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R-2013-185 2013-11-11RESOLUTION NO. R2013-185 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO A LICENSE AGREEMENT WITH THE GULF COAST WATER AUTHORITY. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain License Agreement by and between the City of Pearland and the Gulf Coast Water Authority, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest said License Agreement with the Gulf Coast Water Authority. PASSED, APPROVED and ADOPTED this the 11th day of November, A.D., 2013. ATTEST: APPROVED AS TO FORM: o-� DARRIN M. COKER CITY ATTORNEY TOM REID MAYOR RESOLUTION NO. R2013-185 Exhibit "A" LICENSE AGREEMENT This License Agreement ("License") is between the CITY OF PEARLAND, TEXAS ("City") and GULF COAST WATER AUTHORITY ("GCWA") Recitals: GCWA has requested and the City has agreed to allow GCWA by license to use the City's water tank site located in the City of Pearland, Brazoria County, Texas, to operate a SCADA radio relay station facility. Agreement: In consideration of the promises of each, the City and GCWA agree as follows: A. Definitions. In this License: Authorized Personnel means employees, engineers, technicians or agents of GCWA (or persons or entities under direct supervision thereof) who either: (1) carry an identification badge identifying them as employees or agents of GCWA; or (2) are employees, engineers, agents or technicians acting on GCWA's behalf. City means the City of Pearland, a municipal corporation. Effective Date (of this License) means the latest date of the dates this License is signed by the City and by GCWA. License means the rights granted to and obligations imposed upon GCWA under this License. Licensed Premises means the real property owned by the City as described in Exhibit A, attached to and incorporated to this License by reference, together with the space on the Water Tank being licensed to GCWA by City. GCWA means Gulf Coast Water Authority. Water Tank means the City's elevated potable water storage tank located on the Licensed Premises. SCADA means supervisory control and data acquisition a type of industrial control system (ICS) Facility as more accurately described in Exhibit A attached hereto. B. USE OF LICENSED PREMISES. 1. The Licensed Premises are licensed to GCWA as a site for GCWA to erect, construct, operate, maintain, repair, and replace a SCADA Facility. 2. GCWA will comply with any reasonable rules and regulations related to City's compliance with state laws and regulations. 3. If GCWA places any item on the Licensed Premises that is not authorized under this License and does not remove such item after 30 days written notice to GCWA, then the City may remove the item without liability to GCWA for damage caused by the City's removal. 4. GCWA and its Authorized Personnel may access the Licensed Premises for the purpose of maintenance, repair, replacement, and removal of the SCADA Facility at any time, subject to following: (a) The City's reasonable security requirements; (b) If GCWA requires access outside of the City's normal business hours, GCWA will pay the City the reasonable costs it incurs in providing access; (c) GCWA will use its best efforts to contact the City no less than two (2) hours prior to accessing the Licensed Premises, (d) GCWA will conduct its normal maintenance activities on the Licensed Premises during the City's normal business hours; and (e) GCWA will furnish the City with a key or the combination of any lock securing the site of GCWA's equipment so the City may inspect GCWA's equipment at any time; provided, however, that in no event will City, its employees, officers, or agents remove, relocate, modify, alter or otherwise tamper with GCWA's equipment. 5. All facilities GCWA provides and installs on the Licensed Premises remain the property of GCWA and GCWA shall remove the same at any time during or within 90 days after the termination of this License. 6. GCWA will abide by all federal, state and local rules and regulations in the operation of the SCADA Facility, including acquiring required licenses and permits. 7. The City's grant to GCWA is a non-exclusive License. The City may use the Licensed Premises or allow any other person to use the Licensed Premises, other than GCWA's equipment compound, for any purpose that does not interfere with GCWA's rights granted under this License. GCWA LICENSE AGREEMENT/Page 2 2 8. GCWA may erect and operate the SCADA Facility in accordance with Exhibit A. If GCWA seeks to expand the SCADA Facility authorized herein, it must first pay for an evaluation carried out by a qualified professional, selected by the City, demonstrating that (i) the expansion will not interfere with the existing cellular antennas and that (ii) the City's Water Tank can structurally support the SCADA Facility. The cost of evaluations required by this paragraph must be paid by GCWA within thirty (30) days after receiving written notice of the cost. 9. All modifications or improvements to the Licensed Premises for GCWA's benefit shall be at GCWA's expense and such modifications or improvements shall be maintained in a good state of repair. 10. GCWA shall not interfere with the City's use of the Licensed Premises or the Water Tank and agrees to cease all such actions that interfere with the City's use thereof no later than three (3) days after written receiving written notice of the interference from the City. 11. Upon the City's prior request, GCWA will remove or relocate all or part of the SCADA Facility from the Licensed Premises as may be necessary for the City to repair, rehabilitate, replace, relocate, or maintain the Water Tower. The City will schedule regular, non -emergency maintenance, repair, or repainting as far in advance as is reasonably possible and give GCWA at least 120 days advance written notice prior to the maintenance, repair, or repainting to allow GCWA to temporarily remove or relocate one or more of its antennae and equipment. The City will use reasonable efforts to enable GCWA to install and operate a temporary site on the Licensed Premises which is suitable as a site for GCWA until the equipment affected by the temporary relocation can be reinstalled at the original location. C. TERM. This License begins on the Effective Date and ends at 11:59 p.m. on the day immediately preceding the (_`h) anniversary of that date (the "Primary Term"). The parties may extend this License for up to five successive five-year periods (the "Renewal Periods") as follows: (1) At least 18 months before the expiration of the Primary Term or a Renewal Period, as the case may be, GCWA will notify the City in writing, in accordance with Section M, below, if it wishes to extend the License for one Renewal Period. (2) If the City notifies GCWA in writing, by registered or certified mail, within 60 days of receiving GCWA's request, that the City will not extend the License as requested, the License terminates at the end of current Primary Term or Renewal Period, as the case may be. (3) If the City fails to notify GCWA in writing, in accordance with Section M, below, within 60 days of receiving GCWA's request to extend, that the City will not extend the License as requested, the License will automatically extend for one Renewal Period. GCWA LICENSE AGREEMENT/Page 3 2 D. UTILITIES. GCWA will, at its own expense, contract with a third party provider for any electric, telephone, telecommunications, or similar utility services, and will be responsible for the installation of any meters or associated equipment needed to serve its SCADA Facilities on the Licensed Premises. GCWA will obtain the City's prior approval in writing of the location of any meters, lines, or associated electrical or utility equipment to be located on the Licensed Premises that is not shown on Exhibit A. E. COMPLIANCE WITH LAWS. GCWA will, at its expense, conduct all operations on the Licensed Premises in compliance with all laws, ordinances, rules, regulations, orders or directives of any government authority, and will not commit or allow to be committed any public or private nuisance thereon. F. WARRANTY. The City warrants that its title to the Licensed Premises is sufficient for the City to grant this License to GCWA for the purposes contained in this License. The City also warrants to GCWA that this License includes access to the Licensed Premises by GCWA, and that GCWA may quietly enjoy the Licensed Premises without disturbance except as provided for in this License. H. TERMINATION WITHOUT DEFAULT. 1. GCWA may terminate this License at any time by giving 30 days written notice to the City of its intention to do so. 2. The City may terminate this License at any time by giving GCWA at least 120 days prior written notice of termination, if the City decides to abandon, remove, relocate, or discontinues use of the Water Tower, or replaces the Water Tower with another Water Tower. If the existing Water Tower is destroyed by fire, tornado, hurricane, flood, wind, or other natural causes, and the City decides not to replace the Water Tower, this License terminates on the date of destruction and the City may retain any license fees paid prior to the date of destruction. If the City chooses to replace the destroyed Water Tower, the City will notify GCWA of the estimated date of replacement. If GCWA does not terminate the License by giving notice to the City prior to the date the Water Tower is replaced, this License will remain in effect. I. TERMINATION FOR DEFAULT. 1. Either party may terminate this License as provided in this paragraph if the other party fails to comply with a provision of this License. The party claiming a default by the other party will give written notice specifying the default and what must be done to correct the default. If the party receiving the notice fails to correct the default within 30 days of receiving the notice of default, the other party may terminate this License by providing notice of termination to the other party. GCWA LICENSE AGREEMENT/Page 4 2 2. If a claimed default cannot reasonably be cured within 30 days, the other party will not be deemed to be in default if the other party promptly attempts to cure the default upon receiving notice and thereafter cures the default within 60 days from receipt of the notice. 3. Notwithstanding anything to the contrary in this License, GCWA's cure period for any monetary default will be thirty (30) days after its receipt of written notice of such default from City. J. ASSIGNABILITY. GCWA may not assign the License without the prior written consent of the City. K. REMOVAL OF PROPERTY. GCWA will, within 90 days after the termination of this License: 1. Dismantle and remove all property and improvements placed by GCWA on the Licensed Premises or land adjacent to the Licensed Premises. 2. Restore the Licensed Premises to substantially their original condition as of the Effective Date, reasonable wear and tear excepted. 3. Repair any damage to the Licensed Premises. L. INSURANCE AND INDEMNITY. 1. GCWA will provide insurance in compliance with the provisions of Exhibit B. 2. GCWA will indemnify and hold harmless the City from and against any and all claims, suits, causes of action and damages of any kind or nature, arising from, or relating to the use of the site by GCWA, its employees or agents, unless such claim or damage is the result of the act, omission or negligence of City, its employees, officers, agents or contractors. IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERICAL LOSS, LOST PROFITS OR SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULLEST EXTENT SUCH MAY BE DISCLAIMED BY LAW. M. NOTICES. All notices pertaining to this License are considered as delivered when mailed to the following address registered, certified or regular mail. Either party may from time to time designate a different address by written notice to the other party. City: City of Pearland 3519 Liberty Drive Pearland, Texas 77581 GCWA LICENSE AGREEMENT/Page 5 2 Copy to: GCWA: Attn: City Manager Director of Public Works 3519 Liberty drive Pearland, Texas 77581 General Manager Gulf Coast Water Authority 3630 FM 1765 Texas City, TX 77591 N. MISCELLANEOUS 1. This License is binding upon and will inure to the benefit of the parties hereto and their respective heirs, successors, assigns and legal representatives (where assignment is allowed). 2. This License is construed and governed by the laws of the State of Texas. Venue for any action involving this License may only be brought in Brazoria County. 3. This License may be amended only in writing, executed by both parties hereto or their permitted transferees. 4. If any provision of this License is held to be invalid, the invalidity does not affect any other provision of this License. 5. The headings of the paragraphs of this License are for the guidance and convenience of reference only and do not affect any of the provisions hereof. 6. This License may be executed in any number of counterparts, each of which will be considered an original instrument, and all of which together will constitute one and the same instrument. 7. This License contains the entire agreement between the parties and supersedes all other negotiations and agreements, whether written or oral, regarding the subject matter hereof. By: , City Manager GCWA LICENSE AGREEMENT/Page 6 2 ATTEST: ATTEST: ary Date: GULF COAST WATER AUTHORITY Q, -e By: Signature Printed Ivan Langford Title: General Manager Date: 11 /1y / 2c 13 Exhibits: A - Licensed Premises and Antenna Facility ( pages) B - GCWA Insurance Requirements GCWA LICENSE AGREEMENT/Page 7 PHILLIPS °ubiic TEXAS 'xp. 02/20/2016 2 Exhibit A- Licensed Premises and SCADA Facility (to be attached) GCWA LICENSE AGREEMENT/Page 8 Exhibit B. GCWA shall provide and maintain the minimum insurance coverages set forth below during the term of its agreement with the City. 1. Commercial General Liability insurance at minimum combined single limits of $1,000,000_per-occurrence and $2,000,000 general aggregate for bodily injury and property damage, which coverage shall include products/completed operations ($1,000,000 products/ completed operations aggregate), and XCU (Explosion, Collapse, Underground) hazards. Coverage must be written on an occurrence form. Contractual Liability in the policy of Commercial General Liability must be maintained covering T -Mobile's obligations concerning bodily injury and property damage as contained in the License Agreement between T -Mobile and the City. The general aggregate limit must be at least two (2) times the each -occurrence limit. 2. Workers Compensation insurance at statutory limits, including Employers Liability coverage a minimum limits of $500,000 each -occurrence each accident/$500,000 by disease each-occurrence/$500,000 by disease aggregate. 3. Commercial Automobile Liability insurance at minimum combined single limits of $1,000,000_per-occurrence for bodily injury and property damage, including owned, non -owned, and hired car coverage. Any Subcontractor(s) hired by GCWA shall maintain insurance coverage equal to that required of T -Mobile. It is the responsibility of GCWA to assure compliance with this provision. The City of Pearland accepts no responsibility arising from the conduct, or lack of conduct, of the Subcontractor. A Comprehensive General Liability insurance form may be used in lieu of a Commercial General Liability insurance form. In this event, coverage must be written on an occurrence basis, at limits of $1,000,000 each -occurrence, combined single limit, and coverage must include a broad form Comprehensive General Liability Endorsement, products/completed operations, XCU hazards, and contractual liability. With reference to the foregoing insurance requirement, GCWA shall specifically endorse applicable insurance policies as follows: 1. The City of Pearland shall be named as an additional insured with respect to General Liability and Automobile Liability. 2. All liability policies shall contain no cross liability exclusions or insured versus insured restrictions. 3. A waiver of subrogation in favor of The City of Pearland shall be contained in the Workers Compensation and all liability policies. GCWA LICENSE AGREEMENT/Page 9 4. GCWA will immediately notify The City of Pearland of any reduction in the insurance coverage that affects this License. 5. All insurance policies shall be endorsed to the effect that The City of Pearland will receive at least thirty- (30) days' notice prior to cancellation or non -renewal of the insurance. 6. Required limits may be satisfied by any combination of primary and umbrella liability insurances. 7. Insurance must be purchased from insurers with an AM BEST rating of A minus or better. All insurance must be written on forms filed with and approved by the Texas Department of Insurance. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and shall contain provisions representing and warranting the following: 1. Sets forth all endorsements and insurance coverages according to requirements and instructions contained herein. 2. Shall specifically set forth the notice -of -cancellation or termination provisions to The City of Pearland. A valid certificate of insurance verifying each of the coverages required above shall be issued directly to the City of Pearland within ten (10) business days after the Effective Date. The certificate of insurance shall be sent to: City of Pearland Finance / Purchasing 3519 Liberty Drive Pearland, TX 77581 GCWA LICENSE AGREEMENT/Page 10