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HomeMy WebLinkAboutC2012-382 - 10/23/2012 - ApprovedUSE PRIVILEGE AGREEMENT STATE OF TEXAS § COUNTY OF NUECES § This use privilege agreement ( "Agreement ") is entered into by and between the City of Corpus Christi ( "City "), a Texas home -rule municipal corporation, Super Commercial Properties, LLC ( "Permittee No. 1"), a Texas limited liability company and property owner of 123 44th Street, Corpus Christi, Texas ( "Building 1 "), whose business address is 4531 Ayers, Street, Suite 201, Corpus Christi, Texas, and Gates E &S North America, Inc. ( "Permittee No. 2 "), a Colorado corporation and property owner of 134 44th Street, Corpus Christi, Texas (`Building 2 "), who is also the lessee of Building 1. In accordance with Article IX, Section 1, of the City's City Charter and in consideration of payment of Fifty Dollars ($50.00) paid by Permittee No. 1 and Permittee No. 2 (collectively referred to in this Agreement as "Permittees "), the receipt of which is acknowledged, the City has granted and conveyed, and by these presents does grant and convey to Permittees, for the term and upon the conditions stated in this Agreement, a use privilege for the right to install, operate, maintain, and remove an aerial fiber optic communications cable from a private pole located on the north side of Building 2 crossing approximately 50 linear feet of the 44th Street public right -of -way and attaching to the highest portion of Building 1 ( "Aerial Fiber Optic Cable "), as shown in Exhibits "A" (plan view) and "B" (site plan). Copies of Exhibits "A" and "B" are attached to this Agreement and incorporated into this Agreement by reference as if fully set out here in their entireties. The area in which the use privilege is granted to locate the Aerial Fiber Optic Cable is referred to in this Agreement as the Use Privilege Area. TO HAVE AND TO HOLD the same unto Permittees, their successors and assigns, together with the right under the conditions specified in this Agreement, to at any time enter upon the above described public right -of -way to maintain the Aerial Fiber Optic Cable, and it is further understood that the use privilege granted by this Agreement is subject to the Permittees' compliance at all times with the following conditions: A. This Agreement, and the rights granted under the Agreement, may be revoked at any time by the City upon providing the Permittees not less than 30 days notice in writing by the City's City Manager, or his designee ( "City Manager "). In the event of a revocation by the City Manager or earlier termination of this Agreement by either party, no portion of any payment made under this Agreement is refundable to the Permittees. B. This Agreement is for a term of one (1) year. At the end of the initial term, this Agreement renews automatically for up to four (4) successive annual terms upon the payment of $50 by the Permittees, unless Permittee No. 1, Permittee No. 2, or the City provides written notice of intent not to renew to the non- terminating parties at least 60 days before the end of any annual 2012 -382 10/23/12 Ord. 029662 ,roperties %2OvFinal[1] Page 1 of 8 Super Commercial Properties LLC INDEXED C. This Agreement may not be assigned by Permittees, either individually or collectively, without the City Manager's prior written consent. Any appropriately approved assignment of this Agreement to any tenant of Permittees (either individually or collectively), or other successor or assign of Permittees, shall cause all terms and conditions of this Agreement to become binding upon said tenant, successor, or assign. D. The Permittees shall acquire and maintain at all times for the term of this Agreement insurance coverages pertaining to the Use Privilege Area granted under this Agreement and the activities authorized by this Agreement. The types of required insurance coverages must be in the minimum amounts set forth in the attached Exhibit "C," the substantive content of Exhibit "C" being incorporated by reference into this Agreement as if fully set out here in its entirety. The insurance policies must name the City as an additional insured and may not be canceled, renewed, or materially changed by Permittees unless at least ten (10) days advance written notice has been provided to the City. Upon the City Manager's written request, Permittees shall provide copies of all requested insurance policies to the City's City Attorney. E. Should construction be deemed necessary by Permittees in the Use Privilege Area, construction plans and specifications for all proposed work shall be submitted in advance by the Permittees to the City's City Engineer for approval prior to beginning the construction process. The plans must show the depth, ground clearance (16 -feet minimum clearance), and location of the proposed construction and distance from existing water, storm water, wastewater, and gas lines. The Permittees shall also comply with any other laws, rules, regulations, and ordinances applicable to construction in the City and in the public right -of -way, including obtaining all required permits. F. Prior to the start of any approved construction, Permittees shall require every contractor and subcontractor to provide a Certificate of Insurance reflecting insurance in coverage amounts as set forth in Exhibit "C." Additionally, Permittees shall require their contractors and subcontractors to indemnify the City, its officers, officials, employees, representatives, agents, licensees, and invitees in the same manner that Permittees have provided indemnification to the City pursuant to this Agreement. G. Permittees shall provide all necessary and proper safety devices so as to prevent injuries or accidents in the Use Privilege Area, in as much as possible. H. At least 48 hours prior to beginning any approved construction, Permittees shall contact 1- 800 - DIG -TESS and the Lone Star Notification Center (1 -800- 669- 8344), and any other required agency or authority. Additionally, at least 48 hours prior to beginning any approved construction, Permittees shall give notice and verify depth and location of communication lines or communication fiber optic cables, whichever is applicable, to the following: UPA% 20Gates% 20Super% 20Comm%20Properties %20vFinai[1] Page 2 of 8 • City Utility Departments, including Water, Storm water, Wastewater and Gas; • American Electric Power (AEP); • American Telephone and Telegraph (AT &T); • CenturyTel; • Time Warner; • Grande Communications; and • Any and all other certified telecommunications providers. A City inspector may request a utility line be uncovered to verity its depth or location. I. Any construction process and use of the Use Privilege Area by Permittees shall not interfere with the construction, installation, operation, maintenance, repair, removal or replacement by the City or any of its agents, contractors, or franchisees of any existing or future proposed sidewalks, utility lines, or other uses. If the City or any franchisee with utilities currently located in said public right -of -way needs access to the right -of -way, Permittees shall pay for removing or relocating the Aerial Fiber Optic Cable in the Use Privilege Area to allow access to utility lines for maintenance, repair, removal, or replacement of the utility lines. The Permittees shall repair the Use Privilege Area to its original condition or cease to use the Use Privilege Area, at which time this AGREEMENT terminates immediately. J. Traffic Engineer requirements pertaining to this Agreement, if applicable in context: 1 At least 48 hours prior to commencing approved construction, the Permittees shall file and obtain approval for a traffic control plan with the City's Traffic Engineer. No closure or barricading of a public right -of -way or any portion of a public right -of -way may occur before approval of the traffic control plan and, if applicable, approval of a detour or barricade plan has been obtained from the City's Traffic Engineer. 2. Should Permittees require a trench, pit, or similar excavation be dug during approved construction, the Permittees shall file and obtain approval for barricading said trench, pit, or excavation in accordance with the Texas Manual on Uniform Traffic Control Devices from the City's Traffic Engineer. [See paragraph "P" of this Agreement for additional requirements regarding trenches, pits and similar excavations.] K. If, as determined by the City Manager, damage occurs to any gas, water, storm water, or wastewater line, Permittees shall allow the City immediate access to the Use Privilege Area to perform an assessment, make repairs, or take any other action deemed necessary by the City. Determination of the extent of damage and repairs necessary to restore the utility line(s) shall be made by the City Manager. All costs of the City associated with said damage U PA% 20Gates% 205uper %20Comm %20Properties %20vFinai[1] Page 3 of 8 and repair, including labor and materials, shall be paid by Permittees within 30 days of the City's invoice. L. Should construction become necessary near existing water or wastewater lines, Permittees shall take every precaution not to disturb the soil surrounding any such lines, including all thrust blocks. M. If any approved work is conducted near any existing water main, it shall be done under the inspection of a City inspector at a daily rate of three- hundred ten dollars and thirty -five cents ($310.35) for each day spent inspecting construction, installation, maintenance, repair, removal, or replacement in the Use Privilege Area. A half-day, being four hours or more of work time by the City inspector, constitutes a whole working day for purposes of calculation. Any time in excess of eight hours a day, or on Saturday, Sunday or holidays, shall be calculated at a daily rate of fifty -eight dollars and eighteen cents ($58.18) per hour. Any assessed inspection fees shall be paid by the Permittees to the appropriate City department within 30 days of the City's invoice. These amounts will be adjusted annually each year on August 1 to reflect any pay increases that may be attributable to the rates charged. N. At any and all times, Permittees shall be responsible for the repair and maintenance of the Aerial Fiber Optic Cable and Use Privilege Area, including any costs associated with damage occurring due to natural weather elements/occurrences or man -made forces. Should damage occur to the Aerial Fiber Optic Cable or Use Privilege Area, regardless of the type of damage, Permittees shall repair the damage within 30 days of notice by the City. Failure to so repair terminates this Agreement immediately without any further action needed on the part of the City. O. Permittees shall repair, or cause to be repaired, any damage to driveways, culverts, head walls, landscaping, sidewalks, curbs, gutters, and any other structure, public or private, resulting from or caused by reason of construction, installation, maintenance, repair, removal, replacement or operation of the Aerial Fiber Optic Cable and Use Privilege Area. P. If a trench, pit, or other excavation is required during approved construction, no trenches, pits, or other excavation, other than bore pits, shall be left open overnight, except as specifically authorized by the City's Director of Development Services and City's Engineer. Bore pits are not allowed open for a period of longer than 14 calendar days, regardless of location. All trenches, pits, or other excavations, other than bore pits, shall be backfilled by the Permittees promptly and in accordance with current City standards and specifications and as per the City inspector's request. All trenches, pits, and other excavations, including bore pits, shall be barricaded by the Permittees in accordance with the Texas Manual on Uniform Traffic Control Devices and as approved by the City's Traffic Engineer. [See paragraph "J.2." for additional requirements pertaining to trenches, pits, and other excavations.] UPA% 20Gates% 20Super %20Comm %20Properties %20vFinai[1] Page 4 of 8 Q. If backfilling becomes necessary, all backfill, specifically including that in and around existing utilities, shall be made by Permittees according to current City standards and specifications and as required by a City inspector. R. Use of the Aerial Fiber Optic Cable authorized by this Agreement is strictly limited to serving Buildings 1 and 2 in the Use Privilege Area. Permittees shall not provide, nor permit anyone else to provide or receive, service through said Aerial Fiber Optic Cable or at any facilities within the City other than the buildings specifically included in this Agreement without first obtaining a franchise from the City. S. INDEMNIFICATION. PERMITTEES, THEIR RESPECTIVE OFFICERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, AND LICENSEES, (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SUBPARAGRAPH AS "INDEMNITORS ") SHALL FULLY INDEMNIFY, SAVE, AND HOLD HARMLESS THE CITY OF CORPUS CHRISTI, ITS OFFICERS, OFFICIALS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSEES, AND INVITEES, ( "INDEMNITEES "), AGAINST ANY AND ALL LIABILITY, DAMAGE, LOSS, CLAIMS, DEMANDS, AND ACTIONS OF ANY NATURE WHATSOEVER ON ACCOUNT OF PERSONAL INJURIES, (INCLUDING, WITHOUT LIMITATION ON THE FOREGOING, WORKERS' COMPENSATION AND DEATH CLAIMS), PROPERTY LOSS, OR DAMAGE OF ANY KIND WHATSOEVER, WHICH ARISE OUT OF OR ARE IN ANY MANNER CONNECTED WITH, OR ARE CLAIMED TO ARISE OUT OF OR BE IN ANY MANNER CONNECTED WITH, THE USE OF THE PROPERTY UNDER THIS AGREEMENT, INCLUDING SAID INJURY, LOSS OR DAMAGE CAUSED BY THE CONCURRENT OR CONTRIBUTORY NEGLIGENCE OF THE INDEMNITEES OR ANY OF THEM INDIVIDUALLY. INDEMNITORS SHALL, AT INDEMNITORS' OWN EXPENSE, INVESTIGATE ALL CLAIMS AND DEMANDS, ATTEND TO THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND ALL ACTIONS BASED THEREON WITH COUNSEL SATISFACTORY TO INDEMNITEES, AND PAY ALL CHARGES OF ATTORNEYS AND ALL OTHER COSTS AND EXPENSES OF ANY KIND ARISING FROM ANY OF SAID LIABILITY, DAMAGE, LOSS, CLAIMS, DEMANDS, OR ACTIONS. UPA% 20Gates% 205uper %20Comm %20Properties %20vFinar[1] Page 5 of 8 T. All signatories signing this Agreement warrant and guarantee that they have the authority to act on behalf of the entity represented and make this Agreement binding and enforceable by their signatures. U. Unless otherwise stated in this Agreement, any notice required or permitted to be given under this Agreement must be in writing and sent by certified mail, return receipt requested to the following addresses: If to Permittee No. 1: If to Permittee No. 2: If to the City: Super Commercial Properties, LLC 4531 Ayers Street, Suite 201 Corpus Christi, TX 78415 Gates E &S North America, Inc. 134 44th Street Corpus Christi, TX 78405 City of Corpus Christi Attn: Director, Development Services Department P. O. Box 9277 Corpus Christi, TX 78469 -9277 Any party shall, by notice to the others in accordance with the provisions of this paragraph, specify a different address or addressee for notice purposes within 10 days of any address change. V. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created pursuant to this Agreement are performable in Nueces County, Texas. Venue for all actions arising from, out of, or related to this Agreement must be brought in Nueces County, Texas. W. The Permittees further agree, in compliance with the City of Corpus Christi Ordinance No. 17112, to complete, as part of this Agreement, the "Disclosure of Interests" form attached to this Agreement as Exhibit "D." Completed versions of Exhibit "D" by Permittees No. 1 and No. 2 form a part of this Agreement and are incorporated by reference into this Agreement as if set out here in their entireties. X. This instrument, including exhibits, constitutes the entire agreement between the City and the Permittees, and no prior written, oral, or contemporaneous promises, warranties, or representations shall be binding upon any parties. This Agreement may only be amended by written instrument signed by the City and Permittees and approved as required by City law. EXECUTED IN TRIPLICATE this / 1 day of 06:43 UPA% 20Gates% 205uper %20Comm %20Properties %20vFinai[1] Page 6 of 8 ACCEPTED BY: JAA.411 Zorac j Su'p -'1177 !1. ge Supe emmer al Properties, LLC ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on D40 -i0QY , , 2012, by Zorach J. Super, Manager of Super Commercial Properties, LLC, a Texas limited liability company, on behalf of said company. kio SA, ACCEPTED BY: MARY RAMIREZ NOTARY PUBLIC State of Texas Comm. E74). 0811312016 C4,0..xtc,D(1,4 Eric McDonald, General Manager Gates E &S North America, Inc. STATE OFC6 § COUNTY OF nu& cc, § Nota ACKNOWLEDGMENT This instrument was acknowledged before me on nature Oci166,7 a , 2012, by Eric McDonald, General Manager, Gates E &S North America, Inc., a Colorado corporation, on behalf of said corporation. U PA% 20Gates% 20Super %20Comm %20Properties %20vFina I[1] otary Public s Signature Page 7 of 8 ATTEST: Armando Chapa City Secretary CITY OF CORPUS CHRISTI Ro ald L. Olson Cit Man.•er APPROVED AS TO LEGAL FORM: aef. !" / , 2012 izabeth Hun ley Assistant City Atto y for the City Attorney rihi sl�� tv(0 4. CINIKIL Z Lu UPA% 20Gates% 20Super% 20Comm %20Properties %20vFinal[1] Page 8 of 8 !iIiIIiIIMIiilIIIIJif III1IIIJIIIIIIII1IIIE maw k r Jr aim imAik AGNES STREET PLAN VIEW USE PRIVILEGE AGREEMENT SUPER COMMERCIAL PROPERTIES, I„LC. and GATES E &S NORTH AMERICA; INC. (123 44th Street and 134 44th Street) EXHIBIT A EXHIBIT C INSURANCE REQUIREMENTS Io PERMITTEE'S LIABILITY INSURANCE A. Permittee must not commence work under this agreement until all insurance required herein has been obtained and such insurance has been approved by the City. Permittee must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Permittee must furnish to the City's Risk Manager, two (2) copies of Certificates of Insurance with applicable policy endorsements, showing the following minimum coverage by insurance company(s) acceptable to the City's Risk Manager. The City must be named as an additional insured for the General Liability policy and a blanket waiver of subrogation is required on all applicable policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 day written notice of cancellation is required on all certificates or by policy endorsement Bodily Injury and Property Damage Per occurrence - aggregate Commercial General Liability including: 1. Commercial Broad Form 2. Premises — Operations 3. Underground Hazard (if applicable) 4. Products/ Completed Operations Hazard 5. Contractual Liability 6. Independent Contractor 7. Personal Injury/ Advertising Injury 8. $1,000,000 Per Occurrence $2,000,000 Aggregate AUTOMOBILE LIABILITY 1. Owned Vehicles 2. Hired and Non -owned Vehicles $1,000,000 COMBINED SINGLE LIMIT WORKERS' COMPENSATION EMPLOYERS' LIABILITY WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION ACT AND PARAGRAPH 0 OF THIS EXHIBIT $500,000/$500,000 /$500,000 C. In the event of accidents of any kind, Permittee must furnish the Risk Manager with copies of all reports related to this permit of such accidents within 10 days of any accident. II. ADDITIONAL REQUIREMENTS A. Permittee must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and endorsements approved by the Texas Department of Insurance. The coverage provided must be in amounts sufficient to assure that all workers' compensation obligations incurred will be promptly met. B. Permittee's financial integrity is of interest to the City; therefore, subject to Permittee's right to maintain reasonable deductibles in such amounts as are approved by the City, Permittee shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Permittee's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no Tess than A- VII. C. The City shall be entitled, upon request and without expense, to receive copies of the policies, declarations page and all endorsements thereto as they apply to the limits required by the City, and may require the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). Permittee shall be required to comply with any such requests and shall submit a copy of the replacement certificate of insurance to City at the address provided below within 10 days of the requested change. Permittee shall pay any costs incurred resulting from said changes. All notices under this Article shall be given to City at the following address: City of Corpus Christi Attn: Risk Management P.O. Box 9277 Corpus Christi, TX 78469 -9277 (361) 826 -4555- Fax # D. Permittee agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: • Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with the City, with the exception of the workers' compensation and professional liability polices; • Provide for an endorsement that the "other insurance' clause shall not apply to the City of Corpus Christi where the City is an additional insured shown on the policy; • Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of the City; and • Provide thirty (30) calendar days advance written notice directly to City of any suspension, cancellation, non - renewal or material change in coverage, and not less than ten (10) calendar days advance written notice for nonpayment of premium. E. Within five (5) calendar days of a suspension, cancellation, or non - renewal of coverage, Successful Bidder shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Permittee's performance should there be a lapse in coverage at any time during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this agreement. F In addition to any other remedies the City may have upon Permittee's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Permittee to stop work hereunder, and/or withhold any payment(s) which become due to Permittee hereunder until Perin(ttee' demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Permittee may be held responsible for payments of damages to persons or property resulting from Permittee's or its subcontractor's performance of the work covered under this agreement. H. It is agreed that Permittee's insurance shall be deemed primary and non - contributory with respect to any insurance or self insurance carried by the City of Corpus Christi for liability arising out of operations under this agreement. I. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this agreement. Gates E &S North America Use Privilege Agreement (UPA) ins. req. 9/7/12 ds Risk Mgmt.