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HomeMy WebLinkAboutContract 57421 DocuSign Envelope ID:OF48DO79-F14E-4F2A-BC73-5B9F339B9F56 CSC No. 57421 Spectrum COMMERCIAL ACCOUNT RIGHT OF ENTRY AGREEMENT This Commercial Account Right of Entry Agreement (hereinafter the "Agreement") is by and between Oty of Fort Worth (hereinafter the"Owner"),with a mailing address of 201 American Concourse, Fort Worth, Texas 76106, and owning real estate located at 201 AMERICAN CONCOURSE, FORT WORTH, TEXAS 76106 (hereinafter the"Premses") and Charter Communications Operating, LLC, on behalf of itself and its affiliates, (hereinafter collectively "Charter"), with a mailing address of 12405 Fbwerscourt Drive, St. Louis, MO 63131, Attn: Commercial Contracts Management. This Agreement commences on the later of the execution dates set forth below the signatures (hereinafter the "Effective Date"). Charter and Owner may individually be referred to as a "Party" or collectively as the "Farties". THE PARTIES AGREE AS FOLLOWS: 1. RIGHT OF ENTRY AND EQUIPMENT. a. In consideration of the mutual benefits and obligations set forth herein, Owner hereby grants to Charter a non-exclusive right of entry to the Premises and those buildings of Ow ner located on the Premises (including building roof top(s)) ("Buildings") for the installation, attachment, maintenance, modification, inspection, relocation, repair, upgrade, replacement or removal of any equipment and facilities and other communications accessories, equipment, apparatus, fixtures, hardware, appliances, and appurtenances and any other associated equipment (collectively, "Equipment") to provide any of Charter's services (hereinafter the "Services")to any customers who can receive Services by such Equipment. Owner also hereby authorizes Charter to utilize those conduits and ducts of Ow ner that Ow ner may designate as available for Charter's use (collectively "Conduit"). b. The rights herein granted to Charter shall include use of available powerat the Premses, together with the right to access and use all i) risers in the Buildings, ii) Building entrance facilities, iii) Building utility entrance facilities, iv) utility closets in the Buildings, v)private rights-of-w ay,and vi)other areas on the Premises and Buildings as is reasonably required for the purpose set forth herein. c. All of the above grants and authorizations given by Ow ner are limited to the extent necessary for Charter to provide its Services to the Premses and shall extend to Charter's authorized agents. d. The Equipment is not, and shall not be deemed to be, affixed to or a fixture of the Premises. Charter shall provide to Ow ner the proposed route, specifications and methods to be used for installation of Equipment (collectively, the "Flans") prior to the initial installation of Equipment on the Premises, which approval shall not be unreasonably withheld, conditioned or delayed. If the Flans are attached to this Agreement, Owner's signature to this Agreement shall constitute Owner's approval of the Flans. e. Charter shall, at its sole cost,install the Equipment in accordance with generally accepted industry standards, applicable laws and regulations ("Laws"). Charter shall secure all permits necessary for the construction, installation, operation, or removal of the Equipment. f. If any tenant or Ow ner wishto purchase Services from Charter, such tenant or Owner (each a"Customer") shall enter into a separate service agreement with Charter. g. Charter shall at its sole expense, repair and restore all material physical damage to portions of the Premses damaged by Charter to its condition existing immediately prior to such damage, regardless of w hether such damage occurred during installation, operation, maintenance, or removal activities, normal wear and tear excepted. h. Except for emergency repair work(e.g., Equipment outages, subscriber loss of Service, unsafe Equipment conditions, etc.), Charter will provide at least 24 hours' notice to Owner's on-site management of any maintenance or other work to be conducted at the Premises. Charter shall not unreasonably interfere with any occupant's use and enjoyment of its leased or licensed space at the Premses or w ith the common areas of the Premses. In the case of emergency repair w ork,w hich for the purposes of this Agreement, w ill consist of any repair work necessary to remediate any disruption in Charter's services to a client w ho is a tenant of Owner, Charter may obtain telephonic permission from the property manager, via the contact provided in OFFICIAL RECORD Commercial Right of Entry Agreement v 210712 CONFIDENTIAL Page 1 of 3 ©2021 Charter Communications,all rightsreserved CITY SECRETARY FT.WORTH,TX DocuSign Envelope ID:OF48DO79-F14E-4F2A-BC73-5B9F339B9F56 Spectrumo, Section 4 of this Agreement, prior to accessing the Premises. No matter the type of work to be performed, Charter will be provided an escort by Owner each time Charter needs access to the Premises. 2. REPRESENTATIONS. Owner represents and warrants to Charter that Owner is the legal owner of the Premises, the Building(s), and Conduit located within the Building, however, Owner specifically excludes the AT&T Easement as defined below. The Parties acknowledge that Owner has granted an easement to Southwestern Bell Telephone Company d/b/a AT&T Texas and filed in the deed records of Tarrant County under Document No. D214079938 (the "AT&T Easement") that affects Charter's use of the Premises. The rights granted to Charter under this Agreement may conflict with the AT&T Easement, however, Charter represents to Owner that such necessary permissions for the use of the AT&T Easement have been provided by AT&T. Owner represents and warrants that no other person has any rights in the Premises, Building(s), and/or Conduit, beyond the AT&T Easement,that conflict with Charter's rights under this Agreement. Owner recognizes Charter's right to have exclusive control over any Charter installed Equipment, and Owner will not attach to or use, and will not knowingly allow a third party to attach to or use, Charter's Equipment for any purpose without Charter's prior written consent. In the event the Owner is not executing this Agreement, the undersigned person executing on behalf of Owner represents that the undersigned is Owner's authorized agent and has full authority to bind Owner to the terms and conditions of this Agreement. 3. RESPONSIBILITY TO CONTACT PUBLIC UTILITIES. As may be required by applicable Laws, Charter or its contractors will contact and coordinate with local agencies to physically mark the location of all public utility lines (including, but not limited to,water,electric, phone and sewer lines)that are located in areas in which Charter intends to install the Equipment. Owner shall not interfere with the markings designating such locations until installation is complete. Charter shall be responsible for any damage to public utility lines that are located along the routes or in the location in which Charter installs any Equipment, to the extent such damage arises from Charter's installation activities. 4. RESPONSIBILITY TO MARK PRIVATE UNDERGROUND LINES. If Owner has private underground lines at the Premises that could impact Charter's installation of Equipment,including, but not limited to,sprinklers,sprinkler heads, drains, cables, pipes and wires (collectively "Impacted Private Lines") then both Parties shall, in advance of any underground construction performed by Charter,work together, to the best of their abilities,to research the existence of all Impacted Private Lines (hereinafter"Joint Effort"). In order to facilitate the Joint Effort, Owner provides below its authorized representative (with contact information) regarding the Joint Effort. (Please print clearly) Name: Dakota Shaw Address&/or email: dakota.shaw@fortworthtexas.gov Phone: 817-392-5407 After the Joint Effort, the following shall take place: (i) Charter will make a determination on the need to locate and mark Impacted Private Lines including, but not limited to, the methods and arrangements for same, and (ii) If deemed by Charter necessary to do so, a qualified Charter contractor shall locate (including verification of)and clearly mark all Impacted Private Lines to the extent required by Charter. In the event that Charter damages any clearly marked Impacted Private Lines along the routes or in the location in which Charter installs any Equipment, and only to the extent such damage(s) arise from Charter's Equipment installation activities on the Premises, then Charter shall promptly, within a reasonable period of time, repair said damage(s)to Owner's reasonable satisfaction, after receipt of written notice from Owner describing the scope and extent of such damage(s),which written notice, if needed,shall be provided to Charter no later than thirty(30)days after Charter's initial installation of Equipment. 5. INSURANCE. Charter shall maintain, at Charter's sole cost and expense, (i) commercial general liability insurance including Property Damage, Bodily Injury and contractual liability insurance subject to standard insurance carrier exclusions, in the amount of $2,000,000 each occurrence covering (a) to the extent caused by acts of Charter, damages to the Premises and (b)the operations of Charter at the Premises, (ii)Auto Liability, including Bodily Injury and property damage in the amount of$1,000,000 each accident, and (iii)worker's compensation insurance to comply with the applicable laws of the State the Premises is located in. Owner shall be listed as additional insured under blanket endorsement. 6. TERM. The term of this Agreement commences on the Effective Date and shall remain in full force and effect until the later of: (i)the date that is five (5)years after the Effective Date,or(ii)the date that is 6 months after the date that Charter is no longer providing Services to any Customer on the Premises (the "Term"). Should any Customer on the Premises request Services during such 6-month period referenced above,the Agreement shall continue until it expires or is terminated in accordance with the terms of this Agreement. Charter may, within 90 days after the expiration or Commercial Right of Entry Agreement v 210712 CONFIDENTIAL Page 2 of 4 ©2021 Charter Communications,all rights reserved DocuSign Envelope ID:OF48DO79-F14E-4F2A-BC73-5B9F339B9F56 Spectrumo, termination of this Agreement, elect to remove Charter's Equipment or abandon in-place all or certain portions of Charter's Equipment at the Premises which, upon abandonment,shall be deemed the property of the Owner,with lien free title thereto passing immediately to Owner at no cost to Owner. 7. ASSIGNMENT. This Agreement may be freely assigned by Owner, provided that the assignee agrees in writing to be bound by all of the terms and conditions hereof. This Agreement may not be assigned by Charter without prior written consent from Owner, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Charter may,without obtaining Owner's prior consent, assign this Agreement to(a)any parent, affiliate, or subsidiary of Charter, (b)any partnership in which Charter has a controlling interest, or(c)any entity which succeeds to all or substantially all of Charter's assets or ownership interests, or the cable system operated by Charter (or its affiliate or subsidiary) which serves the municipality in which the Premises is located, whether by merger, sale or otherwise, provided that such successor also succeeds to the cable television franchise agreement held by Charter (or its affiliate or subsidiary) for the municipality in which the Premises is located. This Agreement shall be binding upon and inure to the benefit of the Parties hereto,their successors, legal representatives and assigns. 8. LIMITATION OF LIABILITY. CHARTER MAKES NO REPRESENTATIONS OR WARRANTIES--EXPRESS OR IMPLIED-- REGARDING THE EQUIPMENT OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL CHARTER OR OWNER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. 9. INDEMNIFICATION. Charter agrees to indemnify, defend and hold Owner harmless from and against any and all damages, liabilities, penalties,fines,costs and expenses(including reasonable attorneys'fees)arising from third party claims for bodily injury, including death, to persons or damage to tangible property caused by or resulting from Charter's acts or omissions in the performance of any work, maintenance or operation of its Equipment, except to the extent caused by the negligence or willful misconduct of Owner. 10. Intentionally Deleted. 11. ENTIRE AGREEMENT;AMENDMENTS. This Agreement constitutes the entire agreement between the Parties with respect to, and supersedes all prior agreements, promises and understandings, whether oral or written,with respect to, the subject matter contained herein. This Agreement shall not be modified, amended, supplemented or revised, except by a written document signed by both Parties. 12. SEVERABILITY. If any term or provision of this Agreement is determined to be invalid, illegal or unenforceable in whole or in part,such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable term or provision had not been contained herein. 13. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 14. NO WAIVER. Neither the failure of either Party to exercise any power given such Party hereunder or to insist upon strict compliance by the other Party with its obligations hereunder, nor any custom or practice of the Parties at variance with the terms hereof shall constitute a waiver of either Party's right to demand exact compliance with the terms hereof. 15. COUNTERPARTS AND ELECTRONIC SIGNATURES.This Agreement may be signed in several counterparts,each of which will be fully effective as an original and all of which together will constitute one and the same instrument. Signatures to this Agreement may be transmitted by electronic mail, and signatures so transmitted will be deemed the equivalent of delivery of an original signature. (Signature Page to Follow) Commercial Right of Entry Agreement v 210712 CONFIDENTIAL Page 3 of 4 C 2021 Charter Communications,all rights reserved DocuSign Envelope ID:OF48DO79-F14E-4F2A-BC73-5B9F339B9F56 Spectrumo, This Agreement shall be construed to be in accordance with the laws of the State where the Premises is located. CHARTER: OWNER:(type in Owner/Legal Entity Name below) Charter Communications Operating LLC City of Fort Worth By: a�rzx@e (nications, Inc., its Manager By: "" 1 By: Dana Burghd off(Apr 18,2022'18:52 CDT) (Signature) (Signature) Printed Name:Ana Diaz Printed Name: Dana Burghdoff Title: Director, Enterprise Service Delivery Title: Assistant City Manager Date: 04/14/2022 1 4:56 PM Date: p CDT A r 18, 2022 Email: debimorthington(a�charter.com Email: Dana.Burghdoff@fortworthtexas.gov Approval Recommended: Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance By: and reporting requirements. Name: Roger Venables Title: Aviation Department Director By: Approved as to Form and Legality: Name: Barbara Goodwin Title: Aviation Department Property Manager o�vvnn apF*ORr O� By: 'vim City Secretary: P� oo d Name: Thomas R. Hansen c~° '0 d dvo S=d Title: Assistant City Attorney o,°° a off° p Tanneile 5. Goo�lclll aa�nExASaba By: Jannette S.Goodall(Apr 19,2022 08:08 CDT) Contract Authorization: Name: Jannette S. Goodall M&C: N/A Title: City Secretary AT OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Commercial Right of Entry Agreement v 210712 CONFIDENTIAL Page 4 of 4 ©2021 Charter Communications,all rights reserved ,