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HomeMy WebLinkAboutResolution - 2016-R0388 - Runway Protection Zone Easement Agreement - Tx A&M University Systems - 10/27/2016Resolution No. 2016-RO388 Item No. 6.25 October 27, 2016 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 Runway Protection Zone Easement Agreement by and between the City of Lubbock and the Texas A&M University System, 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 . October 27 2, 016 - �j DANIEL M. POPE, MAYOR ATTEST: Reb cca Garza, City Secre ry APPROVED AS TO CONTENT: Kelly Campbell, Executive Director of Aviation APPROV ° .AS TO FORM: itchell atterwhite. First Assistant City Attorney RES. Agrmt-Runway Protection Zone Easement & COL 9.28.16 File and Return to (r,�CaEt 131oa Resolution No. 2016-RO388 Dave Booher R.O.W. City of Lubbock RUNWAY PROTECTION ZONE EASEMENT AGREEMENT 1. Grant of Easement. The BOARD OF REGENTS OF THE TEXAS A&M UNIVERSITY SYSTEM, as grantor ("TAMUS"), on behalf of the State of Texas, acting by and through its duly authorized officer, under authority of System Policy 41.01, and by virtue of authority granted to the Board by TEX. EDUC. CODE ANN. §85.26(c), in consideration of the agreement of THE CITY OF LUBBOCK, a governmental entity ("LUBBOCK") to lease a water well on adjacent property to TAMUS for the use and benefit of Texas A&M AgriLife Research ("TALR") as further described in that one certain Lease Agreement between LUBBOCK and TAMUS of even date (the "Water Well Lease Agreement"), GRANTS, BARGAINS, SELLS and CONVEYS to LUBBOCK, owner and operator of the Lubbock Preston Smith International Airport (the "Airport"), its permitted successors and assigns, for the use and benefit of the public, a nonexclusive continuing runway protection zone ("RPZ") easement (the "Easement"), a right of flight for the passage of aircraft in the air space above the surface of the land over which the Easement is obtained, together with the right to cause such noise as may be inherent in the operation of aircraft, now known or hereafter used for navigation of or flight in the air, using the air space for landing at, taking off from or operating on the Airport. The Easement is located in the air space above the surface of certain property of TAMUS located in the County of Lubbock and further identified as portions of Tract I and Tract II described in Exhibit "A" (the "Property"), attached hereto and made a part of this Easement Agreement (this "Agreement"). It is deemed necessary that the Property, more particularly described below as the RPZ Approach Area, be and remain free and clear of any structures, trees, or other objects which are, or could constitute or otherwise contribute to, an obstruction or hazard to the flight of aircraft in landing and taking off from the Airport. 2. Purpose and Location of Easement. The Easement is granted solely for the purpose of an RPZ for the Airport. TAMUS, for itself, its successors and assigns, covenants and agrees with LUBBOCK, that for the benefit of the public in the use of the Airport, it will not erect, or permit the construction, erection or growth of any structures, trees, irrigation channels, crops that attract bird wildlife, or other objects within the Northern RPZ approach area of Runway 17R in portions of Tract I and Tract II (the "RPZ Approach Area") being an inclined plane with a slope of 50:1 (one foot of elevation for each 50 feet of horizontal distance) located directly above portions of Tract I and Tract II, with the bottom of the inclined plane having an elevation of 3,309.80 feet (mean sea level) at its edge nearest Runway 17R and an elevation of 3,331.80 feet (mean sea level) at its edge farthest from Runway 17R. The surface area affected by the Easement and the location of the RPZ Approach Area is described in Exhibit "A" and depicted on Exhibit "B", attached hereto and made a part of this Agreement. For the purposes of this Agreement, LUBBOCK agrees, at its sole cost and expense, to retain the services of a wildlife damage management biologist biennially to assist in the designation, to be made in consultation with TAMUS within three months of the date hereof and thereafter on or before the bieannial anniversary date of this Agreement, of approved crops from which TAMUS may elect to plant, and prohibited crops which TAMUS may not elect to plant in the RPZ Approach Area. 3. Right of Access. TAMUS, for itself, its successor and assigns, grants and conveys to LUBBOCK, its agents, servants and employees, a continuing right and easement to take any action necessary, upon no less than 10 days' advance notice to TAMUS, to prevent the Prepared OIOce of General Counsel c'.�� r� 1 T11 R I ubMxk Im'I 1 rn E mt. 2015060021 ,� steai Real Estate Office r I"eeal bile No. 2015-0039700 OFFICIAL DOCUMENT ' ecru- 9/2nn6 .N m to w i T Em D F m T i construction, erection or growth of any structures, trees, irrigation channels, crops that attract bird wildlife, or other objects into the air space above the RPZ Approach Area and to remove from such air space, or make and light as obstructions to air navigation any and all structures, trees, or other objects which may at any time project or extend above the bottom of the inclined plane, together with the right of ingress, egress and passage over the land of TAMUS within the RPZ Approach Area for such purposes. 4. Duties. Except as provided in Paragraph (3) above, if LUBBOCK damages or destroys any roads, bridges, culverts, buildings, other structures or equipment on the Property, other than its own property, LUBBOCK must, within a reasonable period of time, repair or replace such improvements to the extent it will, as nearly as practicable, be in like condition as before such damage or destruction. At the option of TAMUS, in lieu of repairing or replacing the improvements, money damages will be paid. 5. No Fee Interest Granted. This is a grant of a nonexclusive RPZ easement only, and does not grant any fee interest to the surface or any interest in the minerals, on or under the Property. The conveyance is made subject to any and all outstanding restrictions, reservations, covenants, conditions, easements and other encumbrances filed of record or apparent on the ground. TAMUS expressly retains all rights to grant, control and renew all easements, of every kind and character, on, over or under the Property. 6. Duration of Easement. In accordance with TEX. EDUC. CODE ANN. §85.26(c), this grant is for a term of 10 years from the Effective Date; provided that in the event the Water Well Lease Agreement terminates early for any reason, then this Agreement shall terminate simultaneously. LUBBOCK expressly understands that its continued possession of the Property under this Agreement after termination of this Agreement, without first obtaining a renewal from the Board of Regents of The Texas A&M University System, is a violation of state law that subjects LUBBOCK to a penalty of $100 for each day of such violation. LUBBOCK agrees to pay TAMUS such penalty within 10 business days after receipt of notice from TAMUS sent in compliance with Paragraph 19 of this Agreement. 7. Nonexclusive Easement. The Easement is nonexclusive. TAMUS reserves for TAMUS and TAMUS' successors and assigns the right to full use and enjoyment of the Property and the right to convey the Property or other rights or easements to others, so long as such use or conveyance does not unduly interfere with LUBBOCK's use. 8. Hold Harmless. LUBBOCK and TAMUS, to the extent allowed by the Constitution and laws of the State of Texas, each agree to hold the other harmless from any and all claims, demands, liabilities, and causes of action for personal injury or death and/or damage to or destruction of property or improvements caused by, arising out of, or resulting from the exercise of each parties' rights and obligations under this Agreement. 9. Use of Property-, Compliance. During the term of this Agreement, LUBBOCK shall comply with and obtain any permits or licenses which may be required by federal, state or local statute in connection with the use of the Property, including the Antiquities Code of Texas, Chapter 191 of the Texas Natural Resources Code. LUBBOCK agrees that title to all i d+ SVSEG11 Rv3i Instal! Of' -ice' Prepared OtttceofGeneral Counsel G 'F'ICIA` nQ'i]i✓ILiVT TAI I.ubbaLk lnt'I Airport l•snu. 2015060023 L _ I eual I He No 2015 0039700 GMJ 8/20116 archaeological objects and artifacts, if any, discovered in or on the Property shall remain with TAMUS. 10. Default and Termination. It is agreed upon default by LUBBOCK of any of these covenants, conditions, and agreements, TAMUS has the right, and such right is expressly reserved, to declare the Easement forfeited, without prejudice to any claim TAMUS may have against LUBBOCK; provided, however, TAMUS will give LUBBOCK written notice of its intention to terminate the Easement and the reasons for termination, and LUBBOCK will have 30 calendar days after receipt of notice to rectify the default or violation. Upon timely correction, the Easement and this Agreement will remain in full force and effect. Termination or abandonment of the Easement for any cause will automatically revert to TAMUS all rights granted to LUBBOCK in the Agreement without the necessity of any further action or suit on the part of TAMUS. Upon termination or abandonment, LUBBOCK agrees to file a Release of Easement in the Deed Records of the county in which the Property is located. Abandonment will be deemed to have occurred when the Easement is not used for the purposes granted for a continuous period of one calendar year. In the event of early termination of this Runway Protection Zone Easement for any reason, the Water Well Lease Agreement shall also terminate simultaneously. 11. Waiver. No waiver by TAMUS or LUBBOCK of any default or breach of any term, condition, or covenant of this Agreement will be a waiver of any other breach of any other term, condition, or covenant. 12. Privileges and Immunities. LUBBOCK acknowledges TAMUS is an agency of the State of Texas and nothing in this Agreement will be construed as a waiver or relinquishment by TAMUS of its right to claim exemptions, privileges, and immunities as may be provided by law. 13. Governing Law and Venue. The validity of this Agreement and all matters pertaining to this Agreement, including but not limited to, matters of performance, non-performance, breach, remedies, procedures, rights, duties, and interpretation or construction, shall be governed and determined by the Constitution and the laws of the State of Texas. Pursuant to Section 85.18, Texas Education Code, venue for any suit filed against TAMUS shall be in the county in which the primary office of the chief executive officer of TAMUS is located. At execution of this Lease, such county is Brazos County. 14. Grammatical Interpretation. When the singular number is used, it also includes the plural, and the masculine gender includes the feminine and neuter gender. 15. Headings. Headings are for reference and will not be construed to limit or alter the meaning of the provisions of this Agreement. 16. Parties Bound. This Agreement is binding upon and inures to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors in interest or office, and assigns (but this Section does not constitute permission for an assignment). - ��(�Y J��:; ietli Real Estate OfficeI 7 Prcpared 011icc oC(icncral Counsel .� 1, rl 7 T V R I uhhock Intl Airport I-smt, 20!1060021 021 , k� . �(�, nI FiCIEi;� I?OCiitv[I7.N T lagul I ile No 201i.o039700 �— GMJ 912016 17. Saving Clause. Should any clause in this Agreement be found invalid by a court of law, the remainder of this Agreement will not be affected and all other provisions in this Agreement remain valid and enforceable to the fullest extent permitted by law. 18. Assignment. This Agreement is personal to LUBBOCK. LUBBOCK may not sell, assign, encumber, or convey the Easement without the prior written consent of TAMUS, and any attempt by LUBBOCK to sell, assign, encumber, or convey its interest in the Easement without such consent will cause this Agreement to terminate. 19. Notices. Any notice required or permitted under this Agreement must be in writing, and shall be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address set out below. Notice may also be given by regular mail, personal delivery, courier delivery, facsimile transmission, email, or other commercially reasonable means and will be effective when actually received. TAMUS and LUBBOCK may change their respective notice address by sending to the other party a notice of the new address. Notices should be addressed as follows: TAMUS: The Texas A&M University System Office of General Counsel Attention: System Real Estate Office 301 Tarrow, 6`h Floor College Station, Texas 77840-7896 Phone: (979) 458-6350 Fax: (979) 458-6359 Email: sreo@tamus.edu LUBBOCK: City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 With copy to: Lubbock Preston Smith International Airport Attn: Kelly L. Campbell 5401 N. Martin Luther King Blvd., Unit 389 Lubbock, Texas 79403 Phone: (806) 775-3131 Email: kcampbell@mylubbock.us 20. Entire Agreement. This Agreement constitutes the entire agreement between TAMUS and LUBBOCK with respect to the subject matter hereof and will not be explained, modified, or contradicted by any prior or contemporaneous negotiations, representations, or agreements, either written or oral. This Agreement may only be amended by a subsequent written instrument executed by both parties. 21. Right of First Negotiation. In the event TAMUS at any time during the term of this Agreement desires to sell the Property upon the expiration or earlier termination of this Agreement, TAMUS shall give LUBBOCK a thirty calendar day option to negotiate the AN Pre ared 011kc ul General Counsel S} stem lztc ilLstate Of�cc 4 r I \1 R LubhoLk Int'I Wport I rmt.'_n15060021 OFFICIAL1JC3CL11v1ENT LegalI fle No 2015.0019710 GNU 8:2(V 16 w purchase of the Property. TAMUS, in its sole discretion, shall determine whether to accept LUBBOCK's offer or pursue the sale of the Property in the open market. 22. Effective Date. This Agreement is deemed to be in force as of the 14th day of December, 2015, and is intended as a renewal and replacement of that certain Easement Agreement by and between TAMUS and LUBBOCK dated December 14, 2005, and recorded in Volume 10208, Page 276 of the Real Property Records of Lubbock County, Texas. BOARD OF REGENTS OF THE TEXAS A&M UNIVERSITY SYSTEM, an agency of the State of Texas JOHNP f/ Chancellor The Texas 78&M University System APPROVED AS TO FORM: GINA JO,44311 Managing Counsel, Property & Construction Office of General Counsel The Texas A&M University System ACKNOWLEDGEMENT STATE OF TEXAS COUNTY OF BRAZOS This instrument was acknowledged before me this I L9dayofLOU, 2016, by JOHN SHARP, Chancellor of The Texas A&M University System, on behalf of the Board of Regents of The Texas A&M University System, an agency of the State of Texas. x"sY P�;., STEPHANIE BJUNE :As PR Notary Public, State of Texas »= My Commission Expires 'y%%�'��'�`�► October 26, 2019 h0111,IN fc s S'", 'em Real Estate Orlicr. F- iCEr1L DOCUh4IJNI' ARoAjyj Notary Public 5 Prepared 011he of General Counsel TAI - I ublxuk Im'I Avpon 1:smt. 2(115060021 LeLal 1 de No R 11-0039700 GNil - 8/20/16 TERMS AND CONDITIONS EXPRESSLY ACKNOWLEDGED AND ACCEPTED: CITY OF LUBBOCK, a governmental entity By: DANIEL M. POPE ... L;' �.� Mayor ATTESTo- REBCA GARZA City S retary ACKNOWLEDGEMENT STATE OF TEXAS § COUNTY OF LUBBOCK § 010 This instrument was acknowledged before me this g��day of0(WA!W--, 2016, by DANIEL M. POPE, Mayor of the City of Lubbock, Texas, a governmental entity, on behalf of said entity. (]� 1. No Public 10�'pY "ki JENNIFER SOWDER CLEMENTS NotaryOF Public, Store o1 Texas s Notary IN 124970683 My Commissar Expires 0828 2020 ,1 y. S}stem Real Estate Oftice OFFICIAL DOCI'MIENT mkInPrepaI irpci or Ge 2015 atinsel 6W23 TALR Lubhoek Inr I Airport Fsm� 201506002] Lepel pde No 2015.0039700 -- - - - GM2 - 912115 EXHIBIT "A" TRACT I METES AND BOUNDS DESCRIPTION of a 17.523 acre tract located in Section 36, Block A, Abstract 683, Lubbock County, Texas, being a portion of that 186.6 acre tract described in Volume 772, Page 431, Deed Records of Lubbock County, Texas, being further described as follows: BEGINNING at a 1/z" iron rod with cap marked "HUGO REED ASSOC" set in the South line of said 186.6 acre tract and in the North line of that 150.236 acre tract described in Volume 910, Page 607, Deed Records of Lubbock County, Texas, for the Southwest corner of that 19.972 acre tract described in Volume 1366, Page 485, Deed Records of Lubbock County, Texas, and the Southeast corner of this tract which bears N. O1°23'26" E. a distance of 2640.29 feet and N. 88°36'28" W. a distance of 3216.78 feet from a 3/a" iron pipe found at the Southeast corner of said Section 36; THENCE N. 88036'28" W., along the South line of said 186.6 acre tract and the North line of said 150.236 acre tract a distance of 676.60 feet to a 1/2" iron rod with cap marked "HUGO REED ASSOC" set for the Southwest corner of this tract; THENCE N. 01°29'51" E. a distance of 1128.63 feet to a 1/z" iron rod with cap marked "HUGO REED ASSOC" set for the Northwest corner of this tract; THENCE S. 88030'43" E. a distance of 676.74 feet to a 1/z" iron rod with cap marked "HUGO REED ASSOC" set in the West line of said 19.972 acre tract for the Northeast corner of this tract; THENCE S. O l 030'17" W., along the West line of said 19.972 acre tract a distance of 1127.49 feet to the Point of Beginning. TRACT II METES AND BOUNDS DESCRIPTION of a 16.461 acre tract located in Section 36, Block A, Abstract 683, Lubbock County, Texas, being a portion of that 186.6 acre tract described in Volume 772, Page 431, Deed Records of Lubbock County, Texas, being further described as follows: BEGINNING at a 1/2" iron rod with cap marked "HUGO REED ASSOC" set in the South line of said 186.6 acre tract for the Southeast corner of this tract which bears N. O1' 23'26" E. a distance of 2640.29 feet and N. 88036'28" v. a distance of 2216.78 feet from a 3/a" iron pipe found at the Southeast corner of said Section 36; THENCE N. 88036'28" W., along the South line of said 186.6 acre tract, at 585.37 feet pass a 3/a" iron pipe found at the Northeast corner of that 150.236 acre tract described in Volume 910, Page 607, Deed Records of Lubbock County, Texas, continuing for a total distance of 600.00 Prepared Olhce ol'General Counsel 1" �' 0'i'kc TALR — LubM ck Im'I Aupon Esml. 20I5060023 �; ',l,• sy, iem heat ]stat_ O:iILc JT v Legal bile No. 2015 0039700 Ox T; ICIA,... DOCUMENT Gnu 8/20/16 :-7. feet to a 112" iron rod with cap marked "HUGO REED ASSOC" set for the Southeast corner of that 19.972 acre tract described in Volume 1366, Page 485, Deed Records of Lubbock County, Texas for the Southwest corner of this tract; THENCE N. 01`30' 17" E., along the East line of said 19.972 acre tract a distance of 1126.82 feet to a kY' iron rod with cap marked "HUGO REED ASSOC" set for the Northwest corner of this tract; THENCE S. 88'30'43" E. a distance of 673.26 feet to a' 2" iron rod with cap marked "HUGO REED ASSOC" set for the Northeast corner of this tract; THENCE S. 05:'13'39" W. a distance of 1128.22 feet to the Point of Beginning. ;3ptejn Real Estate Ofrice 1 ;1; r OFFICIAL DOCiJtviP�i`! � t � Prepared 01) ice of General Counsel TAI R - Lubhock Int'I Airport I NMI. 2:15060021 Lc Lal Dile No 2015-0039700 CNIJ 8/20/16 *:/:II:l1:3Y PLAT SHOWING SURVEY OF A 17.523 ACRE TRACT LOCATED IN SECTION 36, BLOCK A, ABSTRACT 663 LUBBOCK COUNTY, TEXAS 196.6 ACRES TEXAS AM LE rL)4E EXFrRANENr STA rlov ✓..T2Pg. 43/ aZ2 O SCALE: 1"•300' arr CF 4LEBOrx Vol /.fid Pg am SURVEYED ON THE GROUND. OCTOBER 29. 2015 ROBERT A. CHRISTOPHER REGISTERED PROFESSIONAL. LAND SURVEYOR NO, 5167 LICENSED STATE LAND SURVEYOR STATE OF TEXAS S 88°30'43" E 676,74' 17.523 ACRES N 88036'28" W 676. POINT OF BEGINNING: THIS POINT BEARS N. 01°23'26" E. 2640.29' AND N. 88036'28" W. 3216.78' FROM A 3/4'1.P. FOUND AT THE SOUTHEAST CORNER OF SECTION 36, BLOCK A, LUBBOCK COUNTY, TEXAS (MONUMENT OF RECORD DIGNITY VOL. 772, PG. 431) NOTES* O - 1/2" I.R. w/CAP SET O - 3/4" I.P FOUND (MONUMENT OF RECORD DIGNITY VOL. 910, PG. 607). BEARINGS RELATIVE TO GRID NORTH, TEXAS COORDINATE SYSTEM OF 1983, NORTH -CENTRAL ZONE. OISTANCES ARE SURFACE, U.S. SURVEY FEET A LEGAL DESCRIPTION OF EVEN SURVEY DATE ACCOMPANIES THIS PLAT HEREYATH. 151251 RAC (RWP) COPYRIGHT 2015 HUGO REED 5 ASSOCIATES, INC. 03.1= kM--.l PLAT SHOWING SURVEY OF A 16.461 ACRE TRACT LOCATED IN SECTION 36, BLOCK A, ABSTRACT 683 LUBBOCK COUNTY, TEXAS /66 6 ACRCS TEXAS AGRI= TL97E EXPERWNT STAT/OV uw! rm Po. fJ/ S 88630'43" E 673.26' CR ,,�� Z pd0a _ SCALE: I"•300' 9 044. ' 1 ggw C' 0 I z aTY0rLl&80CK Vol /me Pg 225 SURVEYED ON THE GROUND. OCTOBE 29. 15 ROBERT A. CHRISTOPHER REGISTERED PROFESSIONAL LAND SURVEYOR NO. 5167 UCENSEO STATE LAND SURVEYOR STATE OF TEXAS _19il_ 16.461 ACRES j N 88°36'28" W 60( f K6_MC7)Y F. 77iEZ I aa/ Recp*d va. 9ro Pg. 607 NOTES: POINT OF BEGINNING: THIS POINT BEARS N. 01°23'26" E. 2640.29' AND N. 138036'28" W. 2216.78' FROM A 3/4" I.P. FOUND AT THE SOUTHEAST CORNER OF SECTION 36. BLOCK A, LUBBOCK COUNTY, TEXAS (MONUMENT OF RECORD DIGNITY VOL. 772. PG. 431) O - I/2" I.R. w/CAP SET O - 3/4" I.P FOUND (MONUMENT OF RECORD DIGNITY VOL. 910. PG. 607). BEARINGS RELATIVE TO GRID NORTH. TEXAS COORDINATE SYSTEM OF 1983. NORTH -CENTRAL ZONE. DISTANCES ARE SURFACE. U.S. SURVEY FEET A LEGAL DESCRIPTION OF EVEN SURVEY DATE ACCOMPANIES THIS PLAT HEREWITH. 151251 RAC (RWP) COPYRIGHT 2015 HUGO REED 8, ASSOCIATES, INC.