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HomeMy WebLinkAboutResolution - 2014-R0287 - Easement Use License Agreement - Bank Of America, National Association - 08/28/2014RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock 131-1 and is hereby authorized and directed to execute for and on behalf of the City of' Lubbock, an Eascmcnt-Usc-License Agreement, by and between the City of Lubbock and Bank of America, National Association, and all related documents, Said License is attached hereto and incorporated in this Resolution as it' fully set forth herein and shall be included in the minutes ol'the City Council. Passed by the City Council this August 28 2014. --z GLro-B-L<-rsON, MAYOR ATTEST: R4cca Garza. City Secret4v APPROVED AS TO CONTENT: R. Keith Smith, P.E. Chief Operating Official Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Chad Weaver, City Attorney c%v/ccdoes/Res.Easement-Use-I.ic Agmin(.13k ol'Anicrica 4,8.2014 EASEMENT USE LICENSE THE STATE OF TEXAS § COUNTY OF LUBBOCK § This indenture made this day of , 2014, being the date of this Agreement, between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation, and BANK OF AMERICA, NATIONAL ASSOCIATION, 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 utility easement for a covered drive-thru, to -wit: METES AND BOUNDS DESCRIPTION of a 20 foot by 26 foot tract of land being a portion of Tracts F-9, F-10, F-42 and F43, Woodland Park Addition to the City of Lubbock, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in Volume 1885, Page 54 of the Deed Records of Lubbock County, Texas, and further described as follows: BEGINNING at a point in the centerline of a 20 foot underground utility easement and the South line of said Tract F-10 from whence a %" iron rod found at the Southeast corner of said Tract F-11 of said Woodland Park bears a distance of 65.00 feet; THENCE South, a distance of 10.00 feet to a point in the South line of said 20 foot utility easement for the Southeast corner of this tract; THENCE West, along the South line of said easement, at a distance of 15.00 feet pass the West line of said Tract F42 and the East line of said Tract F-43, in all a distance of 26.00 feet to a point for the Southwest comer of this tract; THENCE North, a distance of 10.00 feet pass the North line of said Tract F-43 and the South line of said Tract F-9, in all a distance of 20 feet to a point in the North line of said 20 foot easement for the Northwest corner of this tract; THENCE East, along the North line of said easement, at a distance of 11.00 feet pass the East line of said Tract F-9 and the West line of said Tract F-10, in all a distance of 26.00 feet to a point for the Northeast comer of this tract; THENCE South, a distance of 10.00 feet to the PLACE OF BEGINNING. The term of this grant shall be far 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 notice to LICENSEE. Said notice shall be deemed properly served if deposited in the post office, postage paid, addressed to LICENSEE at Mail Code: NC2-150-03-06,13850 Ballantyne Corporate Place, Charlotte, North Carolina 28277, Attn.: Lease Administration: with a copy to: Bank of America, National Association, Bank of America Plaza, 901 Main Street, 12s' Floor, Mail Code: TX1-492-12-14, Dallas, Texas 75202 Attn: Global Workplace, 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. However, upon mutual consent of the CITY OF LUBBOCK and LICENSEE, the improvements will be left in place rather than removed after expiration, cancellation or abandonment of this license. 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. 1. LICENSEE shall pay to the CITY OF LUBBOCK as compensation for such grant the sum of FIVE HUNDRED AND NO/100 ($500.00) DOLLARS cash in advance contemporaneously with the acceptance and execution hereof by LICENSEE for the first five (5) year term of this license, and thereafter such rate of compensation may be changed for each succeeding five (5) year term by the CITY OF LUBBOCK to a rate of compensation which is based on procedures and policies as established by the City Council of the CITY OF LUBBOCK, based on an appraisal of the fair market value of such land by the Right -of -Way Department of the CITY OF LUBBOCK, as applied to the formula for determining such rate established by the City Council. If such rate is not changed by the CITY OF LUBBOCK, the rate for the preceding five (5) year term shall apply. The CITY OF LUBBOCK shall notify the LICENSEE of any change in rates in writing before the start of the five (5) year term to which such change in rate shall apply, and if such notification is not made, then the rate for the preceding five (5) 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 materials, 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 expensed in relocating or rerouting over and above the expense which would have been incurred except for the 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. Notwithstanding the foregoing, LICENSEE may assign this license, without the prior written consent of the CITY OF LUBBOCK, to any parent, subsidiary or affiliate of LICENSEE provided LICENSEE shall continue to be liable under this license, with the same force and effect as if no such assignment had been name, unless otherwise released by the CITY OF LUBBOCK in writing. S. 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 EASEMENT USE LICENSE BANK OF AMERICA. N.A. LICENSEE, its successors and assigns will at all times defend, indemnify and otherwise hold the demands, actions, causes of action, 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 use permitted herein. The CITY OF LUBBOCK, at its option, may require an agreement with my contractors hired by the LICENSEE to perform the construction, repair or maintenmee permitted herein, which expense growing out of the performance of the work to be done by such contractors. The CITY OF LUBBOCK may further require my 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 CFN OF LUBBOCK, gumm ecing 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 CrrY OF LUBBOCK. The CITY OF LUBBOCK agrees to give notice to LICENSEE prior to incoming my extra or expenses, or the payment of any such claims at 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 tout satisfactory to the City Attorney for the Cr1Y OF LUBBOCK, and which names the CITY OF LUBBOCK as the insured, said policy covering the uses herein granted. 7. Prior to my construction as authorized by this license, the LICENSEE shall submit to the City Engineer plans and spxifications for the concoction to be done, and the LICENSEE shall not commence construction until such plans and specifications are approved by rhe City Engineer. S. All ofthe covmants and provisions ofthis 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 more to the benefits of the parties hereto, but no assignment here£ 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 five (5). 9. LICENSEE, by the mceptmce 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 my 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. 10. The CITY OF LUBBOCK reserves the right to exercise my right at remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek my and all forms of relief in a court of competent jurisdiction. Further, the CITY OF LUBBOCK shall not be subject to my arbitration process prior to exercising its urestrieted right to seek judicial remedy. The remedies set forth herein we cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and mother provision in, or related to, this document, this provision shall control. CITY OF LUBBOCK BY: GL .ROBERTS N, MAYOR FASEMENr USE LICENSE aaNKOFAM MCAN.A ATTEST: Rebel Garza, City Secretary APPROVED R. Keith Smrth, P.E., ChiefOpersN Dave Booher, Right -of -Way Agent APP OV AS OFORM: Chad Weaver, Assistant City Attorney AGREED TO AND ACCEPTED this i dny of 2014. BANK OF AMERICA, NATIONAL ASSOCIATION BY:4 c< ;9��..(.�i2a-watTr�/ CS-a4.3Y/ 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 GLEN C. ROBERTSON, 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 in the capacity therein stated as the act and dad of the CITY OF LUBBOCK and as MAYOR. ///� 1y,( ! GIVEN UNDER MY HAND AND SEAL OF OFFICE this � day of 2014. MA=D.AMIURCHISONMy17 EASEMENT USE LICENSE SANKOFAMEKICAN.A THE STATE OF T1;XA5 COUNTY OF DALLA BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared Judy Wilkinson, Vice. President , known to me to be the person whose name is subscribed to the foregoing instrument and acknowiedged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated as the act and deed of BANK OF AMERICA, NATIONAL ASSOCIATION. GIVEN UNDER MY HAND AND SEAL OF OFFICE this �-' day of July , 2014 Notary Public in and for the State of Texa s My Commission Expires: December 1, 2014 Ec4c =TEXAS qPuNotary Public My cwlEusemeni Use License -Bunk of Mtierica, Nod Assoc 7.28.34 EASEMENT USE LICENSE BANK OF AMERICA, N.A.