D) underground power lines and any metallic pipelines (excluding
irrigation water lines and water distribution lines used to service Grantor's property) must
have a minimum separation of two feet (2') from the Pipeline and must meet industry
standards in order not to adversely affect or damage the Pipeline, and (E) fences
constructed by Grantor within the Easement Area must have gates installed so that
Grantee at all times has access over and across the Easement Area. In the event that
Grantor determines to construct (or grant the right to any third party to construct)
improvements within the Easement Area that are not addressed above, Grantor shall
provide not less than thirty (30) days prior written notice to Grantee during which time
Grantee may have the proposed improvements analyzed by its outside engineers. If
during such thirty (30) day period Grantee provides to Grantor a detailed analysis of why
the proposed improvements will adversely affect the Pipeline or Pipeline System, Grantor
shall not construct such improvements until such time as Grantor and Grantee's engineers
agree upon a methodology for the construction of such improvements that will not
adversely affect the Pipeline, such agreement not to be unreasonably withheld by either
Grantor or Grantee. Grantee and Grantor will at all times use their good faith efforts to
accommodate the needs and activities of one another. Grantee covenants and agrees not
to interfere with Grantor's rights to cultivate, use and enjoy the lands for any purpose,
except as limited herein, provided that any such operation or use by Grantor, or Grantor's
heirs, successors or assigns, shall not unreasonably interfere with or endanger the
operations or integrity of the Pipeline System. Grantee acknowledges and agrees that if
the Easement Area is subject to one or more oil and gas leases in existence as of the
Effective Date of this Easement, or if Grantor does not own the minerals under the
Easement Area, Grantor does not have control over and is not responsible for, or liable
for, compliance (or non-compliance) with this Paragraph 11 by any oil and gas lessee or
mineral owner(s).
12. Compensation for Grant of Easement. As complete consideration for the
execution and delivery of this Agreement by Grantor, contemporaneously with the
City of Whbock Easement Agreement Grantor_ Grantee Page 9
execution hereof by Grantor the Grantee agrees to pay to Grantor (i) the sum of Eighty -
Five Dollars ($85.00) per rod for a total of NINETY SIX THOUSAND TWO
HUNDRED SEVENTY-FOUR AND 40/100THS Dollars ($96,234.40) for the grant of
the Easement and the grant of the Temporary Easement, (ii) the sum of Not Applicable ($
N/A) for damage to, or the replacement of, machinery and equipment (including
irrigation systems and equipment) and other personal property specified on Exhibit E,
and (iii) the sum of Not Applicable ($ NIA) for damage to crops. In the event that as a
result of the time of year in which construction of the Pipeline will occur Grantor (or its
lessee) will suffer crop losses for two consecutive years, prior to commencement of
construction (or, if construction has already commenced, but was delayed or extended,
prior to continuation of construction) Grantee shall pay to Grantor an additional sum for
crop losses in the amount specified in item (iv) above. The foregoing consideration
constitutes payment to Grantor and Grantor's successors, assigns, or agricultural lessees
or tenants, if any, for the grant of the Easement and Temporary Easement and for damage
to the specified equipment, machinery and crops resulting from the initial construction
and installation of the Pipeline System,
The market value of any damaged crop shall be calculated using the following
formula: Affected Acres X Yield Per Acre X Unit Price for the affected crop = damages
to be paid, where (i) the amount of the affected acreage will be reasonably determined by
the Federal Farm Service Agency in the county where the premises is located, or if the
Federal Farm Service Agency fails or refuses to make such calculation, as reasonably
determined by Grantor, (ii) yield per acre will be the average of the previous three (3)
years' yields according to the Grantor's (or Grantor's lessee's) records for the affected
parcel, but if the Grantor (or Grantor's lessee) does not have yield records available, the
parties will use Federal Farm Service Agency records or other commonly used yield
information available for the area, and (iii) unit price will be based upon the average of
the last previous March le` and September I't prices for the affected crop as set by the
Chicago Board of Trade, New York Cotton Exchange, Kansas City Board of Trade, or
other similar exchange, as appropriate for the affected crop.
13. Title. (a) Grantee acknowledges that at its sole cost and expense it has
researched the title to the Easement Area and the Temporary Easement Area and, where
it deemed it necessary, obtained abstracts or certificates of title or title insurance to such
property. Grantor represents that to the best of its knowledge set forth on Exhibit F is a
list of (i) all unrecorded agricultural leases and agreements which encumber the subject
property, (ii) all unrecorded mortgages or deeds of trust which encumber the subject
property, and (iii) all unrecorded easements granted by Grantor which encumber the
subject property. Grantor will provide Grantee, at least thirty (30) days prior to the
execution of this Agreement, with all documents identified and to be attached hereto as
Exhibit F. The grant of the Easement herein contained is subject to (A) all items
disclosed on Exhibit F, (B) all items that would be disclosed on an accurate commitment
for title insurance covering the subject property (which Grantor understands that Grantee
has received and reviewed), (C) above ground power lines, (D) public roads as reflected
on the official county (or state) road map(s), (E) all valid and subsisting encumbrances,
easements, agricultural leases, wind energy leases, and rights-of-way of record in the
City of Lubbock Easement Agreement Granter— Grantee— Page 10
county where the subject property is located and that affect the Easement Area and the
Temporary Easement Area as of the Effective Date, and (F) all minerals that have been
severed from the surface and all oil and gas and other mineral leases existing on the
Effective Date. It shall be the obligation of Grantee to procure and have recorded without
cost to Grantor all assurances of title and affidavits which Grantee determines are
necessary and proper to show in Grantor title sufficient to grant this Easement. The
expense of recording this Agreement shall be borne by Grantee. Grantor agrees to
cooperate and aid Grantee, at no expense to Grantor, to obtain any curative documents
needed to the extent such cure would not affect Grantor's title.
(b) If Grantee or Grantor determines that the easement intended to be
conveyed to Grantee and described herein, or any part thereof or undivided interest
therein, should be acquired by judicial procedure, either to procure good title or for any
other reason, then Grantor and Grantee hereby stipulate that (i) an agreement, in the same
form as this Easement Agreement, shall govern the terms of any easement obtained by
judicial procedure, and (ii) the ultimate award to the Grantor for the easement obtained
by Grantee by judicial procedure, shall be the same as the consideration stated in
Paragraph 12, but should the Grantor own a lesser interest in the Easement Area or
Temporary Easement Area intended to be conveyed to Grantee and described herein,
such award shall not exceed that portion of the consideration stated in Paragraph 12
which the value of such lesser interest of Grantee bears to the value of the entire
Easement Area or Temporary Easement Area described herein.
14. Recreation' Firearms; Hunting,; Fishing: Dogs: Artifacts. At no time shall
Grantee or any of its elected officials, officers, agents, servants, employees,
representatives, contractors, independent contractors, subcontractors, or any employee or
invitee of any of them (i) enter upon the Easement Area or Temporary Easement Area for
sightseeing or other recreational purposes, all access being limited to Permitted Uses, (ii)
kill or remove from the Easement Area any plants (other than in connection with
Permitted Uses) or any reptiles, fish, birds or animals or any artifacts (including
arrowheads) or other archeological items of any kind, (iii) bring upon the Easement Area
or the Temporary Easement Area (or the , surrounding land of Grantor) any firearm
(whether rifle, pistol, shotgun), bow of any type, arrow, trap, snare, net, fishing rod, or
any other means whatsoever of taking wild game, fish or fowl, (iv) hunt, fish or trap upon
the Easement Area or the Temporary Easement Area (or the surrounding land of
Grantor), (v) bring dogs upon the Easement Area or the Temporary Easement Area (or
the surrounding land of Grantor), or (vi) subject to the provisions of Paragraph 4(o)
above, enter upon any part of the land of Grantor outside of the Easement Area or the
Temporary Easement Area, or (vii) take any photographs in the Easement Area except in
connection with Permitted Uses and for no other purposes, it being understood and
agreed that all commercial photography and the sale of any photographs taken from the
Easement Area or surrounding lands of Grantor are expressly prohibited. Any person in
violation of the foregoing shall be a trespasser and Grantee covenants and agrees not to
interfere with -the prosecution of any person accused of the foregoing and to prohibit any
such person from thereafter going upon the Easement Area or the Temporary Easement
Area (or the surrounding land of Grantor). Grantee consents and agrees that Grantor
CityofLubbock 8asementAgreement G;auitor_ Grantee_ Page 11
shall have the right at any time to inspect the interior of any vehicle brought upon the
Easement Area or the Temporary Easement Area (or the surrounding land of Grantor).
The Grantee shall include a covenant similar to the above in all contracts with any
contractors having access to the Easement Area or the Temporary Easement Area,
15. Gender: Plural, Words of any gender used in this Agreement shall be held
and construed to include any other gender, and words in the singular number shall be held
to include the plural, and vice versa, unless the context requires otherwise.
16. IndemniV. To the extent permitted by law, Grantee hereby assumes all
liability for, and agrees to indemnify, defend and hold Grantor and Grantor's family,
officers, agents, servants, employees, representatives, contractors, independent
contractors, and subcontractors (each, an "Indemnitee") harmless from all claims,
demands, fines, damages, liabilities, losses, costs, expenses (including without limitation
reasonable attorneys' fees and court costs; collectively, the "Covered Losses'), that may
be suffered or incurred by an Indemnitee, on account of injuries to or death of any
persons, or damage to or destruction of any property, occurring on the Easement Area or
the Temporary Easement Area after the Effective Hate to the extent arising in whole or in
part out of or in connection with any negligence or willful misconduct of Grantee or any
of its elected officials, officers, agents, servants, employees, representatives, contractors,
independent contractors, subcontractors, suppliers or invitees and/or their equipment or
vehicles. When any losses, claims, demands, or causes of action of the types described
above are the result of joint or concurrent negligence or willful misconduct of Grantee
and. Grantor or their respective employees, contractors or agents, it is understood and
agreed that Grantee's indemnity obligations shall be effective and shall cover all such
losses, claims, demands, or causes of action notwithstanding any negligence on the part
of Grantor or Grantor's, employees, contractors (including independent contractors and
subcontractors), agents or invitees, A dispute related to claims for damages accruing
under the terms hereof shall not be cause for the termination of the Easement and/or any
rights granted hereunder, and Grantor shall be solely limited to the remedy of money
damages for such claims,
17. indemnity Regarding Pollution. Grantee agrees to the extent permitted by
law to release, indemnify, defend, and hold each Indemnitee harmless from and against
all Covered Losses of whatsoever nature arising from pollution or contamination
emanating from the Pipeline System (the "Grantee pollution liabilities"); provided,
however, that "Grantee pollution liabilities" shall exclude any pollution liabilities arising
from any condition existing before the effective date of this Agreement. Grantor hereby
releases Grantee from and against all Covered Losses of whatsoever nature arising from
(i) pollution emanating from the property and equipment of Grantor, (ii) any condition
existing before the Effective Date, (iii) pollution or contamination migrating or having
migrated on, under, or to the Easement Area from any other location, and (v) the
possession, occupation or use by Grantor (or any third party under rights granted by
Grantor) of Grantor's property.
City or Lubbock Basement Agreement Grmtor_ Grantae—
18. Insurance. During the construction and installation of the Pipeline
System, Grantee shall maintain, or cause its primary contractor to maintain,
comprehensive generally liability insurance in the amount of $1,000,000 and umbrella
liability insurance in the amount of $2,000,000, covering "all risks" associated with the
Permitted Uses of the Pipeline during construction and installation of the Pipeline
System. Upon request Grantee shall provide a copy of such policies, and alI renewals
and replacements thereof, to Grantor.
19. Easement Only. It is understood and agreed that this Agreement is not a
conveyance of the fee estate for any of the Easement Area, but is only an easement
through, over, under, upon, across and within the Easement Area and the Temporary
Easement Area (for the term thereof).
20. Binding Aaemont- Assignment The provisions of this Agreement shall
be binding upon and inure to the benefit of Grantor and Grantee and their respective
successors, heirs and assigns; provided, however, Grantee shall not assign this Easement
without the prior written consent of Grantor which consent shall not be unreasonably
withheld.
21. Final Agreement, This Easement and the Exhibits attached hereto contain
the final and complete expression of the parties with respect to any matter mentioned
herein. No prior agreement or understanding pertaining to any such matter shall be
effective. This Easement may be modified in writing only, signed by the parties in
interest at the time of the modification. Each Exhibit attached hereto shall be a part of,
and incorporated into, this Agreement.
22. Unenforceable Provisions. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had never been contained herein,
23. Notices. Any notices or demands provided to be given herein by the
parties shall be in writing and sent by facsimile or email (if a facsimile or email address is
provided below) or mailed by certified mail or hand delivered to the other party at the
address set forth below, In addition, telephone notices described in Paragraph 26 below
shall be permitted to the telephone numbers set forth below. Notice of any breach of this
Agreement must be in writing and mailed by certified mail or hand delivered to the other
party at the address set forth below. Each party may rely on the addresses and contact
information set forth below until changed in accordance with this Agreement. If Grantee
determines that Grantor has conveyed the subject property without providing contact
information for the new owner, Grantee may rely on the records of the local appraisal
district. Either party may change its contact information for notices to it by written notice
to the other party. Any notice or demand shall be deemed to have been received the
earlier of (i) three (3) days after the date of mailing, (ii) the date of actual delivery as
shown by the addressee's certification or registry receipt. or (iii) the date of hand
City of Lubbock Easement Agreement Grantor_ Grantee____, Page 13
delivery. Grantee shall provide and maintain a person for emergency contact who is
available at the below telephone (or such different phone number as set forth in notice
from Grantee to Grantor).
Grantee:
The City of Lubbock, Texas
1625 lath Street
Lubbock, Texas 79401
Facsimile: (806)775-2051
Email: MReed@mail,ci.lubbock.tx.us
Contact Person: Marsha Reed
Emergency contact:
Emergency phone number:
Grantor:
Facsimile: (_
Entail:
Contact Person:
Phone number: �)
Cell number: (_ _
24. Access Notice. Telephonic notices are acceptable for notice of
emergencies and for inspections of the Easement Area, however, with regard to notices of
inspection if the contact person cannot be reached by telephone, written notice must be
provided. Except in the event of emergencies, after completion of construction of the
Pipeline the Grantee shall provide at least 24 hour prior telephonic notice to Grantor prior
to accessing the Easement Area. Voice mail messages shall not constitute notice
hereunder.
25. Notice to Future Users. Grantor and Grantee agree and hereby give notice
to any oil, gas, mineral, water, wind or energy lessee or grantee acquiring (after the
Effective Date) any interest overlying or underlying the Easement Area, that Grantee will
be operating the Pipeline System and conducting Permitted Uses as defined herein, and
that no drilling, mining or other operation shall be conducted in the vicinity of the
Easement Area which would unreasonably interfere with the operations or integrity of the
Pipeline System. Further, to the extent Grantor owns the oil, gas and other minerals
under the Easement Area, Grantor hereby waives the right to use the surface of the
Easement Area for the drilling of any oil or gas wells subject, however, to the rights of
any lessee under any oil, gas and other mineral lease in existence as of the Effective Date.
26. Mineral, Water Reservation. Grantor reserves and excepts from this
Easement and retains for Grantor and Grantor's successors and/or assigns, all rights to
explore for, to drill and produce wind, water, oil, gas and other minerals of every kind
City of Lubbock Easement Agreement Grantor Gra;ate,!__ Page 14
and description underlying or situated beneath the Easement Area by any means
whatsoever, including wells or mines directionally drilled from surface locations on
nearby lands so long as no surface operations are performed on the Easement Area and so
long as such operations do not 'interfere with or endanger the operations or integrity of the
Pipeline System,
27. References to Grantee. Where appropriate in this Agreement, references
to Grantee in connection with the performance of Permitted Uses shall include Grantee
and its elected officials, officers, agents, servants, employees, representatives,
contractors, independent contractors, subcontractors, and/or their equipment or vehicles.
28. Limitation on Damages. Neither party shall be liable to the other
party or any of such party's affiliates in any action or claim including without
limitation, any action or claim for indemnity, for indirect, consequential, punitive,
exemplary, special or other similar types of damages, regardless of how caused and
regardless of the underlying theory of recovery, and even if caused by the sole or
concurrent negligence of the responsible party.
29. Force Majeure. When a time period is specified herein for the
performance by either party of its obligations hereunder (except for the payment of
money), such period shall be extended by the period that such party's performance is
prevented by reason of windstorm, hurricane, tomado, flood, earthquake or other acts of
God or by war, riot, insurrection or workers' strike or by the unavailability of materials
(each, an act of "Force Mq'e1 ure'), however, in order for either party to take advantage of
the extension provided above for an act of Force Majeure, such party must give written
notice to the other party within five (5) days of the commencement thereof and must
immediately commence performance of its obligations when the effect of the Force
Majeure event has subsided.
TO HAVE AND TO HOLD said Easement, together with all and singular, the
rights and appurtenances thereto in anywise belonging unto Grantee, its successors and
assigns during the Easement Term, subject to the terms and conditions hereof.
The effective date of this Agreement (the "Effective Date') shall be the date this
Agreement is last signed by Grantor or Grantee.
[ Signatures of the Parties on Next .Page j
EXECUTED this day of , 2009 (the "Effective Date").
City of Lubbock Easernentkgreement Grantor__ Grantee— Page 15
m
GRANTOR:
OS RANCH MANAGEMENT, LLC, a Texas Limited
Liability Company
By:
Naane:
Title:
GRANTEE:
The City of Lubbock
By:
TOM MARTIN, Mayor
[Acknowledgements of the Parties on Next Page]
APPROVED AS TO CONTENT:
Marsha Reed
Chief Operations Officer
APPROVED AS TO FORM:
Terry Grantham
Attorney for the City of Lubbock
Zach Brady
Attorney for City of Lubbock
John Cox
Attorney for Landowner
City of Lubbock Basement Agreement Grantor— Grantee__ Page 1b
E
a
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on 2009, by
Notary Public, State of Texas
Printed Name of Notary
My commission expires:
STATE OF TEXAS
§
§
COUNTY OF LUBBOCK
§
This instrument was acknowledged before me on , 2009, by TOM
MARTIN, Mayor.
Notary Public, State of
I
Printed Name of Notary
My commission expires:
I
Exhibits: A -
Metes and Bounds Description of Easement Area
B -
Pipeline Right -Of -Way Safety Guidelines
C -
Location of Surface Pipeline Equipment
D -
We Construction Detail and Specifications
E -
Equipment Covered by Damage Payment under Paragraph 12(ii)
1: -
Unrecorded Leases and Agreements, Unrecorded Deeds of Trust
and Unrecorded Easements
City of Lubbock Easement Agreenicnt Grantor_ Grantee,_ Page 17
Resolution No. 2009-RO502
Exhibit A
Survey and Metes and Bounds Description of the Easement Area
City of Lubbock Easement Agreement Grimto:— Grantee_ Page 18
126
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S v yod on the qr Mar -Moy, 2009
�
Regislered FS"ofessionall.and Surveyb ,'-
Date: 61-
All Northingsand Eastings shown ore project co-ordinates
and may be converted to Texas State Plane Coordinaies,
North Central Zone, NAD83 bdividing by a surface
adjustment factor of T.00Q2,'U
All distances shown ore surfoce distances,
Beoring 3 shown are grid bearings based on the Texas
Stals Plane Coordinate System, North Centro)Zone,
NAD83 Dotllm.
fhis survey and altinforrnD6on hereon is for the ercluslae use of
CITY DF LUBBOCK
and sholln6f be copled or used except for the purpose for which
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BY: J,M, MARTIN I CHECKED BY -: G. WILSON
-2.don I f ILE NO. 35.760 SHEET P DI
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IS(r8r 796-0020 . PAX 16061 792.1346
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CITY OF LUBBOCK [.
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it is expressly furnished, this droving and ollcoples {partial or IBOBI 70B•0020 - TAX 18061792.1646
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A legal description of even survay dote herewith,
�FNr RLINF fi0'EA
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BPO, g pr T.
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18 N 69'00' MI 1() 7?7.10'
All Northings and Eostings shown orb pro ect coordinates
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North Central Zone, NAD133 by dividing by a surface
SCALE•1 —_g000-_g0Q0J REVISION!
adjustment factor of 1.0002,396
CLIENTr PARKHILL SMITH & C04PE`
All distances shown are surlace distances.
DRAWN BY: 8. BURROW L.
Becrin s shown are grid bearings based on the Texas
State Plone Coordlnote System, North Central Zone,
SURVEYED BY= J,M. MARTIN CHE
Flt,l:r PAR9.d I FILE N0
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and sholl nal be copied or used except for the purpose for whleh 3W 701h ST„ SN1E 202 iLgl=K, IIL 72W
it is expressly furnished, this droving and ollcoples {partial or IBOBI 70B•0020 - TAX 18061792.1646
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E3Qh9151T "A"
Page 3 of 5
PARCEL NO.9
MCCRARV, L.TD.
Field Notes describing the centerline of a Sixty -Foot (60') wide permanent pipeline easement being
located In Section 1, F.M. & A.J. Long Survey, Sections 126,127,128 & 129, Block 5, H. & G.N. 11.11,
Survey and Section 1, J.W. Holmes Survey, Garza County, Texas and said pipeline centerline being
described as follows:
Beginning at a 1/2" Iron rod with cap, set on the East line of said Section 1, F.M. & A.J. Long Survey,
for the beginning of this description, from whence a 3/4" iron pipe found for the Northeast corner of
said Section 1 bears North 1007'10" East, a distance of 1146.89 feet, said point of beginning having a
project coordinate of Y = 7100772,74 and K = 1159369.77;
Thence North 5151'08" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 2.81 feet to a point;
Thence South 85°40'44" West, along the centerilne of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 995.63 feet to a point;
Thence North 52007'16" West, along the centerline of saki Sixty -Foot (60') wide permanent pipeline
easement, a distance of 1881.37 feet to the beginning of a curve to the left;
Thence along the arc of a curve to the left and being the centerline of said 51xty-Foot (60') wide
permanent pipeline easement, an arc distance of 302.80 feet to a point for the end of this curve, said
curve having a radius of 575.00 feet and a delta angle of 3010'22";
Thence North 82017'38" West, along the centerline of said Sixty -Foot (601) wide permanent pipeline
easement, a distance of 98.82 feet to the beginning of a curve to the right;
Thence along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide
permanent pipeline easement, an arc distance of 238.26 feet to a point for the end of this curve, said
curve having a radius of 575.00 feet and a delta angle.of 23044'28";
Thence North 5833'10" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 1565.92 feet to the beginning of a curve to the right;
Thence along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') vwide
permanent pipeline easement, an arc distance of 211,44 feet to a point for the end of this curve, said
curve having a radius of 575.00 feet and a delta angle of 211,04'09";
Thence along the arc of a curve to the left and being the centerline of said Sixty -Foot (60) wide
permanent pipeline easement, an arc distance of 159.67 feet to a point for the end of this curve, said
curve having a radius of 575.00 feet and a delta angle of 15054'37";
NIGH TECHLAND AND GPS SURVEYORS, INC
3330 70th St,, Suits 202 • Lubbock, Texas 79413
(806) 7880020 - Fax (806) 792-1646
EXHIBIT "A'
Page 4of5
Thence North 53°23'39" West, along the centeriine of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 627.83 feet to a point;
Thence North 54°11'02" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 45,66 feet to a'/2" Iran rod with cap set on the West line of said Sectlon 129;
Thence North 54011'02" West, along the centerllne of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 571.28 feet to the beg inning of a curve to the left;
Thence along the arc of a curve to the left and being the centerilne of said Sixty -Foot (60') wide
permanent pipeline easement, an arc distance of 65.90 feet to a point for the end of this curve, said
curve having a radius of 575.00 feet and a delta angle of 61,34'01";
Thence North 60°45'04" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 373.36 feet to the beginning of a curve to the left;
Thence along the arc of a curve to the left and being the centerline of said Sixty -Foot (60') wide
permanent pipeline easement, an arc distance of 180.16 feet to a point for the end of this curve, said
curve having a radius of 575,00 feet and a delta angle of 18°44'57";
Thence North 791130'00" West, along the centeriine of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 426.71 feet to the beginning of a curve to the right;
Thence along the arc of a curve to the right and being the centerline of said Sixty -Foot (60') wide
permanent pipeline easement, an arc distance oP 205.67 feet to a point for the end of this curve, said
curve having a radius of 575.00 feet and a delta angle of 20029'38";
Thence North 59000'22" West, along the centerline of said Sixty -Foot (60') wide permanent pipeline
easement, a distance of 10,727.18 feet to a 1/z" Iron rod with cap set on the East line of Section 38,
Block 5, G.H. & H. R.R. Survey, for the end of this description, whence the Southeast corner of said
Section 38 bears South 1053'36" West, a distance of 775.30 feet.
Containing 1132.64 rods. (25.74 acres)
The above described sixty foot (60') wide permanent pipeline easement is also subject to a sixty foot
(60') wide temporary construction easement being parallel and adjacent to said permanent pipeline
easement, located and shown on the accompanying survey plat and said temporary construction
easement contains 25.74 acres of land. The said temporary constructlon easement shall expire as
noted in the easement agreement,
e
.+
HIGH TECH LAND AND GPS SURVEYORS, INC.
3330 70th St., Suite 202 - Lubbock, Texas 79413
(806) 788-4020 • Fax (806) 792-1646
Page 5 of 5
Notes:
I. A survey plat of even survey date herewith accompanies this legal description.
2. Surveyed on the ground March -May, 2009,
3. Bearings shown are grid bearings based on the Texas State Plane Coordinate System, Texas North
Central Zone, NadB3 Datum.
4. All distance shown are sufface distances.
S. Surface adjustment factor for entire project is 1.0002346
Re ister�ed P afessional Land Surveyor
,2`I'XGII TECH LANAAND GPS SURVEYORS, INC.
3330 76th St„ Suite 202 • Lubbock, moxas 79413
(806) 788-0020 • Fax (806) 792-1646
Resolution No. 2009-R0502
Exhibit B
Pipeline Safety Guidelines
So long as the Easement is in effect, Grantee personnel shall comply with the following
safety and security regulations for the Easement, as well as applicable laws and regulations:
1. Except during construction or maintenance of the Pipeline, driving within the Easement
Area is limited to use of currently established roadways, if any, and any trail roads
constructed by Grantee on non -cultivated lands.
2. Smoking outside vehicles within the Easement Area or lands or premises is prohibited.
3. No firearms, drugs, or alcohol are permitted in the Easement Area and no photographs
may be taken in the Easement Area except in connection with Permitted Uses and for
no other purposes. All commercial photography and the sale of any photographs taken
from the Easement Area or surrounding lands of Grantor are expressly prohibited.
4. Pedestrians and non -motorized traffic have right-of-way over motorized traffic
5. The maximum speed limit within the Easement Area is twenty (20) miles per hour;
however, much slower speeds are necessary in congested areas.
6. Use horn for safety at blind corners and when passing.
7, Use established hand signals or turn indicators
8 Observe all signs including pipeline markers.
9. Come to complete stop on entering or leaving gates within the Easement Area.
10. All persons entering the Easement Area must be fully clothed.
11. No debris or trash shall be discarded on the Easement Area or the Temporary Easement
Area.
City of Whbock Ease me nt Agree me nt Grantor— Grantee_ Page 19
Resolution No. 2009--RO502
Exhibit C
Locations of Surface Pipeline Equipment
City of Lubbock Easement Agreement Grantor_ Grantee_
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Resolution No. 2009-RO502
Exhibit D
Gate Construction Detail and Specifications
City or Lubbock6asementAgreement Grantor_ Grantee_ P:} 21
6"�6-6' Stili
40 POP PPLLATE - vr 4c'�'
3- COLLAR
r snL 40 PIPE
LA' "J3,lEi f PLATE--�
W1.eEO� ALL AROUM
f�
Y 9CL#- 7 SOI 40 PPE C�CAL)
IO PIPE
CONCAFLE J '
NOT, ALL CGISMIECT,ONS ARE
VEWED ALL AROUNO.
GATE DE161L
ssALE: 1/2'=I' -C-
9 -o" Ia -D
r2-SCHI 40 PRE-\ 40 PIPE Li /— Top PtAle
'
FLIT FT'NCM Ary GATES:
't -SEE NOTE A % •',-+- % -
! SEE DEUJL "C'
47-4" LLE..SH WELD
T - SHAPE POST i Ta` DSA. TO GATE FRAME
8• x s'-6. 9GrL r 6'-6" LONG (133 p/fT_y 4aLF (TYP.y i' LCNC ON 6' C/C
T8MGPPAPLATWE/ I WMICHOR PLATE
SEE DETAIL -A-
TNLS SHEET '
CONCRWTE m
TYPICAL. GATE SUPPORT DE—AlL
SCALF�
iFF NATE 7
I. GATES TD BE INSTALLED AT ALL F"CE CRDss[.cs, DNLE5
OTHERWISE DIRECTED BY THE OVATEIL
2 ALL STEEL GATES, POSTS CROSS BRACES. ETG, SHALL BE PAINTED
BLUE-
LUE3_
3-PROVIDE 1' WAC CRAR1 AROUND GATE AND MELD .0 SUPPORT
POST. PROVIDE ONE HEAVY DUTY LOCK PER CATE KEYED PER
CWNZR'S LOOKS.
4. C0frkACTOR SHALL VERIFY EXACT LOCATION OF ALL GATE iMTH
CWNER PMOR TO CDNSiRDC11M
51 ZIMBED WE gtk.L BE 127t GA. BARBED IWAIr-
HINUN STRAND FENCE CR AS qER £IOSTINC FF.+fM WKCHEVER
_
6 GREATER. YWHERIE ETISTING FENCE HAS PANEL FAORIC, INSTALL
39• PANEL FABRIC WTH 3 STRAND BARBED IVR, 47" PANEL
FAE#i'IC YRTH I STRAPID BARBED MIRE WNRATN OR AS PFR EbS-MG,
Ta' qVl
4MOCVER 5 GREATUL
IIOI,E ( •y
6_ CONTRACTOR SHALL INSTALL EXTERIOR FENCE WFPORTS AND
CONNECT TO EXISTING FENCE. PWPI 10 CVMNG DOSING FENCE.
7. OMIETISIOW SHOW ARE FOR PENfES CROsZG AT PFRPEN C(I AR
ANGLE TO PIPE1M WERE FENCE CROSSES PIPELINE AT SKEWED
—
ANGLE DIMENSIONS STALL SE INCREASED ACCCRGINGLY,
't -SEE NOTE A % •',-+- % -
! SEE DEUJL "C'
47-4" LLE..SH WELD
T - SHAPE POST i Ta` DSA. TO GATE FRAME
8• x s'-6. 9GrL r 6'-6" LONG (133 p/fT_y 4aLF (TYP.y i' LCNC ON 6' C/C
T8MGPPAPLATWE/ I WMICHOR PLATE
SEE DETAIL -A-
TNLS SHEET '
CONCRWTE m
TYPICAL. GATE SUPPORT DE—AlL
SCALF�
iFF NATE 7
Exhibit E
Equipment Covered by Damage Payment under Paragraph 12(ii)
City ar Lubbock Easement Agreement Grantor— Grantee__ J r P}3'ge 22
Resolution No. 2009-RO502
Exhibit E
Unrecorded Leases, Unrecorded Agreements, Unrecorded Deeds of Trust, and Unrecorded
Easements
My of Lubbock Ease me nt Agreement Grantor Grantee__