COUNCIL COMMUNICATION

DATE:

04-21-03

 

 

SUBJECT: FINAL READING ORDINANCE 2003-0-98

AUTHORIZING THE CITY MANAGER TO GRANT A LICENSE TO GRANDE RIVER COMMUNICATIONS LLP, FOR THE USE OF A TELECOMMUNICATIONS PVC CONDUIT LOCATED AT THE JUAREZ-LINCOLN INTERNATIONAL BRIDGE AND THE USE OF 47 LINEAR FEET OF CITY RIGHT OF WAY FROM THE RIVER BANK TO THE 500 BLOCK OF ITURBIDE STREET, LAREDO, WEBB COUNTY, TEXAS.  LICENSE TERM IS FIVE (5) YEARS COMMENCING ON APRIL 21, 2003 AND ENDING MAY 20, 2008.  ANNUAL RENT SHALL START AT $15,194.00 WITH A FIVE PERCENT (5%) INCREASE EACH ANNIVERSARY DATE PLUS $5.00 PER LINEAL FOOT PER YEAR FOR THE USE OF THE RIGHT OF WAY; PROVIDING FOR EFFECTIVE DATE.

INITIATED BY:

Larry Dovalina, City Manager

 

 

STAFF SOURCE:

Larry Dovalina, City Manager

 

PREVIOUS COUNCIL ACTION:  Introductory reading approved at the April 7, 2003 meeting.

 

 

BACKGROUND:              

 

On October 27, 1997, Grande River Communications, Inc. was granted a five year license for the use of a telecommunications PVC conduit located at the Juarez-Lincoln International Bridge and the use of 47 linear feet of city right of way.  Said license will expire October 26, 2002.  A new license agreement has been agreed upon by the City of Laredo and Grande River Communications LLP.  The starting rent has been increased by 25% from the last rent amount paid in the amount of $12,155.00.  The right of way fee has been increased from $4.00 to $5.00 per linear foot.

 

The Telecommunications Commission at its October 9, 2002 meeting approved a recommendation to forward to City Council for final approval.

 

 

 

 

 

FINANCIAL IMPACT: The city will receive an annual rent of $15,194.00 with a 5% increase each succeeding year plus $235.00 per year for the use of the right of way.  Funds will be deposited to General Fund-Telecommunications License line item 101-0000-311-1060.

 

                                                                              

COMMITTEE RECOMMENDATION: 

The Telecommunications Commission recommends approval.

 

 

STAFF RECOMMENDATION: 

Staff concurs with the recommendation of the Telecommunications Commission.

 

 

 

 

 

 

ORDINANCE  2003-0-98

 

 

 

AUTHORIZING THE CITY MANAGER TO GRANT A LICENSE TO GRANDE RIVER COMMUNICATIOS LLP, FOR THE USE OF A TELECOMMUNICATIONS PVC CONDUIT LOCATED AT THE JUAREZ-LINCOLN INTERNATIONAL BRIDGE AND THE USE OF 47 LINEAR FEET OF CITY RIGHT OF WAY FROM THE RIVER BANK TO THE 500 BLOCK OF ITURBIDE STREET, LAREDO, WEBB COUNTY, TEXAS.

 

1.         LICENSE TERM IS FIVE (5) YEARS COMMENCING ON APRIL 21,  2003 AND ENDING APRIL 20, 2008.

2.         ANNUAL RENT SHALL START AT $15,194.00 WITH A FIVE PERCENT (5%) INCREASE EACH ANNIVERSARY DATE PLUS $5.00 PER LINEAR FOOT PER YEAR FOR THE USE OF THE RIGHT OF WAY; PROVIDING FOR EFFECTIVE DATE.

 

WHEREAS, the Telecommunications Commission recommends that the City Council approve the license between the City of Laredo, as LESSOR and Grande River Communications LP, a Limited Partnership,  as LESSEE, for the use of the Telecommunications PVC conduit located at the Juarez-Lincoln International Bridge and 47 linear feet of right of way from the river bank to the 500 block of Iturbide Street in furtherance of the development of the City of Laredo Telecommunications infrastructure.

 

WHEREAS, the Telecommunications Commission finds that said license is  in the best interest of the City of Laredo and,

 

WHEREAS, the City Council of the City of Laredo is of the same opinion.

 

NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LAREDO THAT:

 

            SECTION 1.  The City Manager be and is hereby authorized to grant a license to Grande River Communications LLP, for the use of a PVC conduit located at the Juarez-Lincoln International Bridge and 47 linear feet of right of way from the river bank to the 500 block of Iturbide Street, Laredo, Webb County, Texas, a copy of which license is attached hereto as Exhibit “A” and incorporated herein as if set out at length for all intents and purposes.

 

            SECTION 2.  This ordinance shall become effective upon the passage hereof.

 

 

 

PASSED BY THE CITY COUNCIL AND APPROVED BY THE MAYOR ON THIS THE 21ST DAY OF APRIL 2003.

 

 

                       

 

_______________________

ELIZABETH G. FLORES

MAYOR

 

 

ATTEST:

 

_______________________

GUSTAVO GUEVARA, JR.

CITY SECRETARY

 

APPROVED AS TO FORM:

 

JAIME L. FLORES

CITY ATTORNEY

 

 

BY:________________________

ALLAN W. MCGRAW

ASSISTANT CITY ATTORNEY

 

 

 

LICENSE

 

THIS LICENSE, made this   21st day of  April , 2003, by and between THE CITY OF LAREDO, TEXAS, a municipal corporation, hereinafter designated the “Landlord” and GRANDE RIVER COMMUNICATIONS LP,  a Limited Partnership, hereinafter designated the “Licensee.”

AGREEMENT

The Landlord, in consideration of the fees to be paid and the covenants and agreements to be performed by the Licensee, does hereby grant non exclusive permission unto the Licensee to use the following described premises and property situated in the Juarez Lincoln Bridge “Bridge” and appurtenant buildings, passages and manholes owned by the Landlord between the City of Laredo, Texas, USA and the International Boundary line between Mexico and the United States of America:

One (1) six inch (6”) duct in a shared duct system in the Juarez Lincoln Bridge infrastructure together with sufficient and suitable right of access thereto and sufficient and suitable space in various slicing chambers thereof; for the installation, maintenance, repair and operation of cables, therein; the location of said duct and other detail being set forth on the Diagram attached hereto as Schedule “A” forming a part thereof.

All parties acknowledge that it shall be the Licensee’s responsibility and liability to independently secure any right of access required by the Licensee in, through or on the Mexico side of the Bridge.

All parties further acknowledge that this license is not a franchise pursuant to Texas Transportation. Code Ann. § 311.071 (West 1996), nor is it a permit to string or bury telecommunications lines in the public rights-of-way.  Any such franchise or permit must be obtained separately from Landlord.

TERM, RENT AND RENEWAL

 

The term of the permission herein granted shall be for a period of five (5) years commencing on the 21st  day of April   2003 and ending on the  20th  day of April, 2008 and the licensee hereby covenants and agrees to pay an annual fee per duct, in advance, upon execution of this instrument and on the same date each succeeding year thereafter, as set forth respectively below:

Year of Term

Annual Fee Per Duct

Right-of-Way Fee

Total Fee

First

$15,194.00   

47’ @ 5.00 = $235.00

$15,429.00

Second

$15,953.70   

47’ @ 5.00 = $235.00

$16,188.70

Third

$16,751.38   

47’ @ 5.00 = $235.00

$16,986.38

Fourth

$17,588.94   

47’ @ 5.00 = $235.00

$17,823.94

Last

$18,468.38   

47’ @ 5.00 = $235.00

$18,703.38

 

The Licensee agrees and convenants that the annual fees payable by it shall be absolutely net to the Landlord and without limiting the generality of the foregoing, acknowledges its liability to pay any federal tax, state tax, or local tax which might be applicable and due including ad valorem taxes, municipal realty taxes or other rates and charges, if any, levied or imposed on or with respect to Licensee’s use of said ducts..

The Licensee covenants and agrees that, without prejudice to any other remedy on behalf of the Landlord, interest on fees and other payments payable by or recoverable from the Licensee at the rate of fifteen percent (15%) per annum if such fees or other payments are not paid or made when due.

EARLY TERMINATION

It is further understood and agreed by and between the parties hereto that the licenses and permissions herein granted may be terminated by either party upon six (6) months written notice to the other and the Licensee shall remove its cables and equipment prior to such termination date; provided that if the Licensee fails to remove the same aforesaid, the Landlord may remove such cables and equipment and the expense of such removal shall be paid by and recoverable from the Licensee forthwith on demand.  In the event of any such early termination, the annual fee for the use of the ducts shall be prorated accordingly.

This License may be terminated by Licensee immediately upon giving written notice to Landlord if Licensee cannot obtain all governmental certificates, permits, licenses or other approvals (collectively, “Approval”) required and/or any easements required from any third party; any Approval is canceled, terminated, expired or lapsed; Landlord breaches a representation or warranty contained in this License; Landlord fails to have proper ownership of the Premises and/or authority to enter into this License;

It is further understood and agreed by and between the parties hereto that if the Landlord at any time exercises its power or right to terminate this agreement or demand the removal of the Licensee’s cables and equipment or revoke the permission granted herein, the Landlord shall not be liable to pay compensation for any loss, costs or damages which may be incurred by the Licensee or any person claiming under the licensee by reason of such termination, demand, or revocation.

If this License is terminated at a time other than on the last day of the term year, Rent shall be prorated as of the date of termination and, in the event of termination for any reason other than Licensee’s default; all prepaid Rents shall be refunded to the Licensee.

HOLD OVER STATUS

It is agreed that in the event of the Licensee herein holding over after the termination of the primary term of this Agreement, the license shall be deemed to be on a month to month basis in the absence of a written agreement to the contrary.  The rental payments for such holdover status will be at rates that are equal to the last year of the agreement's term, increased by five percent (5%) for each year of the holdover. Either party, upon one month’s prior written notice, may terminate the Agreement operating in a hold over status

USE OF PREMISES

Licensee shall use the Premises for any lawful purpose.  Still, the parties recognize that Licensee intends to employ the premises for the deployment of telecommunications cabling and must obtain Landlord permission before any other activity take place.  Such permission shall not be unreasonable withheld or delayed by Landlord.

Licensee shall, at its own expense, comply with all present and future federal, state, and local laws, ordinances, rules and regulations (including laws and ordinances relating to health, safety, radio frequency emissions, and radiation) in connection with the use, operation, maintenance, construction and/or installation of the Premises.

REPAIR

It is understood and agreed that if the premises hereby licensed shall be damaged or destroyed in whole or in part during the term thereof, the Landlord will repair and restore the same to a good and useable condition with reasonable dispatch and that the fees herein provided for shall be abated entirely until the said premises have been so repaired and restored.

It is further understood and agreed that the Landlord will maintain and repair the premises hereby licensed at its own expense. This duty shall be and remain during the continuance of this Agreement to keep the premises in a safe, suitable and proper condition for receiving and carrying the Licensee’s said cables and so as to permit the proper operation of such cables therein.  Provided, however, that in the event of total or substantially total damage to or destruction of the Bridge in whole or in part, such that repairs may not be reasonable be effected within thirty (30) days thereof, either party may forthwith terminate this agreement upon written notice thereof, and paragraph 11 hereof shall apply (with modifications).

OTHER PROVIDERS ON BRIDGE

The Landlord shall not be responsible or liable to the Licensee for any loss or damage to persons or property that may be occasioned by or through the acts or omissions of persons occupying adjoining ducts.  Nor shall the Landlord be responsible or liable to the Licensee or its agents or employees for any loss or damage unless such loss or damage shall be caused by willful and intentional act of the Landlord or its agents or employees.  The Landlord shall not be responsible or liable for any loss or damage to persons or property occasioned by the negligence of the Licensee or its agents or employees, the Licensee hereby agreeing to accept full responsibility therefor.

SUBLEASE

Landlord agrees to cooperate, as necessary, with Licensee and the Other Providers regarding the right to use the covered premises.  Such permission shall not be unreasonable withheld or delayed upon the written request of Licensee.

Licensee shall be entitled to charge any Other Provider such rent and enter into a license on such terms as Licensee and the Other Provider may agree upon.

In addition to the rent payments due Landlord pursuant to Section 3 above, the Licensee shall pay the Landlord additional rental fees as other users collocate facilities on the Premises.  Licensee shall pay Landlord an amount equal to or fifty percent (50%) of the annual gross receipts from collocation received by Licensee.

OPERATIONAL RIGHTS

The Licensee and its employees, servants, agents and contractors shall have the right to ingress and egress without charge to the said bridge and appurtenant buildings and premises at any hour of any day for the purpose of maintenance, repair and installation of Licensee’s property, subject to the approval of the Landlord, which approval shall not be unreasonably held or delayed.

INSURANCE

It is further understood and agreed by and between the parties that by the execution of this agreement, the Licensee does hereby expressly and completely hold harmless, indemnify and release the Landlord from any and all liabilities, suits, claims and demand (whether for property damage or for personal injury or death and whether founded in tort, contract or quasi-contract) which at any time might be exerted by the Licensee arising out of the existence, use, repair, maintenance or removal of its cables, provided that any such liability, suit, claim or demand does not arise wholly from the Landlord’s negligence.

The Licensee further covenants and agrees to indemnify and save harmless Landlord from and against all loss, costs or damages which the Landlord may suffer or be put to and from against all claims or actions which may be made or brought against the Landlord by reason of said cables, their construction, existence, repair or maintenance or resulting therefrom in any way whatsoever, provided that any such loss, costs, damages, claims or actions so not to arise wholly from the Landlord’s negligence.

Licensee and it contractors shall produce, prior to commencing any installation, repair, or maintenance work on the Premises, a certificate of original insurance policy evidencing that the following insurance is maintained:

1.         Workers’ Compensation Insurance (at statutory limits) and Employer’s Liability Insurance with minimum limits of $500,000;

2.         Comprehensive General Liability and Property Damage Insurance (including completed operations and contractual liability) on an occurrence basis in an amount not less than $2,000,000 combined single limit; and

3.         Commercial Liability Insurance with minimum limits no less than $1,000,000 combined single limit and Builder's Risk Insurance with limit not less than 100% of the estimated value of the improvements being constructed by or on behalf of Licensee.

COMPLIANCE WITH LAW

Licensee acknowledges that it shall be the Licensee’s sole responsibility and liability to apply for and obtain any permit, authorization, or other permission from any international, federal, provincial or local government, board, tribunal, commission, agency or other authority exercising jurisdiction over the Licensee or relating to Licensee’s operations and occupation in, on or through said Bridge.

HAZARDOUS SUBSTANCE INDEMNIFICATION

Tenant represents and warrants that its use of the Premises herein will not generate any Hazardous Substance, as defined below, and it will not store or dispose on the Premises nor transport to or over the Premises any Hazardous Substance in violation of law.  “Hazardous Substance” shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time.

INSPECTION

Upon forty-eight (48) hours prior notice to Licensee, Landlord and its agents shall have the right to enter the Premises to examine and inspect the Premises; provided, however, Landlord (i) shall allow only properly trained individuals to enter the Premises, and (ii) acknowledges and assumes all the risk associated with such entry.

DEFAULT AND CURE

It shall be an event of default if Licensee fails to make any payment or provision of Rent or any other sums to Landlord when due, and does not cure such default within thirty (30) days; or if Licensee defaults in the performance of any other covenant or condition of this License and does not cure such other default within thirty (30) days after written notice from Landlord specifying the default complained of; or if Licensee abandons or vacates the Premises without paying rent;  or if Licensee is adjudicated a bankrupt or makes any assignment for the benefit of creditors.  If a non-monetary default may not reasonably be cured within a 30 day period, this license may not be terminated if the defaulting party commences action to cure the default within such thirty (30) day period and proceeds with due diligence to fully cure the default.

In the event of a default, Landlord shall have the right, at its option, in addition to and not exclusive of any other remedy Landlord may have by operation of law, without any further demand or notice, to re-enter the Premises and eject all persons therefrom, and either (a) declare this License at an end, in which event Licensee shall immediately pay Landlord a sum of money equal to the total of (i) the amount of the unpaid rent accrued through the date of termination; (ii) the amount by which the unpaid rent reserved for the balance of the term exceeds the amount of such rental loss that the Licensee proves could be reasonably avoided (net of the reasonable costs of such reletting); and (iii) any other reasonable amount necessary to compensate Landlord for all detriment proximately caused by Licensee’s failure to perform its obligations under the License; provided, however, nothing contained herein shall in any way limit Landlord’s duty to mitigate its damages, or (b) without terminating this License, relet the Premises, or any part thereof, for the account of Licensee upon such terms and conditions as Landlord may deem advisable, and any monies received from such reletting shall be applied first to the expenses of such reletting and collection, including reasonable attorneys’ fees, any real estate commissions paid, and thereafter toward payment of all sums due or to become due Landlord hereunder, and if a sufficient sum shall not be thus realized to pay such sums and other charges, Licensee shall pay Landlord any deficiency monthly, notwithstanding that Landlord may have received rental in excess of the rental stipulated in this License in previous or subsequent months, and Landlord may bring an action therefor as such monthly deficiency shall arise.

No re-entry and taking of possession of the Premises by Landlord shall be construed as an election on Landlord’s part to terminate this License, unless written notice of such intention is given to Licensee by Landlord.  Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this License for such pervious breach.

SUCCESSOR ,  ASSIGNS and MISCELLANEOUS

It is further understood and agreed by and between the parties hereto that this agreement shall be binding upon and ensures to the benefit of the parties hereto and their respective successors and permitted assigns (it being acknowledged that the Landlord may not arbitrarily withhold its consent to any subletting or assignment of the permission granted herein), that this agreement consists of and incorporates the main body and the attached Schedule “A”, and that words importing the masculine gender and the plural, as the case may be, and vice versa, respectively.

NOTICES

All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or by overnight courier to the following addresses:

                       

 

If to Landlord:              City of Laredo

                                                                        1110 Houston

                                                                        Laredo, Texas 78040

                                                                        Attn:  Legal Counsel and

                                                                        Telecommunications Director

 

With a copy to:             William Malone, Esq.

                                                                        Miller & Van Eaton, P.L.L.C.

                                                                        1155 Connecticut Avenue, N.W.

                                                                        Suite 1000       

                                                                        Washington, D.C. 20036-4306

 

If to Licensee:               Grande River Communications LP

                                                                        480 S. Sixth Street

                                                                        Raymondville, Texas  78580

 

                                   

IN WITNESS WHEREOF, the parties hereto have executed this License Agreement in accordance with law.

LANDLORD:

 

THE CITY OF LAREDO, TEXAS, USA

 

 

 

_________________________________

BY:      LARRY DOLVALINA

 CITY MANAGER

 

ATTEST:

 

 

__________________________

BY:  GUSTAVO GUEVARA

         CITY SECRETARY

 

 

LICENSEE:

 

Grande River Communications LLP

 

 

 

_________________________________

BY:     

 

 

 

APPROVED AS TO FORM

 

JAIME L. FLORES

CITY ATTORNEY

 

 

 

BY:______________________________

ALLAN W. McGRAW

ASSISTANT CITY ATTORNEY        


STATE OF TEXAS

COUNTY OF WEBB

 

            Before me, the undersigned, a Notary Public in and said County and State, on this ____ day of _____, 20___, personally appeared ______________________ to me known to be the identical person who subscribed the name of the City of Laredo to the foregoing License as its identical person and he acknowledged to me that he executed the same as his free and voluntary act and deed, and as the free and voluntary act and deed of such corporation, for the uses and purposes herein set forth.

            Given under my hand and seal of office the day and year last above written.

 

 

_____________

Notary Public

(seal)

 

 

 

 

 

 

 

 

 

 

STATE OF TEXAS

COUNTY OF WEBB

 

 

 

Before me, the undersigned, a Notary Public in and for said County and State, on this ______ day of _______, 20____, personally appeared _______________________________, to me known to the identical person who subscribed the name of City of Laredo to the Foregoing License as its identical person and he acknowledged to me that he executed the same as his free and voluntary act and deed, and as the free and voluntary act and deed of such corporation, for the uses and purposes therein set forth.

 

Given under my hand and seal of office the day and year last above written.

 

 

 

                                                                        ______________________________________

                                                                        Notary Public

(seal)