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Home My WebLink AboutResolution - 2023-R0399 - Street Use License Agrmt, TX Commission On Environmental Quality, East Kemper St - 08/22/2023Resolution No. 2023-R0399 Item No. 6.15 August 22, 2023 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Street Use License Agreement for the Right-of-Way located on East Kemper Street by and between the City of Lubbock and Texas Commission on Environmental Quality, and related documents. 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 City Council. Passed by the City Council on Au�ust 22�2023 TRAY PA ', MAYOR ATTES : Courtney Paz, City Secre ry APPROVED AS TO CONTENT: Michael Keenum, P.E., Division Director of Engineering/City Engineer RES.Street Use License Agreement-TCEQ- E. Kemper 7.21.23 APPROVED AS TO FORM: Resolution No. 2023-R0399 STKFET USE LYCENSE THE STATE OF TEXAS COUNTY OF LUI3BOCK KNOW ALL MEN BY THESE PR�SENTS: This License made this 22nd day of August , 2023, being the date of this Agreement between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation, and TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, hereinafter called "LICENSEE." WITNESSETH: 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 a portion of a dedicated street for monitor wells for assessment activities in relation to a TCEQ Superfund site, and being further described as follows: Block 1, Lot 10 of the Garlington Heights Addition to the City of Lubbock, Lubbock County Texas, Less E58'; Block 1, Lot 11 of the Garlington Heights Addition to the City of Lubbock, Lubbock County Texas; and Block 1, Lot 12 of the Garlington ��eights Addition to the City of Lubbock, Lubbock County Texas. Said portion of a dedicated street being further described in the attached Exhibit "A". The term of this License shall be for five (5) years from date hereof, and shall be automatically 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 thirty (30) days notice to LICENSEE. Said notice shall be deemed properly served if deposited in the post office, postage paid, addressed to LICENSEE at 12100 Park 35 Circle, Building D, Austin, Texas 78753, 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. l. Because LICENSEE is a governmental entity and provides a public benefit to the citizens of the City of Lubbock, LICENSEE is granted this license at not cost. The CITY OF LUBBOCK shall notify the LICENSEE of any change in rates ninety (90) days before the start of the ten (10) year term to which such change in rate shall apply, and if such notifcation is not made, then the rate for the preceding ten (10) year term shall apply. 2. The LICENSEE agrees to pay all costs arising out of the exercise of this License herein granted including, but not limited to, the cost of cleanup of any oil, hazardous substance, or other material, the replacement and repair of paving, sidewalks and utilities of any nature damaged as a result of the construction authorized by the 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 or rerouting over and above the expense which would have been incurred except for LICENSEE' S use herein. 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 this License and prepare or begin or complete any part of the construction 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 time 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 and 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 use permitted 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 performance of the work to be done by such contractors. The CITY OF LUBBOCK may f urther 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 performance of all the terms, covenants and conditions contained in said agreement, and a certified copy of a policy of public liability 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. 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. 2 General Liability Insurance. Owner shall maintain general liability insurance with a combined single limit of a minimum of $100,000 per occurrence and such insurance shall include the following: ■ Bodily Injury and Property Damage ■ Broad Form Contractual Liability Owner shall provide a Certificate of Insurance to the City of Lubbock as evidence of the required insurance coverage. The Certificate will provide 30 days notice of cancellation. Such Certificate of Insurance shall name the City of Lubbock as an additional insured and must include wording which states that the policy shall be primary with respect to any insurance carried by City of Lubbock and be endorsed to include a waiver of subrogation in favor of the City of Lubbock. 7. All of the covenants and provisions of this License shall be binding upon and inure to the benefit of the successors, 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 benefit 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 expressly 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 possession of said property covered herein upon termination or cancellation of this license. No interest for real property is conveyed or granted by this License. 9. The CITY OF LUBBOCK reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the CITY OF LUBBOCK shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. 3 AGREED TO AND ACCEPTED this 22nd day of Au�ust , 2023. CITY OF LUBBOCK: TEXAS COMMISSION ON ENVIRONMENTAL QUALITY: BY: �� l��o�-�.��- - TRAY PA , A R � Printed Name: �� t �� S�-� q �� _ _ �• ' � � I. � . • ATT ST: Courtney Paz, City Sec APPROVED AS TO CONTENT: � Michael Keenum, P.E., Division Director of Engineering/City Engineer Y 4 APPROVED AS TO FORM: 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 Tray Payne, Mayor of the City of Lubbock, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed and in the capacity therein stated. GIVE UNDER MY HAND AND , 2023. .�``�rr'�• MARY FALCON �=°4� ��= Notary Public, State of Texas Notary Publi and for the State of Texas ..� ,%;�oF'�`�,�`� Comm. Expires 11-04-2023 y p —'� �r �0�3 �,,,,,�� Notary ID 128901795 M Commission Ex ires: �� THE STATE OF TEXAS COUNTY OF L 0'� BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared �%U_ lQd► ��)pd S --, 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 as an act and deed of said Texas Commission on Environmental Quality GIVE UNDER MY HAND AND SEAL OF OFFICE this y� day of , 2023. �....��..... ,.•�"ra��o KENNETH W JERNBERG �_�:� ��' e�� Notary Public, Stete of Texas %�;�� "= Comm. Expires 04-14-2027 ��':;�o��'�:�`� Notary iD 13430830-0 Notary Public in d for the te of Texas My Commission •xpires: _ `�-�y- �DZ 7_ Street Use Lic- Texas Commission on Environmental Quality 7.21.23 SEAL OF OFFICE this pTc��°'r day � . I � ' ` � I , ' � �J � � I � � � � � � . ,, •� � . � I � �., �I Q� 4� �i � 4� I . � � � � � � � � � I � 0 �'' � F- � � m .� Z c, _ = ►.a��l �� I � � w .�� I �� I�� y O � a �O �� '��=� � * � � � v u� � � �' � J � r� 7 . ,�. � . Y �J �y � ' �9i�r� � Cp _ ,�.,. ,y � _�_ � i �� y 5 '_ ` O � '�`�, . �r o � :. V� � . � � �� L 0 GO � � � � � � �t� a ��:. �. � �o. � - a� � Wk �,a � �•- �� , a. �r . �' a � -. ' , � � 0 �" I � 3 a � ��b Msb N � � � I � � �.x � o 0 „��. . , �� o, � , ' . �� ` 1'��r� �•, � � f4 R ��4 V� � 1 �s, a Z - -�:T ' Y �? � Q � � ;� N N � N r � � � N u � . � � 0 � 00 � O � � � d � . N � N �. + � � y � M1 � � � w 7. � � O' G v� � t ,� c � � � ° � � c � � ■ �, � % r� ✓� r