HomeMy WebLinkAboutResolution - 2006-R0555 - Utility and Access Agreement Between The City of Lubbock, Larry Hay, and Dennis and Diana Brink - 11_21_2006Resolution No. 20106—RO555
November 2,1, 2006
Item No. 5;.9
RESOLUTION
BE IT RESOLVED BYT1-IE CITY COUNCIL OF THE CITY OF LLTBBOCK:
TI-1-AT 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 Utility and Access
Agreement, by and between the City of Lubbock and Larry K. flay, Dennis R. Brink and
wife, Diana I. Brink. Larry K. Hay being the certain, owner of properties being described
as Lots 7 and 23, Westac Addition and Dennis R. Brink and wife, Diana J. Brink being
the certain owners of properties described as Lots 10 and I L, Westac Addition, and all
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 this
.2 1 s t -- - day of November .-- __, 200.
-RM A Y 0 R DAVIDA. ILLE, Mx-ya
AT
Rcbcca Garza, City Secretary()
APPROVED AS TO CONTENT:
Dave Booher, Right -of -Way Agent
APPROVED AS TO FORM:
Z
L. Wade, Natural Resources Attorney
as/ccdocs/Utflity aiid Access Agreement Res.
November 8, 2006
No Text
AGR'EE 2006049W
nLE AND O 7 PGS
ED BUCY R-O-W
Resolutiou No. 2006-RO555
UTILITY AND ACCESS AGREEMENT
This Utility and Access Agreement is made this 7 day o f a 2006, by and
between LARRYK. HAY (hereinafter referred to as "Hay"), DENNIS,R. BRINK and wife, DIANA
.1, BRINK (hereinafter collectively referred to as "Blink), and the City of Lubbock's municipally
owned electric utility, LUBBOCK POWER & LIGHT ('hereinafter referred to as "LP&L").
Recitals
Hay is the owner of LOT SEVEN (7), WESTAC ADDITION to the City of Lubbock,
Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in
Volume 4698, Page 67 of the Real Property Records of Lubbock County, Texas. In the Northwest
comer of said Lot 7, is located a 6 foot by 6 foot switching enclosure easement (the "Switching
Enclosure Easement") for the benefit of LPL as shown on the Plat for said property recorded in
Volume 4698, Page 67 of the Real Property Records of Lubbock County, Texas. Hay is also the
owner of LOT TWENTY-THREE (23), WESTAC ADDITION to the City of Lubbock, Lubbock
County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in Volume 7652,
Page 250 of the Real Property Records of Lubbock County, Texas. Hay desires to make certain
improvements to his property, said improvements to be located on said Lots 7 and 23, Westac
Addition, and both properties are referred to collectively in this Agreement as the "Hay Property"'.
In making the improvements to the Hay Property, it may be necessary to move the: Switching
Enclosure Easement; however, said easement will remain in the Northwest comer of Lot 7 or the
Southwest comer of Lot 23 of the Hay Property,
Brink is the owner of LOT TEN (10), WESTAC ADDITION to the City of Lubbock,
Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in
Volume 4721, Page 129 of the Real Property Records of Lubbock County, Texas. Brink is also the
owner of LOT ELEVEN -A (11 -A), a replat of Lot 11, WESTAC ADDITION to the City of
Lubbock, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof
recorded in Volume 5361, Page 247 of the Real Property Records of Lubbock County, Texas (Lot
10 and Lot I I -A, Westac Addition shall be collectively referred to in this Agreement as the "Brink
Property").
The North 5 feet of Lot 10 of the Brink Property is encumbered by a 5 foot underground
utility easement for the benefit of LP&L, as shown by the Plat of said property recorded in Volume
4721, Page 129 of the Real Property Records of Lubbock County, Texas; and, along the easternmost
Southern boundary line of Lot I I -A of the Brink Property (which is situated North of Lot 10 of the
Brink Property) is a 5 foot underground utility easement for the benefit of Southwestern Public
Service Company, as indicated on the Plat of Lot I I -A recorded in Volume 5361, Page 247 of the
Real Property Records of Lubbock County, Texas. The two five foot underground utility easements
described in this paragraph run parallel and are adjacent to each other, and thus result in a ten -foot
easement across the Brink Property that is hereinafter referred to as the "Existing UUE". Tile
Existing ULTE in relation to the Switching Enclosure Easement is shown by approximation. on
Exhibit "A" attached hereto and made a part hereof for all purposes.
LP&L desires access across and upon a portion of the Brink Property for the purpose of
servicing, repairing and replacing the equipment which is now or hereafter located on the Switching
Enclosure Easement on the Hay Property, Brink agrees to allow LP&L to have access upon and
across a portion of the Brink Property for the purpose of servicing, repairing, and replacing its,
equipment located on the property owned by Hay, subject to the terms and conditions set forth in this
Agreement.
Hay, Brink and LP&L desire that their agreements, concerning LP&L's access across and
upon the Brink Property for the purpose of servicing, repairing and replacing its equipment located
on Hay's property, be fully set forth in this Agreement.
Terms of Agreement
NOW, THEREFORE, for and in consideration of Tenand no/100 Dollars ($ 10.00) and other
good and valuable consideration paid by each of the parties to the other, the receipt and sufficiency
of which is hereby acknowledged and confessed by each party, and in further consideration of the
terms, covenants and agreements contained in this Agreement, Hay, Brink and LP&L do hereby
agree as, follows:
I. LP&L's access across and ppon the Brink Proert . For so long as the Switching
Enclosure Easement for the benefit of LP&L is situated in the Northwest comer of Lot 7 or the
Southwest comer of Lot 23 of the Hay Property, LP&L shall have the non-exclusive use, liberty of
passage in, along, on., over, upon, and across the Brink Property -for the purpose of constructing,
reconstructing, repairing, replacing, and perpetually maintaining any and all types of utilities
maintained by LP&L within or upon the Switching Enclosure Easement; except however, access,
across the Brink Property shall be limited to that portion of the Brink Property encumbered by the
Existing LUE and any other written casements granted to LP&L which now appear of record in the:
Official Public Records, of Lubbock County, Texas, and nothing within this Agreement shall be
construed to limit or prohibit Brink's right to construct improvements on any portion of the Brink,
Property that is not now encumbered by an existing easement reflected in the Official Public Records
of Lubbock County, Texas. Brink agrees, that it shall not construct any permanent improvements,
other than paving and parking, within the Existing LTUE on the Brink Property. Brink further agrees
that the blanket underground utility and transformer pad easements for the benefit of LP&L, as
contained in the notes to the recorded Plats of Lots 10 and 11 -A of the Brink Property, may 'be
utilized by LP&L to service the Switching Enclosure Easement on the Hay Property, provided that
Hay repair any damages to the Brink Property caused by such utilization, as set forth below in
paragraph 2 of this Agreement. The parties acknowledge that there is a fence now located along the
eastern boundary of Lots 10 and I I -A of the Brink Property and Brink shall not be required to
remove or reconstruct any portion of the fence.
2. Maintenance; Cate. If, during the maintenance, repair or replacement of the utilities
located on the Switching Enclosure Easement, it becomes necessary for LP&L to remove the existing
fence, or any portion thereof,, located on the eastern boundary of Lots 10 and I I -A of the Brink
SASTFdcsTmnnmW8rink LP&L ULJE.wpd 2
Property, or if darnage is caused to the Brink Property in any manner whatsoever, Hay agrees, at the
sole Cost and expense of Hay, to replace said fencing and to repair such damages within. 3,0 days after
such repairs, maintenance or replacements are completed by LP&L. If the Brink Property is
damaged by LPL or Hay, Hay shall cause the Brink Property to be repaired to the same condition
as, it existed prior to the maintenance or repairs being made by LPL. If LPL determines that it
is necessary for convenient access to the Switching Enclosure Easement, LP&L may install at Hay's
sole cost and expense, a gate within the fence along the eastern boundary of Lots 10 and I I -A of the
Brink Property, said gate to be constructed within the Existing UUE and in a manner that will match
the existing fence.
1 Non -Exclusiveness of Agreement. This Agreement is non-exclusive, and Brink shall
be entitled to enter into similar agreements, or to grant easements or licenses to other persons or
entities in regard to the Brink Property, as long as said agreements, licenses or easements do not
unreasonably interfere with the rights of LPL and Hay which are stated within this Agreement.
4. Duration. This Agreement shall remain in effect only for so long as the Switching
Enclosure Easement remains at its existing location on the Hay Property (as situated following the
improvements to be made by Hay after the execution of this Agreement), and if such Switching
Enclosure Easement is terminated, abandoned or moved to another location on the Hay Property, this
Agreement shall automatically terminate..
5. Special Indemnity. Hay agrees to indemnify and hold Brink harmless from and
against all loss, liability, and expense of whatsoever nature (including reasonable attorney's fees) to
persons or property caused by or arising out of the rights granted to LP&L and Hay under this
Agreement, or arising out of default by Hay or LPL under the terms and conditions of this
Agreement.
a. Attomgy's Fee. If any party retains an attorney to enforce the terms of this
Agreement, the prevailing party is entitled to recover reasonable attorney's fees.
b. Amendment. This Agreement may be amended only by an instrument in
writing signed by all parties to be bound by it.
C. Binding Effect. This Agreement is binding upon and will inure to the benefit
of the parties hereto and their respective heirs, successors and assigns.
d. Choice of Law. This Agreement is subj ect to, and governed by the laws of the
State of Texas, and venue is proper in Lubbock County, Texas.
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e. Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all signatory parties had signed the same document. All counterparts are
to be construed together and will constitute one and the same instrument, and the signature pages of
each document may be attached to one instrument for convenience or for recording.
f, Integration. This Agreement contains the complete agreement between the
parties and cannot be varied except by the written agreement of the parties. The parties agree that
there are no oral agreements, understandings, representations or warranties which are not expressly
set forth herein.
DIANr A J. BREN]t
W191reffmayl -1010014 12 W
By:
-David Nfiller, Mayor
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This instrument was acknowledged before me on the jjq�- day of 2006,
JAN MCKASNIE
MY COMMISSION EXu.�
PIRES
Aod 2Z 20M
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I Filrs'Twe�nkikBrink LP&L UUE wpd
NotaryOublic, State of Texas
1211000111
19111
This instrunient was acknowledged before me on the 7A day of
200,
32MINMESUM
Jam MCKKIKLE
MY COMMISSION EXPIRES
Apd 22,2008
ublieZ
Notary ublic, State of Texas
This instrument was acknowledged before me on the 16& day of �2006,
NIUMMUMM=
JAN MMIU
My coMM,ISSION EXPIRES
4- Apd 2Z 2008
Notaryblic, State of Texas
This instrument was acknowledged before me! on the 2/--f-day w ht 6,
wj% Vavii A. Miller. Mnor of the City of Lubbock, on behalf of LUBBOCK POWER & LIGHT.
Notary u lie, State of Texas
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x Resolution No. 006--RO555