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:
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• 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.]
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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.
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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
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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
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4.
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UPA% 20Gates% 20Super% 20Comm %20Properties %20vFinal[1] Page 8 of 8
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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.