HomeMy WebLinkAboutC2008-339 - 9/16/2008 - ApprovedSTATE OF TEXAS §
COUNTY OF NUECES §
USE AGREEMENT
This Agreement is made and entered into by and between the City of Corpus
Christi, Texas (hereinafter referred to as "the City"), and Southwestern Bell Telephone
Company, a Missouri Corporation authorized to conduct business in the state of Texas
(hereinafter referred to as "AT&T Texas").
IN CONSIDERATION of the mutual covenants and agreements herein set
forth and other good and valuable consideration, AT&T Texas agrees to allow the use of its
premises at 406 N. Carancahua, Corpus Christi, Texas ("Owner's Property"), for use by the
City as an Emergency Operations Center (EOC) in times of imminent peril. The parties
agree as follows:
1. AT&T Texas will license to the City access on anon-exclusive basis the
portion of AT&T Texas's central office facilities located at 406 N. Carancahua, Corpus
Christi, Texas and described and depicted in Exhibit "A", including certain rights to use
certain common areas and accessways as designated by Owner from time to time (the
"Premises") for certain authorized personnel of the city for use as a twenty-four (24) hour
Emergency Operations Center in the event of and in anticipation of a natural disaster, more
particularly an anticipated hurricane strike to the region. AT&T Texas reserves the right in
its sole discretion to designate alternate areas within Owner's Property for use by the City
pursuant to this Agreement, in which event the parties shall attach hereto a substitute Exhibit
2008-339
09/16/08
Res. 027853
Page--1
SW Bell (AT&T)
"A" depicting the Premises. The City hereby agrees to accept the Premises in its and their
"as-is" condition without the benefit of any representations or warranties of any kind
whatsoever, including fitness for a particular purpose. Any improvements or alterations
necessary for City's use shall be made by City at City's cost, and only with written approval
of AT&T Texas. Licensee shall not expand the physical footprint of the Premises to which it
has rights. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, THIS LICENSE SHALL NOT CONFER OR BE DEEMED TO CONFER
ANY PROPERTY INTEREST OR RIGHT IN OWNER'S PROPERTY AND THE CITY
HEREBY ACKNOWLEDGES THAT THE RIGHTS CONFERRED HEREUNDER SHALL
CONSTITUTE MERELY ANON-EXCLUSIVE, REVOCABLE LICENSE TO USE THE
PREMISES SOLELY FOR THE PURPOSES SET FORTH HEREIN.
2. The City agrees that the Center will be staffed by no more than thirty-five (35)
the City employees on a twenty-four (24) hour basis. A list of authorized City employees
will be submitted to AT&T Texas' Area Manager, External Affairs, no later than twenty-
four (24) hours prior to occupancy of the facility. This list will identify those persons who
will be authorized to enter the premises, shelter in the building, and staffthe Center. All City
personnel will have proper credentials and must present such credentials in order to gain
access into the Owner's Property. A City employee's name must appear on the list provided
by the City to AT&T Texas, and he/she must present a City identification card, in order to
access the facility. AT&T TEXAS SHALL HAVE THE RIGHT IN ITS SOLE
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DISCRETION TO DENY OR REVOKE ACCESS TO THE PREMISES TO ANYONE ON
SUCH LIST FOR ANY REASON OR NO REASON.
3. AT&T Texas agrees that upon notification by the City of its intent to activate
the Emergency Operations Center, AT&T Texas will allow a representative from the City to
enter the premises for purposes of making the facility ready for EOC operations. Subject to
the approval of AT&T Texas, the City's representative is authorized to make the facility
ready for EOC operations. Those preparations include, but are not limited to: activation of
pre-wired communication lines, make ready break rooms, kitchen, etc., designation of areas
where the City employees will be allowed access for sleeping quarters, kitchen, break room,
restrooms, and other authorized access areas. Any costs incurred in making any necessary
preparations will be the responsibility of the City.
4. The City shall comply with AT&T Texas' requirements for the preparation
and use of space on the Premises including, but not limited to, all requirements related to
security of the Premises and it occupants, the types of equipment that can be placed on the
premises, and the requirements related to equipment standards and qualifications and the
installation, maintenance, and powering of the same. The City shall be responsible for
informing itself of AT&T Texas' above-described requirements by working with AT&T
Texas reasonably in advance of use of the space and proposed placement of equipment,
which time may vary based on the reasonable ability under the circumstances to anticipate
need. A list and description of the equipment the City intends to place on the Premises will
be submitted to AT&T Texas' Area Manager, External Affairs thirty (30) days prior to
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occupancy of the premises when reasonably possible, but in all events no later than 24 hours
prior to occupancy of the premises. To the extent reasonably possible, the City shall provide
AT&T Texas with its list of equipment and proof that its proposed equipment, and the
proposed installation, use, maintenance, and powering of such equipment, meets the relevant
AT&T requirements. AT&T Texas shall have the right in its sole discretion to deny
placement of equipment for any reason or no reason.
5. AT&T Texas recognizes and agrees that the City will maintain and keep ready
in the facility the City's basic furniture, i.e. tables, chairs, cabinets, telephone and general
office supplies. The City agrees that AT&T Texas is not responsible for any damage to the
City's furniture.
6. AT&T Texas acknowledges and agrees that the City will maintain and staff an
Emergency Operations Center and it will be continuously maintained for a reasonable period
of time after the calamity or emergency has subsided. This period of time may range from
one (1) day to three (3) weeks, depending on the nature and degree of the severity of the
occurrence. The City will demobilize the Emergency Operations Center as soon as
practicable so as to not disrupt continuity of government.
7. The City will notify AT&T Texas of its intent to activate a humcane EOC as
soon as the need becomes apparent, but in no event less than seventy-two (72) hours prior to
predicted gale force winds reaching the Southeast Texas Regional Gulf Coast.
8. The City and AT&T Texas agree that each will provide to the other current
contact information, i.e. home telephone numbers, cell phone numbers, office telephone
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numbers, pager numbers, etc., for those persons critical to facilitating emergency access to
the premises.
9. The City will assume responsibility for providing food, drinks and other
supplies for its employees.
10. The City will maintain the premises in a safe, clean and orderly manner and
condition during the operation of the EOC. Upon deactivation, it will return the facility free
of all trash and debris caused by its personnel during occupancy. In addition, the City shall
repair any damage to the Premises determined to be caused by the City at its sole cost.
AT&T Texas shall provide written notice to the City of the need to address any maintenance
or damage that requires repair. The City shall within seven (7) days of receipt of the written
notice acknowledge or dispute responsibility for the damage. If the City agrees that the
identified damage is to be repaired by the City, it shall schedule the repairs within thirty (30)
days of its acceptance of the responsibility. In the event the City disputes responsibility for
the damage and does not accept responsibility therefore, AT&T Texas may take whatever
action available to it by law to remedy the situation.
11. The City represents and AT&T Texas acknowledges that the City is limited in
the manner in which it may assume responsibility for second party liability. To the extent
allowed by law and the Texas Constitution, the City will hold harmless AT&T Texas from
any claims, damages, costs and expenses arising from the conduct or action of its employees
in or upon the premises resulting from or by reason of the operation of the Emergency
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Operations Center. The City hereby covenants to exercise all due care so as not to interfere
with any operations of AT&T Texas or AT&T Texas's licensees, tenants or occupants.
12. The City hereby agrees that AT&T Texas is voluntarily providing the City
with this access, and that AT&T is doing so without compensation. The Premises are
intended to be used by the City as an emergency operations center in the event of a natural or
man-made disaster. As such, AT&T Texas seeks to invoke and the City acknowledges the
habllity protectlOn afforded It by the TEXAS CIVIL PRACTICE AND REMEDIES CODE SECTION
79.003, DISASTER ASSISTANCE, in that AT&T Texas is a corporation providing
assistance at the request of the City of at a time of a natural disaster that endangers or
threatens to endanger individuals, property, or the environment.
13. The City shall obtain and maintain, at its sole cost, throughout the use of the
Premises, the following insurance: (1) Commercial General Liability with limits of
$5,000,000.00 per occurrence, (2) Automobile Liability with a combined single limit of
$1,000,000.00 per accident, (3) Workers Compensation as required by law, (4) Employer's
Liability with limits of $1,000,000.00 per occurrence, and (5) standard form property
insurance ("All Risk" coverage) equal to 100% replacement cost covering the City's
property. The City shall name AT&T Texas as an additional insured with respect to the
above Commercial General Liability insurance. The City WANES ANY RIGHTS OF
RECOVERY AGAINST AT&T TEXAS FOR INJURY OR LOSS DUE TO HAZARDS
COVERED BY ITS INSURANCE AND the City SHALL REQUIRE SUCH INSURANCE
POLICIES TO CONTAIN A WAIVER OF RECOVERY AGAINST AT&T TEXAS, ITS
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PARENT, AFFILIATES AND ITS AND THEIR DIRECTORS, OFFICERS, AND
EMPLOYEES. All insurance policies carried by the City shall be with companies that have
a general policy holder's rating of not less than "A" and a financial rating of not less than
Class "X" in the most current edition of Best's Insurance Reports. The City shall furnish
AT&T Texas within twenty (20) days of the date of this License written evidence of
insurance as required above to AT&T Texas's reasonable satisfaction, including a statement
providing for written notification to AT&T Texas by the insurer not less than thirty (30) days
prior to cancellation or reduction of any required coverage. The above referenced insurance
requirements aze met if the City can demonstrate that it is aself-insured entity.
14. The parties acknowledge that each party and its counsel have reviewed and
revised this Agreement, and the parties hereby agree that the normal rule of construction to
the effect that any ambiguities aze to be resolved against the drafting party will not be
employed in the interpretation of this Agreement or any amendments hereto.
15. This Agreement shall be in effect for five (5) years from the date of execution.
AT&T Texas may revoke this agreement at anytime upon thirty (30) days notice to the City.
16. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN
THE PARTIES WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREIN
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
17. THIS AGREEMENT MAY BE MODIFIED OR AMENDED ONLY UPON
WRITTEN CONSENT BY BOTH PARTIES.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date set
forth above.
Southwestern Bell Telephone Company,
d/b/a AT&T Texas
By:
Its:
Date: 'b a1~t ~~6
The City of Corpus Christi, Texas
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Date:
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SECReTARY JU,d•
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C(iY SECRETAR"
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