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HomeMy WebLinkAboutResolution - 102369D - Contract - ATSF Railway Company - Drainage Ditch Along Avenue Q - 10/23/1969 (2)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 between the City of Lubbock and the Atchison, Topeka and Santa Fe Railway Company, covering a drainage ditch along North Avenue Q beginning at Kent Street attached herewith which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. sed by the City Council this 32 rd day of October , TTEST: ED: el r, Jr., urer SECRETARY'S CONTRACT NO. BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND CITY OF LUBBOCK LICENSE Covering drainage ditch on Railway Company's right of way at Lubbock, Lubbock County, Texas. DATED: LICENSE THIS LICENSE, Made this day of between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Kansas corporation (hereinafter called "Licensor"), party of the first part, and CITY OF LUBBOCK, a municipal corporation of the State of Texas, (hereinafter called "Licensee"), party of the second part. WITNESSETH, That the parties hereto for the con- sideration hereinafter expressed covenant and agree as follows: 1. Subject to the terms and conditions herein- after set forth, Licensor licenses Licensee to construct and maintain a drainage ditch, approximately 1600 feet in length and 10 feet wide (hereinafter called the "Ditch") on the right of way of Licensor at Mile Post 670 plus 2295 feet, near the station of Lubbock, Lubbock County, Texas, the exact location of the ditch being more particularly shown by red coloring upon the print hereto attached, DEO Slaton, Texas, No. 8799 dated August 25, 1969 marked "Exhibit A" and made a part hereof. 2. Licensee shall pay Licensor as compensation for this license the sum of One and No/100 Dollars ($1.00), the receipt of which is hereby acknowledged. 3. Licensee shall, at its own cost and subject to the supervision and control of Licensor's chief engineer, locate, construct, and maintain the ditch, whether on or off the right of way of the Licensor, in such a manner that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed, and property of Licensor, or the safe operation of its railroad. If at any time -Licensee shall, in the judgment of Licensor, fail to perform properly its obligations under this paragraph, Licensor may, at its option, itself perform such work as it deems necessary for the safe opera- tion of its railroad, and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have been rendered therefor, the cost so incurred by Licensor, but failure on the part of Licensee to perform the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby. - 2 - 4. Licensee shall at all times indemnify and save harmless Licensor against and pay in full all loss, damage, or expense that Licensor may sustain, incur, or become liable for, resulting in any manner from the con- struction, maintenance, use, state of repair, or presence of the ditch, including any such loss, damage, or expense arising out of (a) loss of or damage to property, (b) injury to.or death of persons, (c) mechanic's or other liens of any character, or (d) taxes or assessments of any kind. 5. If at any time Licensee shall fail or re- fuse to comply with or carry out any of the covenants herein contained, Licensor may at its election forthwith revoke this license. 6. THIS LICENSE is given by Licensor and accepted by Licensee upon the express condition that the same may be terminated at any time by either party upon six (6) months' notice in writing to be served upon the other party,.stating therein the date that such termina- tion shall take place, and that upon the termination of this license in this or any other manner herein provided, - 3 - Licensee, upon demand of Licensor, shall abandon the use of the ditch and restore the right of way of Licensor to the same condition in which it was prior to the placing of the ditch thereon. In case Licensee shall fail to restore Licensor's premises as aforesaid within thirty (30) days after the effective date of termination, Licensor may proceed with such work at the expense of Licensee. No termination hereof shall release Licensee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omis- sions, or events happening prior to the date the right of way of Licensor is restored as above provided. 7. At any time during the term hereof, Licensor shall desire to make any use of the licensed property with which the ditch will in any way interfere, including the relocation of existing or the construction of new tracks, pole lines, wires, conduits, pipelines, etc., in which it shall have an interest, Licensee shall at no expense to Licensor, make such changes in the ditch as in the judgment of the Licensor may be necessary to avoid interference with the proposed use of its property. - /L - 8. In the case of the eviction of Licensee by anyone owning or obtaining title to the premises on which the ditch is located, or the sale or abandonment by Licensor of said premises, Licensor shall not be liable to Licensee for any damage of any nature whatsoever. 9. Any notice, request, instructions, or revo- cation of this license to be given by Licensor to Licensee hereunder shall be deemed to be properly served if the same be delivered to Licensee, or if deposited in the Post Office, postpaid, addressed to Licensee at Lubbock, Texas. 10. This license is made subject to all valid, existing and future contracts, agreements, licenses and easements which may affect said licensed property, cover- ing roads, public and private; pole lines and appurtenances; water lines, or other facilities. 11. All the covenants and provisions of this instrument shall be binding upon and inure to the benefit of the successors, legal representatives, and assigns of the parties to the same extent and effect as the same are binding upon and inure to the benefit of the parties hereto, but no assignment hereof by Licensee, its successors, legal - 5 representatives or assigns, or any subsequent assignees, ,shall be binding upon'Licensor without the written con- sent of Licensor in each instance. IN WITNESS WHEREOF, the parties have executed this agreement in duplicate the day and year first above written. THE ATCHISON, TOPEKA AND ATTEST: SANTA FE RAILWAY COMPANY By Its CITY OF LUBBOCK ATTEST: By Its 0 - 6 - THE STATE OF TEXAS X COUNTY OF POTTER Before me, , a Notary.Public in and for said State and County, on this day personally appeared of The Atchison, Topeka and Santa Fe Railway Company, 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 and in the capacity therein expressed, and as the act and deed of said Railway Company. Given under my hand and seal -of office this day of 19_ Notary Public within and for the County of Potter, State of Texas 7 - THE STATE OF TEXAS X COUNTY OF LUBBOCK BEFORE me, , a Notary Public in and for said State and County, on this day personally appeared , Mayor of the CITY OF LUBBOCK, TEXAS, 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 and in the capacity therein expressed, and as the act and deed of said City of Lubbock, Texas. GIVEN under my hand and seal of office this.the day of , 19_ Notary Public within and for the County of Lubbock, State of Texas