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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 Use Agreement Page--2 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 Use Ageement Page--3 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 Use Agreement Page--4 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 Use Agreement Page--5 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 Use Agreement Page--6 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. Use Agreement Page--7 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 By: " " ~~5~-D u ~I ~~ ~ ~ Its: ~TT(,p'1f1~ Cl~, /~lAA2il Date: 1`~• ~~ g53 AUTHURIit~ S1 CatllfCll.,,~,~^ -~--~--~-.._.........,7Y~~ SECReTARY JU,d• A17EST: 4 ~~ ARMANDO CHApA C(iY SECRETAR" Use Agreement Page--8