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HomeMy WebLinkAboutContract 43095S• U CITY SECRETARY RIGHT OF ENTRY AGREEMENT CONTRACT N0• q � 0171L Date: ` , 2012 Parties: (a) tw telecom of texas Ile, a Delaware limited liability company ( "OPERATOR ") with a place of business at 2821 W. 7th Street, Suite 500, Fort Worth, TX 76107 and (b) City of Fort Worth ( "OWNER ") with a place of business at 1509 East Lancaster Avenue, Fort Worth, Texas 76102. (c) OPERATOR and OWNER may individually be referred to as "Party" or collectively as "Parties." 1. The Parties have previously entered into the Master Services Agreement dated 9/19/2011, styled as CSC No. 42303 ( "MSA "), and the TWTC Service Order dated 11/28/2011, styled as CSC No. 42613 (collectively the "Services Agreement "), both of which are incorporated herein by reference. In order for OPERATOR to provide services pursuant to the Services Agreement to the property located at 1509 E Lancaster Avenue, Fort Worth, TX 76102 (the "Facility "), OWNER hereby grants the OPERATOR the right to install, own, repair, operate, remove, improve, and maintain fiber optic and /or coaxial cable facilities and related equipment capable of accommodating voice, data and video transmissions and /or telecommunications service (the "System ") at the Facility. 2. OWNER shall provide reasonable access for ingress, egress, installation, operation, maintenance, inspection, replacement, improvement, removal, and disconnection of the System. OPERATOR will provide OWNER with certificates evidencing the following insurance coverage before OPERATOR begins any construction work on the Premises and will maintain such insurance coverage during the term of this Agreement: (a) Commercial General Liability Insurance with a per occurrence policy limit of $1,000,000 and a general aggregate of $2,000,000. (b) Worker's Compensation insurance: Part I: Workers' Compensation insurance in accordance with applicable state law. Part II: Employer's Liability in the amount of $1,000,000 for each accident, for disease -each employee and for disease - policy limit. (c) Commercial Automobile Liability Insurance: Coverage to include owned, non - owned, leased and hired vehicles and coverage for Property Damage and Bodily Injury. Combined Single Limit: $1,000,000. (d) Umbrella Liability Insurance providing $5,000,000 per occurrence and aggregate coverage limits excess of 2(a), 2(b) Employer's Liability and 2(c) above. (e) Property Coverage: Property insurance on an all -risk, replacement cost basis for Operator's personal property and Equipment. Dc OPERATOR acknowledges that OWNER is a self -fimded governmental flOFTI tAt'Rf' 9u tort la�Ns. and will provide a letter of such self - coverage upon OPERATOR'S re . $ECRETAR" II V RTi�I TY 3. OPERATOR shall install, own, and maintain the S }s m e _F_clit�.ats?ts own expense. All parts of the S }stem shall be and remain the personal prope y A "fOR and may be f removed by OPERATOR at any time. Upon any removal of the System, OPERATOR agrees to repair any damage caused by the removal. OPERATOR will indemnify, and hold OWNER, its principals, officers, directors, and employees harmless from and against any loss, cost, damage and expense of whatever kind (with the exception of special, consequential and incidental damages) arising from the negligent construction, operation, maintenance and repair of OPERATOR's System or from a proven breach of this Agreement by OPERATOR, including, but not limited to, reasonable attorneys' fees and court costs, except to the extent such loss, damage, cost or expense is due to the negligence or willful misconduct of OWNER, or its employees, agents, contractors, or invitees. 4. OWNER agrees that neither it nor anyone acting by or under the authority of OWNER shall tamper with, make alterations to, or remove, or knowingly permit anyone not authorized by OPERATOR to tamper with, make alterations to, or remove, any equipment used in connection with the System except with the prior written consent of OPERATOR. 5. OPERATOR, shall have the right to assign its rights and obligations under this Agreement upon written consent of OWNER, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, OPERATOR may assign its rights and obligations under this Agreement without OWNER's consent to any parent, subsidiary or affiliate or to any entity that acquires all or substantially all the assets or equity of OPERATOR. This Agreement shall be binding upon OWNER and its successors and assigns and any future transferees of the Facility. 6. This Agreement may be amended, changed or modified only by written agreement executed by the Parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the state where the Facility is located. 7. Notices given by one Party to the other Party under this Agreement shall be in writing and shall be (a) delivered personally, (b) delivered by nationally recognized overnight delivery service, or (c) mailed by, certified US mail postage prepaid, return receipt requested to the addresses listed under such Party's signature below, or to such other address as either Party shall designate by proper notice, and shall be deemed effective upon actual receipt or refusal to accept. 8. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument. This Agreement may be executed by facsimile or "PDF" and each party has the right to rely upon a facsimile or "PDF" counterpart of this Agreement signed by the other party to the same extent as if such party had received an original counterpart. 9. Each Party represents and warrants to the other that (a) it has full power and authority to enter into and perform this Agreement in accordance with its terms, (b) the person signing this Agreement on behalf of each Party has been properly authorized and empowered to enter into this Agreement, and (c) it is an entity, duly organized, validly existing and in good standing under the laws of the state of its origin. 10. This Agreement is the joint work product of the Parties. Accordingly, in the event of ambiguity, no presumption shall be imposed against either Party by reason of document preparation. 11. This Agreement, plus any documents incorporated herein, constitute the entire agreement between the Parties with respect to the subject matter referred to herein and supersedes rior or contemporaneous agreements, whether written or oral. Rn (SIGNATURES ON FOLLOWING PAGE] OFFICIAL. RECD I CITY SECRET ARY FT. WORTI'1. Executed on this K day of (A , 2012. OWNER City of Fort Worth B: ��� QJA—I Susan Alanis, Assistant City Manager Printed Name /Title OPERATOR tw telecom of texas llc By: tw telecom holdings inc., its sol member By: -� Kevin Wooldridge, Vice President — Real Estate Name /Title Date: -tin I Y g"- F0,4j` 4a `Notice Address: p XY v° 0o0 1�Y w telecom Attest: p moo % 55 Valley View Lane, Suite 110 rl 'moo $ allas, TX 75244 0 By: O o° n: Real Estate Coordinator Mary J. Kayser 0,0 nn° ��► City Secretary �aA oo. - _.00 * 4vith copy to: `Q�n!'rX��p' tw telecom 14q�Qp� 10475 Park Meadows Drive, Approved to Form and Legality: Littleton, CO 80124 Attn: Sr. VP & Deputy General Counsel B. Maleshia B. FalIfner Assistant City Attorney (�Io rlt�► C % uu�.lL 7 OFFICIAL RECORD CITY SECRETARY FT. WORTIJ, TX