HomeMy WebLinkAboutResolution - 2013-R0250 - Street Use License - ENMR Telephone Cooperative - 08/08/2013Resolution No. 2013-RO250
August 8, 2013
Item No. 5.11
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, by and between
the City of Lubbock and E. N. M. R. Telephone Cooperative, and all related documents.
Said License 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.
assed by the City Council this August 8, 2013 ._ _, 2013.
GLE ROBE TSON, MAYOR
ATTEST:
kebec a Garza, City Secret
APPROVED AS TO CONTENT:
Dave Booher, Right -of -Way Agent
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
giccdocs/St Use Lic- ENMR Telephone Coop
1.25.13
Resolution No. 2013-RO250
STREET USE LICENSE
THE STATE OF TEXAS §
COUNTY OF LUBBOCK §
KNOW ALL MEN BY THESE PRESENTS:
This License made this 8th day of August , 2013, being the date of this
Agreement between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation, and
E. N. M. R. Telephone Cooperative, a New Mexico corporation, 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 dedicated street for a
subsurface fiber optic communications cable, to wit:
BEGINNING at a point in the right-of-way on the Northwest corner of the
intersection of North University Avenue and Kent Street, City of Lubbock,
Lubbock County, Texas;
THENCE continuing East on the North side of Kent Street to North Avenue Q;
THENCE South along the West side of North Avenue Q, under Loop 289 to the
Eastbound access road of Loop 289;
THENCE West along the South side of the Eastbound access road of Loop 289
to North Avenue S;
THENCE South along the East right-of-way line of North Avenue S to Erskine
Street;
THENCE East along the South right-of-way line of Erskine Street to North
Avenue P;
THENCE South along the East right-of-way line of North Avenue P to North
Avenue Q (Texas Hwy. Spur 326);
THENCE East crossing under North Avenue Q, thence South along the East
right-of-way line of North Avenue Q, a distance of 178.00 feet, thence East a
distance of 180.00 feet to North Avenue N;
THENCE Southeast along the Northeast side of North Avenue N to Baylor
Street;
THENCE along the North side of Baylor Street and proceeding East on Baylor
Street to a point on the East side of North Avenue K;
THENCE South along the East side of North Avenue K to 1 St Street;
THENCE East along the North side of I" Street to Avenue J;
THENCE South along the East side of Avenue J to 151 Place;
THENCE East along the North side of Is' Place a distance of 508.00 feet to a
point being on the West side of the concrete alley;
THENCE South along the West side of the concrete alley to a point on the North
side of 2nd Place;
THENCE West along the North side of 2°d Place to Texas Avenue;
THENCE South along the West side of Texas Avenue to 3`d Street;
THENCE East along the South side of 3'd Street a distance of 218.00 feet to a
point being on the East side of existing alley;
THENCE South in alley to 4`h Street, crossing under 4 1 Street to a point on the
South side of 4`h Street;
THENCE South along an existing utility easement crossing under Santa Fe
Railroad tracks to an ending point located at a pole on the South side of the
railroad tracks to the POINT OF BEGINNING.
The term of this License shall be for five (5) years from date hereof, and shall be automatically
extended for a successive five (5) year term not to exceed twenty (20) years in any event unless either
party shall give written notice of termination to the other party sixty (60) days 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 sixty (60) days
notice to LICENSEE. Said notice shall be deemed properly served if deposited in the post office,
postage paid, addressed to LICENSEE at E.N.M.R. Telephone Cooperative, P.O. Box 1947, Clovis,
New Mexico, 88102-1947, 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.
1. LICENSEE shall pay to the CITY OF LUBBOCK as compensation for such grant the
sum of ONE THOUSAND FIVE HUNDRED FORTY-THREE AND 47/100 DOLLARS,
($1,543.47), 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 ninety (90) days 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
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.
STREET USE LICENSE
E.N.M.R. TELEPHONE COOPERATIVE
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
further 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. CITY OF LUBBOCK shall not be
liable to LICENSEE for any damages to LICENSEE'S cable licensed hereunder arising out of the
construction, reconstruction or maintenance of the CITY OF LUBBOCK'S street or any of CITY OF
LUBBOCK'S utilities in the area occupied by LICENSEE'S cable by any city department. State One
Call Regulations will be followed by both parties.
6. LICENSEE agrees and is required to furnish a certificate 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 an additional insured, said
policy covering the uses herein granted.
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 Parties 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 Parties 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, the provision shall
control.
ATTEST:
Rebetqa Garza, City Secretary
CUY OF LJXBOCK
By:
CAMERTSON, MAYOR
STREET USE LICENSE
E.N. M. R. TELEPHONE COOPERATIVE
APPROVED AS TO CONTENT:
mB"
Dave Booher, Right -of -Way Agent
APPROVED AS TO FORM:
C eaver, Assistant City Attorney
AGREED TO AND ACCEPTED this
THE STATE OF TEXAS
COUNTY OF LUBBOCK
2013.
E. N. M. R. Telephone Cooperative,
a New Mexico Corporation
{
By: ZAI M
BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on
this day personally appeared GLEN C. ROBERTSON, 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
executed the same for the purposes and consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this -C3 , 2013.
�"r CELIA WEBB
Notary Public, State of Texas Notary ublic in and for the State of Texas
My Commission Expires 3-01.20 14 i
My Commission Expires:
THE STATE OF NEW MEXICO
COUNTY OF W'MY §
BEFORE ME, the undersi ned authority, a Notary Public in and for said County and State, on
this day personally appeared lo, %V^ve%'PtiQ,10- F. .D. , 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 as an act and deed of said
E. N. M. R. Telephone Cooperative, a New Mexico Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 31 1w la 2013.
• ' JASp' .
otary Public in and for the State of New Mexico
- - �� 1 - y My Commission Expires: / �S
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