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HomeMy WebLinkAboutResolution - 2005-R0002 - Agreement Regarding Land Easement - Cap Rock Telephone Cooperative, Inc. - 01_13_2005Resolution No. 2005-R0002 January 13, 2005 Item No. 17 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, an Agreement between the City of Lubbock and Cap Rock Telephone Cooperative, Inc. regarding the granting of an easement over and across lands owned by the City in Garza and Kent Counties, Texas. Said Agreement 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 13th day of ATTEST: Rebe6ca Garza, City Secretary APPROVED AS TO CONTENT: ay Director of community Services APPROVED AS TO FORM: ✓I Richard K. Casner First Assistant City Attorney gs/ccdocs/Res.Agrmt-Cap Rock Telephone Cooperative Jan. 10, 2005 Resolution No. 2005-R0002 January 13, 2005 AGREEMENT Item No. 17 This Agreement is dated this 13th day of January , 2005 (the "Effective Date"), by and between Cap Rock Telephone Cooperative, Inc., a Texas corporation ("Cap Rock") and the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City"). WHEREAS, the City owns real property located in Garza and Kent Counties Texas, adjacent to and in the vicinity of Lake Alan Henry; WHEREAS, Cap Rock is in need of an easement over and across lands owned by the City for the purposes of constructing and maintaining a communication line or lines; WHEREAS, the City is amenable to granting an easement to Cap Rock, upon the following terms and conditions. NOW, THEREFORE, for the consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the City and Cap Rock agree as follows: 1. The City, upon satisfaction and completion of the activities to be performed by Cap Rock under paragraph 2, agrees to execute and deliver to Cap Rock the telephone right-of-way easement, in form and substance identical to that attached hereto as Exhibit "A". 2. Cap Rock shall pay to the City Eight Thousand Seven Hundred Forty and no/100 Dollars ($8,740.00) as surface damages in connection with the construction and operations of the easement. 3. Cap Rock represents and warrants to the City that it has obtained all necessary licenses and permits regarding the construction of the telecommunication line or lines to be constructed in the easement Cap Rock Telephone Easement Agreement Page 1 of 1 I described in Exhibit "A", attached hereto. Further, Cap Rock represents and warrants that it shall comply with all applicable laws, statutes, rules, regulations and ordinances regarding the construction and operation of the communication line or lines, including without limitation, the Clean Water Act (33 U.S.C. 1251, et seq.) and all rules and regulations, promulgated thereunder. 4. CAP ROCK SHALL INDEMNIFY AND HOLD CITY AND CITY' S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES, COSTS, LIABILITIES AND EXPENSES, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES, AS A RESULT OF, ARISING FROM, OR RELATED TO CAP ROCK'S USE OR OCCUPATION OF CITY OWNED LANDS, AND/OR ANY MATTER RELATED TO CAP ROCK'S OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT, INCLUDING ANY AND ALL CLAIMS, DEMANDS, DAMAGES, COSTS, AND EXPENSES CAUSED IN WHOLE OR IN PART, BY THE SOLE OR CONCURRENT NEGLIGENCE, OF ANY KIND, TYPE OR DEGREE, OF CITY, CITY' S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES OR INDEPENDENT CONTRACTORS. Cap Rock Telephone Easement Agreement Page 2 of 11 Cap Rock shall procure and carry, at its sole cost and expense through the construction activities contemplated by this Agreement and right-of-way easement as attached hereto as Exhibit "A", insurance protection as hereinafter specified, in form and substance satisfactory to City, carried with an insurance company authorized to transact business in the State of Texas, covering all aspects and risks of loss of all operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. Cap Rock shall obtain and maintain in full force and effect during the construction activities contemplated by this Agreement and right-of- way easement as attached hereto as Exhibit "A", commercial general liability and automobile liability coverage with insurance carriers admitted to do business in the State of Texas. The insurance companies must carry a Best's Rating of A-VII or better. The policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability: Combined Single Limit: $500,000 Per Occurrence Automobile Liability: Combined Single Limit for any auto: $500,000 Per Occurrence The City shall be listed as additional insured and shall be granted a waiver of subrogation under the policies. Cap Rock will provide a Certificate of Insurance to the City as evidence of coverage. The Certificate will provide 30 days notice of cancellation. A copy of the additional insured Cap Rock Telephone Easement Agreement Page 3 of 11 endorsement and waiver of subrogation attached to the policy will be included in the certificate. Cap Rock shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Cap Rock shall maintain said coverage throughout the construction activities contemplated by this Agreement and right-of-way easement as attached hereto as Exhibit "A" and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that Cap Rock maintains said coverage. Any termination of worker's compensation insurance coverage by Cap Rock or any cancellation or nonrenewal of worker's compensation insurance coverage for Cap Rock shall be a material breach of this Agreement. The City shall be granted a waiver of subrogation under this policy. If Cap Rock fails to maintain the required insurance in full force and effect, all work under the Agreement shall be discontinued immediately. 5. Cap Rock and the City represent and warrant to each other that the person executing this Agreement on their behalf possesses the full power and legal authority to bind the respective entity for which they are executing. 6. The City Council of the City of Lubbock hereby delegates the authority to Mayor Marc McDougal to execute and deliver to Cap Rock, upon satisfaction of the conditions set forth herein, the telephone right-of-way easement, attached hereto as Exhibit "A". Cap Rock Telephone Easement Agreement Page 4 of 11 7. Defaults; Remedies. (a) Cgp Rock's defaults. Cap Rock is in default under this Agreement if any one or more of the following shall occur and remain uncured and unsatisfied for ten (10) days after Cap Rock receives written notice from the City: (i) any of Cap Rock's warranties or representations contained in this Agreement are untrue in any material respect on the Effective Date; or (ii) Cap Rock fails to meet, comply with, or perform in any respect any covenant, agreement, or obligation on Cap Rock's part as set forth herein. (b) City's remedies. If Cap Rock is in default hereunder, City may pursue any remedy available to it by law, equity, contract or otherwise, including an action for specific performance of Cap Rock's obligations hereunder. (c) City's defaults. City is in default under this Agreement if any one or more of the following shall occur and remain uncured and unsatisfied for ten (10) days after City receives a specific written notice from Cap Rock thereof: (i) any of City's warranties or representations contained in this Agreement are untrue in any material respect on the Effective Date; or (ii) City fails to meet, comply with, or perform in any respect any covenant, agreement, or obligation on City's part as set forth herein. (d) Cap Rock's remedies. If City is in default hereunder, Cap Rock may pursue any remedy available to it by law, equity, contract or otherwise, including an action for specific performance of City's obligations 11 hereunder. Cap Rock Telephone Easement Agreement Page 5 of 11 A a Any notice required or permitted to be given herein must be given in writing and must be personally delivered, delivered by telephone facsimile, or mailed by prepaid certified or registered mail to the party to whom such notice or communication is directed at the address of such party as follows: City: Director of Community Services P.O. Box 2000 Lubbock, Texas 79457 Telephone: 806/ 775-2687 Fax: 806/775-2686 Cap Rock: Jimmy Whitefield P.O. Box 300 Spur, Texas 79370 Telephone: 806/271-3336 Fax: 806/271-3601 Any such notice or other communication shall deemed to have been given (whether actually received or not) on the date it' is personally delivered or delivered by telephonic facsimile, or, if mailed, on the third day after it is mailed as aforesaid. Any party may change its address for purposes of this Agreement by giving notice of such change to all other parties pursuant to this Section 8. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES STIPULATE THAT THIS AGREEMENT IS PERFORMABLE, IN PART, IN LUBBOCK COUNTY, TEXAS. THE PARTIES IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS IN THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS CONTEMPLATED HEREBY. Cap Rock Telephone Easement Agreement Page 6 of 11 Executed this 13th day of January , 2005. CAP ROCK TELEPHONE COOPERATIVE, INC. By. 1 . Name: �� n. I.t) �`�'�} e` e ! Title:���udi.� 111�° Cener�� ynah4er ATTEST: By: _ Name: Title: rTTV nV T TTunnrV ATTEST: Rebecca Garza, City Secretary Cap Rock Telephone Easement Agreement Page 7 of 11 APPROVED AS TO CO NT: Randy ruesdell Director of Community Services Tom Mann, Assistant Chief of Police ��� Ed Bucy, Right -of -Way A46nt APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney Cap Rock Telephone Easement Agreement Page 8 of 11 Resolution No. 2005-R0002 January 13, 2005 Item No. 17 Exhibit "A" to Agreement TELEPHONE RIGHT-OF-WAY EASEMENT KNOW ALL MEN BY THESE PRESENTS, the City of Lubbock, a Texas home rule municipal corporation (the "Landowner"), does hereby grant, without warranty, expressed, statutory or implied, including without limitation, any warranties under Section 5.023 of the Texas Property Code, unto Cap Rock Telephone Cooperative, Inc., (hereinafter called the "Cooperative'), of Spur, Texas, and to its successors or assigns, the right to enter upon the lands of the undersigned, for the limited purposes set forth below, situated in Garza and Kent Counties, State of Texas, that certain land sixteen feet six inches (16.5') in width, with the centerline being described by metes and bounds on Exhibit "A", attached herewith, to construct, operate and maintain under the above described lands, a communication line or lines, to cut and trim trees and shrubbery that may interfere with the operation and maintenance of said line or system. Any communication line or lines shall be buried at least forty-two inches (42") below the ground surface. This right-of-way easement grants no right to construct or operate any above -surface or overhead communication line or lines on or over the lands described in Exhibit "A", hereto. This instrument grants an easement only over and across the above - described lands. It is agreed that the Cooperative shall indemnify and hold harmless the Landowner from any and all liability for any damages to the Cooperative's communication lines, cables and other facilities installed on the above -described premises. The undersigned agree that all poles, cable and other facilities, installed on the above described premises at the Cooperative's expense shall remain the property of the Cooperative, removable at the option of the Cooperative. IN WITNESS WHEREOF, the undersigned set their hands and seals this the day of 2005. CITY OF LUBBOCK By: MARC McDOUGAL, MAYOR Cap Rock Telephone Easement Agreement Page 9 of 11 ATTEST: Rebecca Garza, City Secretary Cap Rock Telephone Easement Agreement Page 10 of 1 I APPROVED AS TO CONTENT: Ed Bucy, Right -Of -Way Agent Randy Truesdell Director of Community Services APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney THE STATE OF TEXAS COUNTY OF LUBBOCK This instrument was acknowledged before me on , 2005, by Marc McDougal, Mayor of the City of Lubbock, a Texas municipal home rule corporation. Notary Public, State of _ My commission expires: Richard/CapRockTel Agrmnt.revised 4 Cap Rock Telephone Easement Agreement Page 11 of 11 Resolution No. 2005-R0002 January 13, 2005 Item No. 17 WILSON SURVEYING CO., INC. Registered Professional Land Surveyors Global Po00 Sysfem Surveyors TEXAS 9 NEW MEXICO • ARiZONA • NEVADA • UTAH MWID "A" EASEMENT DESCRIPTION Centerline description of a 16.5 foot telephone easement located in Sections 55,56,57 and 70,. Block 5, K. & G.N. R.R. Co. Survey, Garza and Kent Counties, Texas and being more particularly described by metes and bounds as follows: 9E=NN1N0 at a W Iron. Rod with Cap marked "WSCI" set for the beginning of this centerline description, whence the NorthWest corner of Section 70, Block 5, H. & G.N. R.R. Co. Survey, a found 1-1/4* Iron Pipe, bears North 10481ii" East, 3638.56 feet and North 88024'SS" West, 2303.31 feet; THENCE South 85002'47" East, along the centerline of said - 16.5 foot telephone easement, a distance of 223.98 feet to a set 1W Iron Rod with cap marked "WSCI"; THENCE South 76010'23" East, along the centerilne of said 16.5 foot telephone easement, a distance of 611.86 feet to a set W Iron Rod with cap marked "WSCI THENCE North 720571V East, along the centerline of said 16.5 foot telephone easement, a distance of 536.02 feet to a set W Iron Rod with tap marked "WSCI"; THENCE South 60002'01" East, along the centerline of said 16.5 foot telephone easement, a distance of 460.63 feet to a set W Iron Rod with cap marked "WSCI'; THENCE North 8602242" East, along the centerline of said 16.5 foot telephone easement, a distance of 1233.87 feet to a set W Iron Rod with cap marked *Wsa"; THENCE South 60034'27' East, along the centeriine of said 16.5 foot telephone easement, a distance of 2433,41 feet to a set W Iron Rod with cap marked "WSCI'; THENCE South 28038'55" East, along the centerline of said 16.5 foot telephone easement, a distance of 799.34 feet to a set W Iron Rod with cap marked "WSCI"; THENCI South 3804942" West, along the centerline of said 16.5 foot telephone easement, a distance, of 1306.24 feet to a set W Iron Rod with cap marked "WSCI"; THENCEI South 3905116" East, along the centerline of said 16.5 foot telephone easement, a distance of 2078.27 feet to a set W Iron Rod with cap marked "W5CI"; THENCE South 0036'50' East, along the centerline of said 16.5 foot telephone easement, a distance of 1370.96 feet to a set W Iron Rod with cap marked "WSCI"; (806) 792-4731 9 Fax (806) 792-1646.3330 70th Street, Suite 201 a Lubbock, Texas 79413 WILSON SURVEYING CO., INC. Registered Professional Land Surveyors Global Positionin_o _System Surveyors TEXAS • NEW MEXICO • ARIZONA • NEVADA • UTAH EXHIBIT 1W . THRNCIN South 3104024" East, along the centerline of said 16.5 foot telephone easement, a distance of 2324.97 feet to a set ifs" Iron Rod with cap marked "WSQ"; THENCR South 58e25'S6" West, along the centerline of said 16.5 foot telephone easement, a distance of 1056.85 Meet to a set. W Iron Rod with cap marked."WSa", for the end of this description, whence the.NOMMIst corner of Sectlon 57, Blodc 5; H, R G.N. R.R. Co. Survey, a found 1-1/4" Iron Pipe, bears South 8802237" East, 1457.56 feet and North 103723" East, 1462.74 feet. CONTAIMHO 874.93 rods. Bearings are grid based on Lambert Grid System, NAD27, Texas North Central Zone. Distances are actual surface distances. A plat of even date herewith accompanies this legal description. Caprock.doc Surveyed on the ground June 18-22, 2004 .fr...rff......f.f f.. r.. � L� LEI ��".-. ^'�' ....�� . vr.+rr�ru�.f• it Land Surveyor *:". 4M ��;•'a� 1s.0., *34,983 (806) 792-4731 • Fax (806) 792-1646 * 3330 70th Street, Suite 201 9 Lubbock, Texas 79413 Resolution No. 2005-R0002 TELEPHONE RIGHT-OF-WAY EASEMENT KNOW ALL MEN BY THESE PRESENTS, the City of Lubbock, a Texas home rule municipal corporation (the "Landowner"), does hereby grant, without warranty, expressed, statutory or implied, including without limitation, any warranties under Section 5.023 of the Texas Property Code, unto Cap Rock Telephone Cooperative, Inc., (hereinafter called the "Cooperative'), of Spur, Texas, and to its successors or assigns, the right to enter upon the lands of the undersigned, for the limited purposes set forth below, situated in Garza and Kent Counties, State of Texas, that certain land sixteen feet six inches (16.5') in width, with the centerline being described by metes and bounds on Exhibit "A", attached herewith, to construct, operate and maintain under the above described lands, a communication line or lines, to cut and trim trees and shrubbery that may interfere with the operation and maintenance of said line or system. Any communication line or lines shall be buried at least forty-two (42") inches below the ground surface. This right-of-way easement grants no right to construct or operate any above -surface or overhead communication line or lines on or over the lands described in Exhibit "A", hereto. This instrument grants an easement only under and across the above -described lands. It is agreed that the Cooperative shall indemnify and hold harmless the Landowner from any and all liability for any damages to the Cooperative's communication lines, cables and other facilities installed on the above -described premises. The undersigned agree that all poles, cable and other facilities, installed on the above -described premises at the Cooperative's expense shall remain the property of the Cooperative, removable at the option of the Cooperative. IN WITNESS WHEREOF, the undersigned set their hands and seals this the 31 _ day of 2005. ATTEST: Re cca Garza, City Secretary CITY OF LUBBOCK By: "d MARC"-c(O GAL, MAYOR APPROVED AS TO CONTENT: Ciy Ed Bucy, Right -Of -Way A nt r%,/ Randy f ruesde Director of Community Services APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney THE STATE OF TEXAS COUNTY OF LUBBOCK 0 This instrument was acknowledged before me on Jccn 31 , 2005, by Marc McDougal, Mayor of the City of Lubbock, a Texas municipal home rule corporation. CELIA WEBB Notary Public, State of Texas •,, �, My Commission E 03-01-2006 as/CityAtt/Richazd/TelephoneROWEasement Notary Public, State of '2 e4a s My commission expires: 0.3- - 2.0a6 Resolution No. 2005-R0002 January 13, 2005 Item No. 17 WILSON SURVEYING CO, INC. Registered Professional Land Surveyors Global 825Wonb System Surveyors TEXAS • NEW MEXICO • ARIZONA • NEVADA • UTAH W(H=NT wAw EASEMENT DESCitIP"RON Centwone de rAption of a 16.5 Boat telephone easement located in Sections 55,56,57 and 70,. Biodc 5, H. & G.N. R.R. Co. Survey, Gaeta and Kent Countles, Texas and being more particularly described by metes and bounds as bilows: BNMNV40 at a W Iron. Rod with Cap marked "WSCr set br the beginning of this c a teriine description, whence the NorthvMest corner of Section 70, Block 5, H. & G.N. R.R. Co. Survey, a found 1-1/40 Iran Rpe, bears North 1048'11" East, 3638.56 Beet and North 880241551 West, 2303.31 feet; THENCE South 85002147" East, along fire centerline of said- 16.5 foot telephone easement, is distance of 223,98 feet to a set W I= Rod with cap markedvia,,; THENCE South 76010'23" East, along the centerline of said 16.5 bot telephone easement, a distance of 611.86 feet to a. set W Iron Rod with cap narked "WSCr,- THENCE North 72057W East, along the centerline of said 16.5 foot telephone easement, a distance of 336.02 feet to a set W Iron Rod with Cap marked "WSCI*,-, THENCE South 60002101' East, along the centedim of said 16.5 fart telephone easement, a distance of 460.63 feet to a set W Iron Rod wilt cap marked "WSCI"; THENCE North 86022'42" East:, along the centerine .of sold 16.5 foot telephone easement, a distance of 1233.87 feet to a set W Iron Rat with cap marked "WSW,* THENCE South 60034127' East, along the centerflne of said 16.5 foot telephone easement, a distance of 2433.41 feet to a set W Iron Rod with cap marked "WSC ,- THENCE South 28038'$S" East, along the centerline of said 16J foot telephone easement, a distance of 799.34 feet to a set W Iron Rat with cap marked "WSCI'; THENCE South 38049142' West, along the centerline of said 16.5 foot telephone easement, a distance. of 1306.24 feet to a set W Iron Rod with cap marked "WSCI"; THEM South 390511V Eas. Wong, the centerline of said 16.5 That telephone easamerriy a distance of 2078.27 Beet to a sat W iron Rod with cap marked "W$CI', THENCE South 8036'50' East, along the centerine of said 16.5 foot telephone easement, a distance of 1370.96 feet to a set W Iron Rod with cep marked "WSWe (806) 792-4731 • Fax (806) 792-1646.3330 70th Street, Suite 201 a Lubbock, Texas 79413 . , WILSON SURVEYING CO. INC. Registered Professional Land Surveyors Global Posifonino Sym Surveyors TEXAS * NEW MEXI.CO • ARIZONA a NEVADA * UTAH EXHIBIT "A" TMCE South 3104024" East, atom the centerline of Said 16.5 !root telephone easement, a distance of 2324.97 feat to a set W Iron Rod with cap marked `WSW; THEM South 58a2S S60 West, along the centerilne of said 16.5 foot telephone easement, a dittwce of 1056.85 feet tp a set,'!fi" Iron Rod with cap marked.`WSCi fbr the. end of this descxfpthm, whence the.Northeast corner of Secdon 57, Black 5; H, A G.N. R.R. Co. Survey, a fbund 1-1/4" iron type, bears South 88022'37" Fast, 1457.56 Beat and North 103723" E*st, 1462.74 Beet. convAnaN® 874.93 rods: BearkW are grid based on Lambert Grid System, NAD27, Texas North Central Zone. DID are actual surface distances. A plat of even date herewith accompanies this legal description. Surveyed on the ground 3une 18-22, 2004 Caprock.doc M can a *34,983 (806) 792-4731 • Fax ON) 792-1646.33M 70th Street, Suite 201 • Lubbock, Texas 79413