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Res 034-2003 3/18/2003RESOLUTION NO. t -� RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, GRANTING A TWELVE -FOOT BY SEVENTY -FOOT (12'X 70') TEMPORARY CONSTRUCTION EASEMENT TO HCBECK, LTD. ON NINTH STREET BETWEEN LAMAR STREET AND SCOTT STREET FOR A PERIOD OF NINE MONTHS FOR THE PLACEMENT OF TEMPORARY CHILLERS MOUNTED ON SKIDS FOR SOUTHWESTERN BELL CORPORATION; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, HCBeck, Ltd. has been awarded the contract to replace the chillers for Southwestern Bell Corporation; and WHEREAS, plans for this project require a nine -month temporary construction easement to place the temporary chillers; and WHEREAS, the location requested on Ninth Street in the allocated parking area has been determined to be the safest and least intrusive location; WHEREAS, it is fully understood and agreed upon that any problems that may arise or any damages that may occur regarding this easement granted to HCBeck, Ltd. that any and an all such problems and /or damages shall be remedied at the sole expense of Beck Corporation; WHEREAS, the City Council of the City of Wichita Falls, Texas deems it advisable and in the public interest to grant the temporary easement as requested to Beck Corporation. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: S ECTION 1 . The City of Wichita Falls shall grant the attached easement to HCBeck, Ltd. for the replacement of chillers for Southwestern Bell Corporation in consideration of the receipt of $2,160.00. SECTION 2 . It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 18` day of March, 2003. ATTEST: City Clerk TEMPORARY CONSTRUCTION EASEMENT STATE OF TEXAS COUNTY OF WICHITA Effective date: Grantor: Grantor's mailing address: Grantee: Grantee's mailing address: March 18, 2003 City of Wichita Falls, Texas 1300 Seventh Street Wichita Falls, Texas 76301 HCBeck, Ltd. P. O. Box 132579 Dallas, Texas 75313 -2579 Consideration: Two Thousand One Hundred Sixty ($2,160.00) Dollars, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. Term: Commencing on the effective date and continuing for a period of nine months thereafter, terminating on December 17, 2004. Easement Property: Certain tract of land as more particularly described in Exhibit D, attached and incorporated by reference. Project: Installation and maintenance of temporary chillers to service the buildings of the Southwestern Bell Corporation central offices located between Lamar Street and Scott Street, as identified in the incorporated exhibits. Grantor, for the Consideration and subject to the terms and conditions set out, hereby grants to Grantee a non - exclusive easement through, over, across, on, and under the Easement Property for the Term solely for the purpose of the Project. This Temporary Construction easement does not constitute a conveyance in fee of the Easement Property, nor the minerals therein and thereunder, but grants only an Easement subject to the following: 1. Improvements. Grantee may construct project improvements (the "Improvements ") on the Easement Property as identified in Exhibits A -D, attached hereto and incorporated herein. 2. Additional Term. In anticipation of the expiration of this easement, Grantee may request the Grantor to enter into a new easement covering the Easement Property on such terms and conditions mutually satisfactory to Grantor and Grantee. Grantor may elect to enter into a new easement covering the Easement Property or any other property of Grantor at Grantor's sole discretion, and Grantor is not obligated in any way to agree to enter into any agreement. 3. Removal of Property of Grantee after Expiration or Termination. Within 30 days after termination of this Easement, Grantee must remove the chillers and any additional improvements placed in or on the Easement Property by Grantee. At the option of Grantor, any improvements or other personal property remaining on the Easement Property after such 30 -day period will be deemed abandoned, and Grantor may sell, use, dispose of, or otherwise manage any property as Grantor wishes. 4. Termination. If Grantee fails to use all or any part of the Easement Property for the stated purposes for a period of 120 days or uses the Easement Property at any time for any other propose, or if Grantee at any time permanently abandons this Easement or fails in any way to comply with the terms and conditions of this Easement and such default is not cured within 30 days after receipt of notice of default from Grantor, then in any event, at Grantor's option, this Easement will terminate and be of no further force and effect as to the Easement Property or any part thereof, and the Easement Property must absolutely revert to and revert in Grantor, its successors or assigns, immediately on written notice from Grantor. Grantee agrees in such event to execute and deliver to Grantor, its successors or assigns, a proper release or reconveyance, duly executed and acknowledged. 5. Rights of Other Parties. This Easement is made subject to any and all existing easement, prescriptive rights, rights -of -way, leases, subleases, licenses, and permits affecting the Easement Property, or any part thereof, whether of record or not, and all presently recorded matters that affect the Easement Property. 6. Indemnity. Grantee hereby agrees to indemnify Grantor, its officers and employees from and against, and to reimburse Grantor, its officers and employees with respect to, any and all liabilities (including without limitation strict liability) claims, demands, damages, expenses or causes of action of whatever nature, specifically including, but not limited to, reasonable attorneys' fees and costs of suit paid or incurred by Grantor, its officers and employees, asserted by others in any way related, directly or indirectly, to the Easement Property or Grantee's use and that are caused by or arise in any manner out of acts or omissions of Grantee, its agents, employees, representatives, or any other persons acting under its control or at Grantee's direction or request. 7. insurance. Grantee shall furnish Grantor with a Certificate of Insurance evidencing general liability coverage in a minimum amount of $500,000 and shall include the City of Wichita Falls as an additional insured. 8. Damage to Property. If, in exercising Grantee's rights under this Easement, Grantee directly or indirectly causes any damage to the Easement Property not contemplated by this Easement or any damage to any other property of Grantor, of any improvements located on any property of Grantor, Grantee must, at Grantee's sole cost and expense and within a reasonable time after the exercise of such rights, but in no event later than 30 days from the date the damage occurred, restore the Easement Property, all other such property, and/or such improvements to the original condition existing prior to the change or damage. 9. Restoration of Surface. On termination or expiration of this Easement, Grantee must restore the Easement Property to as nearly its original condition as possible. 10. General Requirements. All work to be performed by Grantee or its agents, employees, representatives, or any other persons acting under its control or at its direction or request must be done: a. At the sole risk, cost and expense of Grantee; b. In accordance with the applicable requirements of all Federal, state and local governmental and regulatory authorities having jurisdiction, including, without limitation, all applicable environmental laws and worker health and safety laws; C. In a manner that will not unreasonably interfere with access to the adjacent or remainder property of Grantor; and d. In a manner that will create the least reasonably possible disturbance or interference with uses of the Easement Property or adjoining properties of Grantor by parties with existing rights in such properties or otherwise unduly interfere with the rights of any other lessees, licensees or permittees. 11. Notices. Any notice required or permitted to be delivered under this Easement is deemed received when actually delivered by hand delivery, or overnight courier, or when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to Grantor or Grantee, as the case may be, at the address stated on Page 1 of this Easement. 12. Miscellaneous. a. Applicable Law. This Easement is construed and enforced in accordance with the laws of the State of Texas. Venue for any cause of action for enforcement of this Agreement will be in Wichita County, Texas. b. Severability. In case of any one or more of the provisions contained in this Easement for any reason is held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this Easement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. C. Entire Agreement. This Easement constitutes the entire agreement between the parties and cannot be amended except by written instrument signed by both parties. d. Authority to Enter into this Lease. If Grantee is a corporation, partnership, or other entity, each individual executing this Easement on behalf of Grantee represents that he or she has full power and authority to enter into this Easement. e. Captions. The captions used here are for convenience only and do not limit or amplify the provisions hereof. L Gender. Words of any gender used in this Easement are held and construed to include any other gender and words in the singular number are held to include the plural, unless the context otherwise requires. g. Grantee. When appropriate, the term "Grantee" includes the employees, contractors, representatives, and authorized agents of Grantee. h. Binding Nature of Easement. This Easement, and the terms and conditions contained herein, will inure to the benefit of and be binding on Grantee and Grantor, and their respective representatives, successors, and assigns. To HAVE AND HOLD the Easement Property for the Term for the purposes and subject to the conditions described above, without warranties of any kind, express or implied. CITY OF WICHITA FALLS Lo Attest: City Clerk Lo James Berzina, City Manager HCBECK, LTD. Attest: