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HomeMy WebLinkAboutResolution - 4159 - Street Use License Agreement- ENMRT - Underground Communications Cable, 4Th & H - 05_27_1993Resolution No. 4159 May 27, 1993 Item #26 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 Street Use License Agreement with Eastern New Mexico Rural Telephone Cooperative (ENMR), attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as ififUT y-,cppied herein in detail. Passed by the City Council this I 27th da3 of � M 1993. ATTEST: ram/ tty o ns n, City Secretary APPROVED AS TO CONTENT: 9;e, 0k--C--Jf Ed Bucy, Right -of -Ay Agent APPROVED AS TO FORM: Harold Willard, ss i stan ty Attorney HW:je/sDL-ENM.RFS D2-Agenda/Hay 14, 1993 4159 May 27, 1993 Item #26 STREET USE LICENSE THE STATE OF TEXAS § COUNTY OF LUBBOCK § This indenture made this 27th day of May , 1993, being the date of this Agreement between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation, and EASTERN NEW MEXICO RURAL TELEPHONE COOPERATIVE, a New Mexico corpora- tion, hereinafter called "LICENSEE." WITNESSETHs Subject to the terms, conditions and provisions herein, the CITY OF LUBBOCK does hereby grant to the LICENSEE, the right, privilege and license to use portions of dedicated streets for a subsurface fiber optic communications cable, to - wit: BEGINNING at a point in the right-of-way on the Northwest corner of the intersection of North Univer- sity Avenue and Kent Street, City of Lubbock, Lubbock County, Texas; THENCE continuing East on the North side of Kent Street to North Avenue Q; THENCE South along the West side of North Avenue Q, under Loop 289 to the Eastbound access road of Loop 289; THENCE West along the South side of the Eastbound access road of Loop 289 to North Avenue S; THENCE South along the East right-of-way line of North Avenue S to Erskine Street; THENCE East along the South right-of-way line of Erskine Street to North Avenue P; THENCE South along the East right-of-way line of North Avenue P to North Avenue Q (Texas Hwy. Spur 326) ; THENCE East crossing under North Avenue Q, thence South along the East right-of-way line of North Avenue Q, a distance of 178.00 feet, thence East a distance of 180.00 feet to North Avenue N; THENCE Southeast along the Northeast side of North Avenue N to Baylor Street; THENCE along the North side of Baylor Street and proceeding East on Baylor Street to a point on the East side of North Avenue K; THENCE South along the East side of North Avenue K to 1st Street; THENCE East along the North side of 1st Street to Avenue J; THENCE South along the East side of Avenue J to 1st Place; THENCE East along the North side of 1st Place a dis- tance of 508.00 feet to a point being on the West side of the concrete alley; THENCE South along the West side of the concrete alley to a point on the North side of 2nd Place; THENCE West along the North side of 2nd Place to Texas Avenue; THENCE South along the West side of Texas Avenue to 3rd Street; THENCE East along the South side of 3rd Street a dis- tance of 218.00 feet to a point being on the East side of existing alley; THENCE South in alley to 4th Street, crossing under 4th Street to a point on the South side of 4th Street; THENCE South along an existing utility easement crossing under Santa Fe Railroad tracks to an ending point located at a pole on the South side of the railroad tracks to the POINT OF BEGINNING. The term of this grant shall be for five (5) years from date hereof, and shall be, by mutual agreement, extended for successive five (5) year terms not to exceed twenty (20) years in any event, unless either party shall give written notice of termination to the other party before the expiration of the first, second or third five (5) year term, as the case may be, and the CITY OF LUBBOCK retains the right at its election to cancel and revoke this license, with or without cause, upon notice to LICENSEE. Said notice shall be deemed properly served if deposited in the post office, postpaid, addressed to LICENSEE at: ATTN: Robert M. Harris, ENMR, P. 0. Drawer 1947, 1711 N. Prince Street, Clovis, NM 88102-1947, or the last known address of LICENSEE. Upon the expiration or cancellation and revocation of this license by the CITY OF LUBBOCK, or the abandonment of this license by the LICENSEE, the improvements that are permitted under this license shall be removed by the LICENSEE and the property shall be restored to its original condition at no cost or expense to the CITY OF LUBBOCK. In the event LICENSEE fails or refuses to remove such improvements after demand by the CITY OF LUBBOCK, the CITY OF LUBBOCK shall take possession and remove or cause to be removed such improvements, and the expense incurred shall be assessed against LICENSEE, for which LICENSEE shall be liable. 1. LICENSEE shall pay to the CITY OF LUBBOCK as compen- sation for such grant the sum of ONE THOUSAND FIVE HUNDRED FORTY-THREE AND 47/100 DOLLARS ($1,543.47) cash in advance con- temporaneously with the acceptance and execution hereof by LICENSEE for the first five (5) year term of this license, and thereafter such rate of compensation may be changed for each succeeding five (5) year term by the CITY OF LUBBOCK to a rate of compensation which is based on procedures and policies es- tablished by the City Council of the CITY OF LUBBOCK and an appraisal of the fair market value of such land by the Right - of -Way Department of the CITY OF LUBBOCK, as applied to the formula for determining such rate established by the City Council. If such rate is not changed by the CITY OF LUBBOCK, the rate for the preceding five (5) year term shall apply. The CITY OF LUBBOCK shall notify the LICENSEE of any change in STREET USE LICENSE/ENNR ... 2 --- rates in writing before the start of the five (5) year term to which such change in rate shall apply, and if such notification is not made, then the rate for the preceding five (5) year term shall apply. 2. The LICENSEE agrees to pay all claims and costs aris- ing out of the exercise of this license herein granted including, but not limited to, the replacement and repairing of paving, sidewalks and utilities of any nature occasioned by the the construction authorized by this license. 3. In the event the CITY OF LUBBOCK determines that the license herein granted interferes with or causes the rerouting or realignment of any public utility, franchised utility or sanitary or storm sewer line constructed or to be constructed by the CITY OF LUBBOCK or franchised utility, LICENSEE agrees to reimburse the CITY OF LUBBOCK or such utility, as the case may be, for its expense in relocating, rerouting or realigning, in addition to any other sums which this license requires LICENSEE to pay. 4. This license is not transferable by the LICENSEE without first receiving the written consent of the City Manager of the CITY OF LUBBOCK. 5. This license is made subject to the condition that should the LICENSEE exercise any right under the license herein granted and prepare or begin or complete any part of the con- struction as herein contemplated across any or all of the above described property, then and in that event said LICENSEE, its successors and assigns, will at all times defend, indemnify and otherwise hold the CITY OF LUBBOCK, its agents, servants and employees, harmless from any and all claims, demands, actions, causes of action, suits at law or in equity of whatsoever kind or nature which may grow out of or be related to the making of this license or the construction or maintenance or use permit- ted herein. The CITY OF LUBBOCK, at its option, may require an agreement with any contractors hired by LICENSEE to perform the construction, repair or maintenance permitted herein, which agreement will indemnify the CITY OF LUBBOCK from and against all claims, liability, cost and expense growing out of the per- formance of the work to be done by such contractors. The CITY OF LUBBOCK may further require any of said contractors, when engaged in the construction, repair or maintenance permitted herein, to furnish, without expense to the CITY OF LUBBOCK, a reliable surety bond, in an amount and in a form satisfactory to the said CITY OF LUBBOCK, guaranteeing the faithful perfor- mance of all the terms, covenants and conditions contained in said agreement, and a certified copy of a policy of public lia- bility insurance assumed by said contractors in said agreement with the CITY OF LUBBOCK. The CITY OF LUBBOCK agrees to give notice to LICENSEE prior to incurring any costs or expenses or the payment of any such claims or demands in order to give LICENSEE a reasonable opportunity to settle or adjust the same. CITY OF LUBBOCK shall not be liable to LICENSEE for any damages to LICENSEE'S cable licensed hereunder arising out of the con- struction, reconstruction or maintenance of the CITY OF LUBBOCK'S street or any of CITY OF LUBBOCK'S utilities in the area occupied by LICENSEE'S cable by any City department. 6. LICENSEE agrees and is required to furnish a policy of public liability and property damage insurance within limits specified by, and in a form satisfactory to, the City Attorney for the CITY OF LUBBOCK, and which names the CITY OF LUBBOCK as the insured, said policy covering the uses herein granted. STREET USE LICENSE/ENNR .. 3 .. 7. All of the covenants and provisions of this license shall be binding upon and inure to the benefit of the succes- sors, legal representatives, assigns and the duly authorized agents and contractors of the parties hereto to the same extent and effect as the same are binding upon and inure to the bene- fit of the parties hereto, but no assignment hereof by the LICENSEE, its successors or assigns shall be binding upon the CITY OF LUBBOCK without the consent of the CITY OF LUBBOCK in each instance, except as specified in numbered paragraph four (4) 8. LICENSEE, by the acceptance of the uses permitted herein, understands and agrees that no interest, title or rights of possession are intended or implied excerpt those ex- pressly set forth herein, and LICENSEE waives any and all claims in and to the public way it is permitted to use hereby and agrees to give peaceful ssion of said property covered herein upon termination or ancell on of_.t-h s-4cense. 1[ - -AAVID R. LANGSTON, YOR ATTEST: Betty . JoAnson, City Secretary AGREED TO AND ACCEPTED this 27th day of May , 1993. EASTERN NEW MEXICO RURAL TELEPHONE COOPERATIVE BY: ROBERT M. HARRIS EXECUTIVE VICE-PRESIDENT APPROVED AS TO CONTENT: Ed Bucy, Right of -Way Agent APPROVED AS TO FORM: Harold Willard, Assistant City Attorney STREET USE LICENSE/ENMR --- 4 --- THE STATE OF TEXAS § COUNTY OF LUBBOCK § BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared DAVID R. LANGSTON, 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 and in the capacity therein stated as the act and deed of the CITY OF LUBBOCK and as MAYOR. GIVEN LJI;I�ER MY HAND AND SEAL OF OFFICE this day of Dune , 1993. o`r tary Public id f� the State of Texas THE STATE OF NEW MEXICO § COUNTY OF BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared ROBERT M. HARRIS, 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 and in the capacity therein stated as the act and deed of EASTERN NEW MEXICO RURAL TELEPHONE COOPERATIVE. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of . 1993. EW:,ja/SUL-ENMR.DOC D3-Deeda,Eamta/May 14, 1993 Notary Public in and for the State of New Mexico STREET USE LICENSE/ENNR ... 5 --- Resolution No. May 27_ 1993 Item #26 STREET USE LICENSE THE STATE OF TEXAS § COUNTY OF LUBBOCK § This indenture made this 27th day of May , 1993, being the date of this Agreement between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation, and EASTERN NEW MEXICO RURAL TELEPHONE COOPERATIVE, a New Mexico corpora- tion, hereinafter called "LICENSEE." WITNESSETHs subject to the terms, conditions and provisions herein, the CITY OF LUBBOCK does hereby grant to the LICENSEE, the right, privilege and license to use portions of dedicated streets for a subsurface fiber optic communications cable, to - wit: BEGINNING at a point in the right-of-way on the Northwest corner of the intersection of North Univer- sity Avenue and Kent Street, City of Lubbock, Lubbock County, Texas; THENCE continuing East on the North side of Kent street to North Avenue Q; THENCE South along the West side of North Avenue Q, under Loop 289 to the Eastbound access road of Loop 289; THENCE West along the South side of the Eastbound access road of Loop 289 to North Avenue S; THENCE South along the East right-of-way line of North Avenue S to Erskine Street; THENCE East along the South right-of-way line of Erskine Street to North Avenue P; THENCE South along the East right-of-way line of North Avenue P to North Avenue Q (Texas Hwy. Spur 326); THENCE East crossing under North Avenue Q, thence South along the East right-of-way line of North Avenue Q, a distance of 178.00 feet, thence East a distance of 180.00 feet to North Avenue N; THENCE Southeast along the Northeast side of North Avenue N to Baylor Street; THENCE along the North side of Baylor Street and proceeding East on Baylor Street to a point on the East side of North Avenue K; THENCE South along the East side of North Avenue K to 1st Street; THENCE East along the North side of 1st Street to Avenue J; THENCE South along the East side of Avenue J to 1st Place, THENCE East along the North side of 1st Place a dis- tance of 508.00 feet to a point being on the West side of the concrete alley; THENCE South along the West side of the concrete alley to a point on the North side of 2nd Place; THENCE West along the North side of 2nd Place to Texas Avenue; THENCE South along the West side of Texas Avenue to 3rd Street; THENCE East along the South side of 3rd Street a dis- tance of 218.00 feet to a point being on the East side of existing alley; THENCE South in alley to 4th Street, crossing under 4th Street to a point on the South side of 4th Street; THENCE South along an existing utility easement crossing under Santa Fe Railroad tracks to an ending point located at a pole on the South side of the railroad tracks to the POINT OF BEGINNING. The term of this grant shall be for five (5) years from date hereof, and shall be, by mutual agreement, extended for successive five (5) year terms not to exceed twenty (20) years in any event, unless either party shall give written notice of termination to the other party before the expiration of the first, second or third five (5) year term, as the case may be, and the CITY OF LUBBOCK retains the right at its election to cancel and revoke this license, with or without cause, upon notice to LICENSEE. Said notice shall be deemed properly served if deposited in the post office, postpaid, addressed to LICENSEE at: ATTN: Robert M. Harris, ENMR, P. O. Drawer 1947, 1711 N. Prince Street, Clovis, NM 88102-1947, or the last known address of LICENSEE. Upon the expiration or cancellation and revocation of this license by the CITY OF LUBBOCK, or the abandonment of this license by the LICENSEE, the improvements that are permitted under this license shall be removed by the LICENSEE and the property shall be restored to its original condition at no cost or expense to the CITY OF LUBBOCK. In the event LICENSEE fails or refuses to remove such improvements after demand by the CITY OF LUBBOCK, the CITY OF LUBBOCK shall take possession and remove or cause to be removed such improvements, and the expense incurred shall be assessed against LICENSEE, for which LICENSEE shall be liable. 1. LICENSEE shall pay to the CITY OF LUBBOCK as compen- sation for such grant the sum of ONE THOUSAND FIVE HUNDRED FORTY-THREE AND 47/100 DOLLARS ($1,543.47) cash in advance con- temporaneously with the acceptance and execution hereof by LICENSEE for the first five (5) year term of this license, and thereafter such rate of compensation may be changed for each succeeding five (5) year term by the CITY OF LUBBOCK to a rate of compensation which is based on procedures and policies es- tablished by the City Council of the CITY OF LUBBOCK and an appraisal of the fair market value of such land by the Right - of -Way Department of the CITY OF LUBBOCK, as applied to the formula for determining such rate established by the City Council. If such rate is not changed by the CITY OF LUBBOCK, the rate for the preceding five (5) year term shall apply. The CITY OF LUBBOCK shall notify the LICENSEE of any change in STREET USE LICENSE/ENMR --- 2 ... rates in writing before the start of the five (5) year term to which such change in rate shall apply, and if such notification is not made, then the rate for the preceding five (5) year term shall apply. 2. The LICENSEE agrees to pay all claims and costs aris- ing out of the exercise of this license herein granted including, but not limited to, the replacement and repairing of paving, sidewalks and utilities of any nature occasioned by the the construction authorized by this license. 3. In the event the CITY OF LUBBOCK determines that the license herein granted interferes with or causes the rerouting or realignment of any public utility, franchised utility or sanitary or storm sewer line constructed or to be constructed by the CITY OF LUBBOCK or franchised utility, LICENSEE agrees to reimburse the CITY OF LUBBOCK or such utility, as the case may be, for its expense in relocating, rerouting or realigning, in addition to any other sums which this license requires LICENSEE to pay. 4. This license is not transferable by the LICENSEE without first receiving the written consent of the City Manager of the CITY OF LUBBOCK. 5. This license is made subject to the condition that should the LICENSEE exercise any right under the license herein granted and prepare or begin or complete any part of the con- struction as herein contemplated across any or all of the above described property, then and in that event said LICENSEE, its successors and assigns, will at all times defend, indemnify and otherwise hold the CITY OF LUBBOCK, its agents, servants and employees, harmless from any and all claims, demands, actions, causes of action, suits at law or in equity of whatsoever kind or nature which may grow out of or be related to the making of this license or the construction or maintenance or use permit- ted herein. The CITY OF LUBBOCK, at its option, may require an agreement with any contractors hired by LICENSEE to perform the construction, repair or maintenance permitted herein, which agreement will indemnify the CITY OF LUBBOCK from and against all claims, liability, cost and expense growing out of the per- formance of the work to be done by such contractors. The CITY OF LUBBOCK may further require any of said contractors, when engaged in the construction, repair or maintenance permitted herein, to furnish, without expense to the CITY OF LUBBOCK, a reliable surety bond, in an amount and in a form satisfactory to the said CITY OF LUBBOCK, guaranteeing the faithful perfor- mance of all the terms, covenants and conditions contained in said agreement, and a certified copy of a policy of public lia- bility insurance assumed by said contractors in said agreement with the CITY OF LUBBOCK. The CITY OF LUBBOCK agrees to give notice to LICENSEE prior to incurring any costs or expenses or the payment of any such claims or demands in order to give LICENSEE a reasonable opportunity to settle or adjust the same. CITY OF LUBBOCK shall not be liable to LICENSEE for any damages to LICENSEE'S cable licensed hereunder arising out of the con- struction, reconstruction or maintenance of the CITY OF LUBBOCK'S street or any of CITY OF LUBBOCK'S utilities in the area occupied by LICENSEE'S cable by any City department. 6. LICENSEE agrees and is required to furnish a policy of public liability and property damage insurance within limits specified by, and in a form satisfactory to, the City Attorney for the CITY OF LUBBOCK, and which names the CITY OF LUBBOCK as the insured, said policy covering the uses herein granted. STREET USE LICENSE/ENMR --- 3 --- 7. All of the covenants and provisions of this license shall be binding upon and inure to the benefit of the succes- sors, legal representatives, assigns and the duly authorized agents and contractors of the parties hereto to the same extent and effect as the same are binding upon and inure to the bene- fit of the parties hereto, but no assignment hereof by the LICENSEE, its successors or assigns shall be binding upon the CITY OF LUBBOCK without the consent of the CITY OF LUBBOCK in each instance, except as specified in numbered paragraph four (4). 8. LICENSEE, by the acceptance of the uses permitted herein, understands and agrees that no interest, title or rights of possession are intended or implied except those ex- pressly set forth herein, and LICENSEE waives any and all claims in and to the public way it is permitted to use hereby and agrees to give peaceful p n of said property covered herein upon termination or ncel ati6ki of this license. R. ATTEST: SettyuK. 3oh on, City Secretary AGREED TO AND ACCEPTED this 27th day of May , 1993. EASTERN NEW MEXICO RURAL TELEPHONE COOPERATIVE BY , R BERT M. HARRIS EXECUTIVE VICE-PRESIDENT APPROVED AS TO CONTENT: Ed Bucy, Right-of-Waly Agent APPROVED AS TO FORM: K rold Willard, Assi tant City Attorney STREET USE LICENSE/ENMR --- 4 ... THE STATE OF TEXAS COUNTY OF LUBBOCK BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared DAVID R. LANGSTON, 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 and in the capacity therein stated as the act and deed of the CITY OF LUBBOCK and as MAYOR. GIVEN UNDER &Y HAND AND SEAL OF OFFICE this day of1993. CAX T . _- ary Public in and or the State of Texas THE STATE OF NEW MEXICO § COUNTY OF Curry § BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared ROBERT M. HARRIS, 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 and in the capacity therein stated as the act and deed of EASTERN NEW MEXICO RURAL TELEPHONE COOPERATIVE. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 8th day of June , 1993. aj/4 Notary in and for the StaW New Mexico HW:j■/SUL-ENMR.DDC D3-Deeds,Esmts/Hay 14, 1993 STREET USE LICENSE/ENMR --- 5 ---