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HomeMy WebLinkAboutResolution - 2457 - Consent Memo - John Boren & Wife - Pipleine Easement, Accoss Lake Alan Henry - 10/23/1986NE4V � RESOLUTION Resolution 42457 October 23, 1986 Agenda Item #25 BE IT RESOLVE® 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 memorandum of consent unto Mr. and Mrs. John Boren in the form attached hereto as "Exhibit B" in the City of Lubbock, Lubbock County, Texas, and made a part hereof for all purposes, and 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 October _ 1986. B. C. MCMINN, MAYOR ATTEST: Ranette Boyd, City fG`'��::�1��� k1 f ►�ly�l►a S'am Wahl, Director of Water Utilities APPROVED AS TO FORM: J Worth Fullingim, MAistant City Attorney r Resolution #2457 EXHIBIT `.'B" Octo be R 23 , 1986 Mr. and Mrs. John Boren Box 511 Justiceburg, Texas 79330 Re: Pipeline easement (license) dated 1986, granted by Walter Boren and Mildred Woo to Mi Plains Pipeline Company. Dear Mr. and Mrs. Boren: This is to confirm that the City of Lubbock has reviewed the above refer- enced instrument and hereby approves your execution and delivery of the same. The City of Lubbock further acknowledges and agrees that in the event the City of Lubbock exects to purchase, or to obtain an easement across, any portion of the real property therein described pursuant to the terms of that certain Memorandum of Agreement dated APR;l. 3, 199(0 you shall deliver title to, or grant and easement across, said real property subject to the terms and pro- visions of the above -referenced pipeline easement (license) in addition to the other matters set forth in said Memorandum. This letter agreement shall be binding upon the City of Lubbock, its successors and assigns, and shall inure to the benefit of you and your heirs, successors and assigns. cc: Ms. Kathryn E. Allen GRAVES, DOUGHTERY, HEARON & MOODY P. 0. Box 98 Austin, Texas ATTEST: Ranette Boyd, City Secretary Very truly yours, THE CITY OF LUBBOCK, TEXAS By: Its: B. C. MCM NN, MAYOR ��PRoJeri Rs �C'o -toRh 40 No Text Y Resolution #2457 LICENSE GRANT AND AGREEMENT STATE OF TEXAS COUNTY OF GARZA For the consideration as hereinafter set out, and in accordance with this License Agreement, the undersigned, (hereinafter called Grantor, whether one or more) does hereby GRANT, BARGAIN, SELL AND CONVEY TO MID PLAINS PIPELINE COMPANY, 1280 One Midland Center, Midland, Texas 79701, it successors and assigns (herein- after called Grantee), a license to construct, maintain, operate, inspect, repair, and renew a pipeline and appurtenant facilities, across, under and upon the lands. of GRANTOR, described as follows, to wit: An estimated distance of 5050 feet in Sections 5 and 4 in Block 6 and Section 137 in Block 5, all in the H & G N RR Survey, Garza County, Texas to be more fully described by a Survey of Co.,he exact line route and a plat to be attached hbreto. SEE ATTACHED EXHIBITS "A" & "B" In connection with the lands and premises, in, over and across which this privilege is given and granted, it is specifically agreed tnd understood that the same will cross the land and premises described above at the approximate location shown on Exhibit "A" attached hereto and that whbn said pipeline has been constructed, GRANTEE will furnish a final and recordable meter and bounds description of the centerline of the pipeline,'showing the actual location of the license. Upon its recording, it shall be a conclusive description of such centerline and of the 20 foot license below mentioned, and this agreement shall be considered as amended in such reppect. In addition to the 20 foot license herein given and granted, it is further specifically agreed and understood that during construction GRANTEE shall have and is hereby given and granted a license of an additional 20 feet (all on one side, or partially on both sides of said .pipeline) so that during the construction period the GRANTEE Will the the right to use, occupy and enjoy a strip of land 40 feet in width. It is further agreed and understood that during construction as such points where said pipeline traverses a public road whereby the GRANTEE is required to bore under said road, that the GRANTEE will have an additional 20 feet in width and 40 feet in length for the purpose of piling dirt as may be required to be removed in the process of boring operations under said public road. In the final location of thb pipe line, the same shall not be located in such proximity to any buildings, structures, wells or other improvements, as would prevent GRANTOR'S use, occupancy and enjoy- ment thereof. THIS LICENSE IS GIVEN AND GRANTED FOR THE CONSIDERATION, AND SHALL BE BUILT AND CONSTRUCTEDHUNDER THE TERMS, CONDITIONS AND COVENANTS AS FOLLOWS: TO WIT: 1. The sum of Two Thousand Nine Hundred Fifty Two and 15/100's Dollars cash in hand paid by the GRANTEE to the GRANTOR, upon the execution of this License Agreement, the recdkpt of which is hereby acknowledged and confessed. 2. This License Grant and Agreement shall expire at such time as the pipe line becomes abandoned, at which time all right, title and interest in the above described license will terminate and revert to the record owners of the surface. Said line will be considered abandoned after twenty-four (24)'.months of non-use by Mid Plains Pipeline Company. 3.,,GRANTEE shall diligently pursue the construction and installation thereof and complete all of its operations in, upon and over siad lands and premises within a reasonable time from the commencement thereof. 4. GRANTEE shall the right to use said lands and premises, as is herein granted, for the herein specified license purposes only, that is to con- struct, maintain, operate, repair, alter and replace the pipeline and appurtenant facilities, and shall not use the lands and premises covered hereby for any other purpose. 5. GRANTEE shall not use any land lying outside of the boundaries of this license for any purpose whatsoever, unless usch use is made pursuant to a written agreement executed by the Grantor, either contemporaneously herein or subsequent hereto. ~ 6. The GRANTEE shall have all of the rights and benefits necessary or convenient for the full enjoyment or use of the rights herein granted, including, but without limiting the same to the free right of ingress and egress over and across said right-of-way and easement, the right to use all roads over and across said lands, and the right from time to time to cut all trees and undergrowth and remove other obstructions that may injure, endanger or interfere with the use of said pipeline. The GRANTEE shall have the right to assign this grant in whole or in part. 7. GRANTEE agrees to bury the pipeline to a depth of at least 42 inches from the surface to the top of the pipe on cultivated land and 36 inches from the surface to the top of the pipe on pasture lands. 8. GRANTOR has the right to fully use and enjoy said premises except as may be necessary for the purposes herein granted to the GRANTEE, and with- out limitation because of such enumeration, the GRANTOR, shall have the right to cultivate all of said lands and thereon, and in general, to use all of the same for any other purpose that is not inconsistent with GRANTEE'S enjoyment of the grant herein made. 9. During any construction, repair, alteration, replacement and/or removal of said pipeline or entry onto scid lands and premises for any other purpose permitted herein, GRANTEE herein agrees that it shall pickup and remove, all paper, cardboard, cartons, cans, bottles and any other rubbish or debris used in any of such operations and to dispose of.the same at a location that is not on any property owned by the GRANTOR. 10. GRANTEE agrees to pay GRANTOR, in addition to the consideration given for this easement, all damages of whatsoever nature to any and all crops growing_on any of the GRANTOR'S lands and.premises adjacent to the easement herein granted, as well as any damages caused to any other property belonging to the GRANTOR, upon adjacent land to such easement, and GRANTEE shall make full compensation for all such damages, if any. So that there will be no misunderstanding between the parties, it is agreed that should any of GRANTEE'S operations hereunder cause any damages to growing crop on any of the GRANTOR'S lands and premises which are adjacent to such right-of-way as well as building, structures, wells or other properties, GRANTEE shall pay for all of such damage, and GRANTEE -shall not be entitled to any defense of an "act of God" or other similar defense.. GRANTEE shall only be liable for such damages as are pro-Viddd for in this this paragraph if said damages would not have occurred in the absence of GRANTEE's operations. 11. Should any rock or caliche be disturbed in connection with any op- eration hereunder, GRANTEE shall have the option to either replace such rock or caliche at either substantially the same levet or below which it was found, or removing the same from GRANTOR'S lands and premises. No rock or caliche may be replaced in any ditch or other place at a substant- ially higher level than it was found incident to any operation hereunder. 12. GRANTEE agrees to double ditch where necessary. By the use of the term "double ditch", it is meant that the GRANTEE will place the top soil from the excavation in such a place that it will not be co -mingled with the soil from the balance of said excavation, and in replacing the same in the excavated ditch, the top soil will be .replaced in its original position. 13. GRANTEE agrees to restore the surface of said lands and premises (including any terraces located thereon) to as nearly the same condition as it was in prior to its conducting any operation hereunder, and to cause all depressions caused by its operations to be filled so that the surface of said lands and premises will be substantially in the condition as it was in prior to the conducting of .any such operations by GRANTEE. 14.' GRANTEE agrees to pay GRANTOR for any damages that might be caused by any leakage from such pipeline, irrespective of any care or diligence that might be exercised by GRANTEE to prevent same, and to make full compensat- ion for any such damages even though it not be at fault in failing to pre- vent any such leak. 15. Should any of GRANTEE'S facilities be located above the ground, GRANTEE agrees to keep the area surrounding such facilities reasonably free of any and all weeds and other growth, GRANTEE shall have the right to reasonably chemically control such weeds and other growth so long as the area of such control does not extend beyond a reasonable distance from any such facility. w. 16. All aboveground facilities shall be limited to such facilities as are reasonably and necessarily required'consistent with good engineering practices. All above -ground facilities shall be installed and kept located on GRANTOR'S property lines, that is, on the permiter of the lands and premises of the GRANTOR upon and over which this easement is granted. No above ground facility shall be installed that interferes with the present use and operat- ion of any mechanical irrigation system or equipment used in connection with the agricultural use of said lands and premises. No above -ground facility shall be permitted under this easement that encroaches upon GRANTOR'S land more than six (6) feet from the permiter thereof, without written permission first had and obtained. 17. GRANTEE agrees to give GRANTOR, at least sixty (60) days in advance, a written schedule of construction dates, showing, the approximate date on which the construction of such line is to begin, Thereafter, on the date that any other operation to be conducted which might disturb the surface of the soil or any crops growing thereon, notice shall be sent to GRANTOR at least thirty (130) days prior to the commencement of any such operation unless an emergency condition arises whereby the giving of such a thirty (30) day notice is not practicali In such an emergency event, GRANTEE agrees to make all reasonable efforts to contact GRANTOR with reference to such emergency situation, so that GRANTOR will be fully apprised thereof. Any and all operations conducted on said lands and premises by the GRANTEE shall be completed within a reasonable time from the date on which it is commended. 18. GRANTEE acknowledges that said lands and premises are used for agri= cultural purposes by GRANTER, and in all operations hereunder, GRANTEE agrees that it will reppect such use of said lands and premises and not unreasonably interfere with GRANTOR' use of said lands and premises. 19. GRANTEE covenants and agrees that after the pipeline has been installed under this agreement, that there sbhll be no alteration or replacement there- of other than such alterations and replacements as may be required in order to maintain such pipeline in arpcordance with reasonable engineering practices incident to the operation of such pipeline.. it is specifically agreed thbt any replacement of such pipeline shall be such replacement as might be re- quired in order to maintain the existing line and that no increase in thb size of such line shall be permitted under this agreement. Any repairs, renewals or replacements of or to the pipeline and appurtenances thereto as is herein permitted, shall entitle the GRANTOR to be compensated by thb GRANTEE consistent with the damages caused incident thereto, and consistent with the Paragraph one (1) hereof. 20. Should it become necessary to cut any fence located on said lands and premises, GRANTEE agrees to repair said fence or install a gate at the place where such fence it cut, which gate srhall be of equal quality or better that the other gates located on the property of the Grantor adjacent to the lands and premises covered hereby. Each gate so constructed by the GRANTEE shall be Iept'securely locked at all times. GRANTEE agrees to furnish keys to such locks to the GRANTOR. No one other than the GRANTOR and the GRANTEE shall be permitted to have such Keys. 21. If at any time during the use of this easement, GRANTEE should require that any of the gates remain open, GRANTEE shall post guards at such gates sites at all time when the gates are not locked so as to prevent the move- ment of livestock that is located on the lands of the GRANTOR through such open gates. 22. If, during any operation under this agreement, GRANTEE causes any trees, brush or any other matter to be cleared from such right-of-way, all of such matter shall be removed from the right-of-way, and disposed of by the GRANTEE at a location that is not on any proeprty owned by the GRANTOR, unless agreed to by the GRANTOR to the contrary. 23. Neither the GRANTEE, or any of its employees, licensees, invitees, subcontractors nor any other person have any relationship whatsoever, with the GRANTEE shall have any firearms or dogs on such easement right-of-way, nor any of the adjacent land of the GRANTOR at any time and none of them shall, at any time, hunt or engage in any type of recreational activity on such right-of-way or on any of the lands owned by the GRANTOR. 4k 24. Any and all ad valorem taxes assessed or to be assessed against.any of the GRANTEE'S property located on such license shall be promptly paid by the GRANTEE prior to the time that the same would be become delinquent and GRANTEE shall hold GRANTOR hamrless from any attempt by any taxing agency to charge GRANTOR or GRANTOR'S property for the payment of any such tax. 25. All of the terms, conditions and provisions hereof are contractural in nature, and it shall never be 'necessary for GRANTOR to allege or to prove any cause of action in toft based upon any breach of any of the pro- visions hereof. 26. All of the provisions of this license are specifically made performable in the County where said land is situated. Any and all sums of money that might become due and owing to GRANTOR by GRANTEE hereunder are hereby spec- ifically made payable in said County. 27. No failure to comply with any covenant on the part of the GRANTEE shall be construed as a breach of this Agreement unless and until written notice has first been given to GRANTEE that GRANTOR believes GRANTEE has failed to comply with such covenant, setting out the grounds therefore, and GRANTEE has then failed to correct such failure within thirty (30) days after final receipt of such notice or has failed to correct such failure within thirty (30) days after final determination, by agreement or by lit- igation in a.Court of competent jurisdiction, that a breach, iin fact, exists. 28. Itis agreed that this grant covers all the agreements between the parties and that no representation or statements, verbal or written, have been made modifying, adding to, or changing the terms of this Agreement. 29. It is further agreed and understood that this license is subject to all valid oil, gas and mineral leases, indebtednesses, if any, and easements now in existence up said land. 30. If the land over which this license crosses is row or ditch irrigated, GRANTEE shall water pack the pipeline ditch and level it after construction so that irrigation water will run as before the installation of said pipeline using for said water packing, water made available by the GRANTOR is pre- vented from irrigating any portion of his farm by reason ofconstruction maintenance or repair of the pipeline, then GRANTEE shall pay GRANTOR the difference in the value of the lost crop production where GRANTOR was not able to irrigate. 31. The GRANTEE will take all precautions, including the cleaning of equip- ment, if necessary, before entering said premises, in order to prevent the introduction or spread of Johnson grass or other noxious weeds, upon the GRANTOR"S premises. 32. The breach of any of the provisions hereof shall not terminate this license and shall only give the respective parties a cause of action for said breach. Under none of the terms and provisions of this instrument, as hereinbefore set out, shall the GRANTEE be entitled to replace the pipe- line herein provided for with a larger pipeline. 33. GRANTEE, it successors and assigns., covenants and grants to GRANTOR one (1) free tap for the use of gas for domestic purposes. GRANTOR will be responsible for all installation to the pipeline tap,, and will hold GRANTEE harmless for quality of gas and release GRANTEE of all causes of action relating to the pipeline tap and furnishing of gas to GRANTOR, his heirs and assigns. 34. The property descirbed herein is subject to a Memorandum of Agreement dated between the City of Lubbock (the "City") and , GRANTORS and others, whereby the City has acquired the right to purchase all or a portion of said property for the construction of a dam and reservoir, and to obtain certain easements necessary for such construction, all as more particularly described in said Agreement. This easement (license) is granted and accepted subject to all of the terms and provisions of said Agreement. GRANTEE acknowledged and agrees that upon request of the City, the easement (license) rights herein granted shall immediately cease and terminate;' whereupon GRANTEE shall have no further rights hereunder with re�.pect to the herein -described real property. Such termination shall be conclusively presumed and evidenced by .the filing of record or an affidavit executed by GRANTOR or the City certifying that the City has requested the easement (License) be terminated. In such event, GRANTEE further agrees to remove all lines, pipes and other equipment from and to restore the surface of the here -described real property in such manner and'.to such extent as may be required by the City. GRANTEE hereby waives and relinquishes any and all claims it may have against GRANTORS and/or the City arising from or related to the termination of the easement (license) right herein granted in the manner herein deser.ibed, and shall indemnify and hold GRANTORS harm- less from all costs and claims arising from GRANTEE'S failure to comply with the provisions hereof. The GRANTEE, by acceptance of this grant and license, and by the payment of the consideration as set out in Paragraph One (1), agrees and accpets all of the terms and provisions hereof, and this instrument when executed by the GRANTOR, and accepted by the GRANTEE, shbll inure to and be binding on both the GRANTOR and the GRANTEE, their and its successors, heirs, executors and assigns. GRANTOR covenants with GRANTEE that GRANTOR is the owner of the land and has the right, title and capacity to grant the rights and license herein granted. To have and to hold said license unto GRANTEE, it successors and assigns, so long as the rights and license herein granted, or any one of them shall be used by GRANTEE for the purposes herein granted; and the GRANTOR does hereby bind GRANTOR, grantor's heirs, executors and administrators, to Warrant and Forever Defend, all and singular, said premises unto the GRANTEE, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. IN TESTIMONY WHEREOF, THE GRANTOR herein has executed this conveyance this day of 1986. Walter Boren Mildred Woo SS# 449-03-3064+ SS# 4.62-84-0869 THE STATE OF TEXAS COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared Walter Boren, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,1986. My Commission Expires TH6 STATE OF TEXAS COUNTY OF Printed Name of Notary Public BEFORE ME, the undersigned authority, on this day'personally appeared Mildred Wood, knownto,;me to be the person whose name is subscribed to the fore- going instrument, and acknowledged to me that she executed thb same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 1986. My Commission Expires Printed Name of Notary Public HIGH Y DEPARTMENT -LOCATION- I.1 A 1 ! -y • /r ,• _ i Jib_' ■� ( ! •• I •ii �� `'�•1"�. ' I E RM JL • J ii • -------- rJr f . -A • I v'' SCALE IN MI LES t ! ►L �;• -J I jl _. 1 aw r � 777 r � ` ' �`OTyy �'.% � , t ' _ .•' - 51225 a/i^� Sia :� �_ IFi�•c _���� `� +, 1 ,: lag 7 _ '•i. u, r)70 • � i •+�9./cc ,:fes, �j J •• � ~"x"•�� 1300 `• � ♦ �; I �P �- •,,_�� rL �- � `S � `\1' � �a �� '\� Vin- _ j�,; I • f VOW1 /3 S•- -� / : �� S I \ �� �_ •ems: �,, -�� iY�J� GravW \4 X I V •1 J •• • • �. f J~q a' -4a-♦ -- Cr .. 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