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Home My WebLink AboutResolution - 1955 - Alley Use License Agreeement-J P O'malleys Inc-Grease Trap, L14 B100 Overton Add - 02/28/1985Resolution #1955 Agenda Item #29 February 28, 1985 HW:da RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT 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 an Alley Use License Agreement with J. Patrick O'Malley's, Inc., attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolu- tion as if fully copied herein in detail. Passed by the City Council this 28th day of February , 1985. ALA HENRY, AYOR ATTEST: n ane to Boyd, City Sec etary APPROVED AS TO CONTENT: Tom Nivens, igh -of-Way Agent - APPROVED AS TO FORM: arold Wi atd, Assistant C 1 jty, Attorney Resolution #1955 ALLEY USE LICENSE THE STATE OF TEXAS § COUNTY OF LUBBOCK § This indenture made this 28th day of February 1985, being the date of this Agreement between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation, and J. PATRICK O'MALLEY'S, INC., of Lubbock County, Texas, 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 concrete and metal sewer grease trap, to wit: BEGINNING eleven feet east of the northwest corner of Lot 14, Block 100, Overton Addition to the City of Lubbock, Lubbock County, Texas: THENCE two feet north; THENCE three feet east; THENCE two feet south; THENCE three feet west to the PLACE OF BEGINNING. The term of this grant 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 notice to LICENSEE. Said notice shall be deemed properly served if deposited in the post office, postage paid, addressed to LICENSEE at 1211 University Avenue, Lubbock, Texas 79401, or the last known address of LICENSEE. Upon expiration or cancellation and revocation of this license by the CITY OF LUBBOCK or the abandonment of the 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 compen- sation'for such grant the sum of TWO HUNDRED FIFTY AND NO/100 ($250.00) 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 rates 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 replacement and repairing of paving, sidewalks and utilities of any nature occasioned by the construction as authorized by this license. 3. In the event the CITY OF LUBBOCK determines that the existence of such use 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 the license herein granted and prepare or begin or complete any part of the con- struction 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 times 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, 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 and 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 perfor- mance 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. 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. 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 and 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 its 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 - 2 - the public way it is permitted to use hereby and agrees to give peaceful possession of said property covered herein upon termi- nation or cancellation of this license. CITY OFLU OCK BY: X—LAW HENRY AY ATTEST: ane to Boyd, City Secr6ta AGREED TO AND ACCEPTED this day of APPROVED AS TO CONTENT: Tom Nivens, Right -of -Way Agent APPROVED AS TO FORM: . 1985. LICENSEE: J. PATRICK O'MAL- LEY'S, INC. MARK JOHNSON, PRESIDENT AL a::6d :9" Harold Willard, Assistant City Attorney THE STATE OF TEXAS § COUNTY OF LUBBOCK § BEFORE ME, the undersigned authority, a Notary Public in and for said County, Texas, on this day personally appeared ALAN HENRY, MAYOR, known to me to be the person whose name is sub- scribed to the foregoing instrument and acknowledged to me that he executed the same as the act and deed of the CITY OF LUBBOCK and as Mayor, for the purposes and consideration therein expres- sed and in the capacity therein stated. IVEN NDER MY HAND AND SEAL OF OFFICE this day of � , 1985. otary Public, Lubbock County, Texas - 3 - THE STATE OF TEXAS COUNTY OF LUBBOCK BEFORE ME, the undersigned authority, a Notary Public in and for said County, Texas, on this day personally appeared MARK JOHNSON, 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 deed of said J. Patrick O'Malley's, Inca GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 9985. Notary Public, Lubbock County, Texas - 4 -