R-03-12-18-8E6 - 12/18/2003RESOLUTION NO. R -03-12-18-8E6
WHEREAS, Dell USA, L.P. ("Dell") is the owner of certain tracts
of land abutting Greenlawn Boulevard right-of-way, and
WHEREAS, the City of Round Rock ("City,,) owns the Greenlawn
Boulevard right-of-way, and
WHEREAS, Dell and the City propose to construct a pedestrian
crossing bridge to be built on and over the Greenlawn Boulevard right-
of-way, and
WHEREAS, in order to construct the bridge on and over the City
right-of-way, Dell requires a temporary construction license, and
WHEREAS, the City and Dell wish to enter into a Temporary
Construction License, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City a Temporary Construction License with Dell USA,
L.P.; a copy of same being attached hereto as Exhibit "A" and
incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all asrequired by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
@PFUeSktOP\::UDMA/WORLDOXi.O:/W'uOX./RESOLUTI/R312:.8E6:WPU/SC
RESOLVED this 18th day of December, 2003.
MAXWELL, Mayor
of Round Rock, Texas
ATTEST:
CHRISTINE R. MARTINEZ, City Secre ary
@PFDesktop\::ODMA WORLDOX/O:/WDOX/RDSOLVPIiR31218C6.WPD/SC 2
TEMPORARY CONSTRUCTION LICENSE
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF WILLIAMSON §
This Agreement is made on the day of , 2003, at Round Rock,
Texas, between the City of Round Rock, a Texas home rule municipality, hereinafter referred to
as "Licensor," and DELL USA L.P. [confirming with client], a Texas limited partnership, herein
referred to as "Licensee."
1. For the good and valuable consideration described in Paragraph 2, below, Licensor
grants to Licensee a temporary construction license ("Construction License") upon,
under, and across the following described property of the Licensor ("Construction
Area"), to wit:
Being
said tract being more particularly described by metes and bounds
in Exhibit "A" and by sketch in Exhibit "B" attached hereto and
made a part hereof.
2. This Construction License is granted for and in consideration of the sum of one dollar
and no/100 ($1.00) and other good and valuable consideration to Licensor in hand
paid by Licensee.
3. This Construction License, with its rights and privileges, shall be used only for the
purpose of (a) constructing a pedestrian crossing over Greenlawn Boulevard, (b)
constructing a fence in the median of Greenlawn Boulevard, (c) and removing,
relocating and repairing driveways, curbs, gutters, traffic medians and roadway
payment on, under or across a right-of-way dedicated to the City of Round Rock and
such construction being performed substantially in accordance with the plans entitled
"The Dell Round Rock Campus Pedestrian Crossing Phase II" dated
2003 prepared by Bury and Partners (the 'Bury Plans") and the plans entitled "Dell
Round Rock Pedestrian Bridge and Improvements" dated , 2003, prepared by
STG Architects(the "STG Plans") (the Bury Plans and the STG Plans are referred to
together as the "Project Plans") (all such construction being referred to collectively as
the "Project").
4. This Construction License shall be in effect from the date construction begins on the
Project and shall continue, subject to the terms and conditions of this Construction
License, until completion of construction the Project and dedication to and acceptance
by Licensor of the Project, at which time this Construction License shall expire.
EXHIBIT "A"
In the event Licensee desires to make any modifications to the Project, Licensee shall
present detailed construction, demolition and/or landscaping plans and specifications
revising the Project Plans to the City for review and approval prior to the
commencement of any construction in the Construction Area with respect to such
modification, including, without limitation, any sidewalk or driveway alteration.
5. Licensee understands and expressly agrees that Licensor may require the assistance of
outside consultants or engineers in the review and approval of proposed revisions to
the Project Plans or approval of the Project and Licensee shall pay for such
consultants and/or engineers.
6. All construction, installations, repairs, and/or removals shall be in accordance with
the Project Plans (as may be modified in accordance with Paragraph 5 above), and the
City of Round Rock's ordinances.
7. Review and approval of the Project Plans (and any modifications thereto) by Licensor
shall in no way exempt or waive Licensee or its contractors or subcontractors from
any permit requirements or payment of any fees associated with construction of the
Project or any portion thereof.
8. Licensee shall comply with all federal, state and local safety statutes, codes,
standards, regulations or ordinances, including, but not limited to any OSHA
requirements.
9. Any existing utilities, communication facility, pavement, curbs, sidewalks, structures,
trees or fencing that are damaged or removed as a result of Licensee's actions shall be
repaired or replaced by the Licensee or its contractor to the satisfaction of such owner
at no cost to Licensor or any such other owner.
10. Licensee shall maintain at all times during construction of the Project a minimum
four foot (4') wide continuous concrete sidewalk free of obstruction and open to
public pedestrian traffic on at least one side of Greenlawn Boulevard.
11. Licensee shall maintain at all times during construction of the Project a minimum
foot (—') wide pavement for vehicular traffic for at least one lane of traffic
going in each direction on Greenlawn Boulevard.
12. Any new curbing constructed by Licensee shall align with existing curb line.
13. Any lighting installed by Licensee during construction of the Project_shall be private
lighting and shall be operated and maintained by Licensee. However, Licensor
reserves the right, following ten (10) days prior written notice to Licensee, to remove
lights for any reason, including, without limitation, Licensee's failure to properly
maintain same, at Licensee's expense.
14. Licensee shall bear the full cost and expense of relocating any utility and
communication, including cable and broadband, facilities required because of the
Project. Licensee shall contact all utility and communication companies who have
facilities existing in the Construction Area forty-eight (48) yours prior to any
excavation for line locations.
15. Licensee shall design any sprinkler/irrigation system such that no water will be
directed towards the driving surface of a street. Any water runoff from the system
shall be captured and disposed of without causing the driving surface of the street to
become wet. Runoff may be collected in a curb gutter, provided the gutter itself does
not drain into or across a driving surface of a street or driveway.
16. The pedestrian crossing shall be constructed a minimum height of seventeen feet six
inches (17'6") from the ground level and the walkway shall have a maximum width
of twelve feet (12').
17. All improvements shall, in all respect, comply with the International Building and
Fire Codes as adopted by the City of Round Rock.
18. No completed improvements shall be allowed to obstruct streets, alleys or drives with
vehicular traffic.
19. All inactive work vehicles, including contractors' and subcontractors' private vehicles
shall be parked on Licensee's property so as not to block or impair travel on any
public street.
20. During all phases of construction, modification, removal, repair, or maintenance of
the improvements or any portion thereof, Licensee, its contractors and subcontractors
shall keep the area clean and all debris contained or disposed of properly.
Licensee shall, during the effective period of this License, require its contractors,
while engaged in the construction, modification, removal, repair or maintenance of
the improvements or any portion thereof to procure, pay for and maintain the
following insurance:
a. Workers Compensation
Employer Liability
b. Commercial General Liability
Bodily Injury
Property Damage
Statutory Limits
$500,000 each accident
$500,000 per employee
$1,000,000 disease
policy limit
$1,000,000/occ.
$1,000,000/occ.
$2,000,000 aggre.
Such policy shall include independent contractor liability, completed operations,
personal injury liability and contractual liability covering but not limited to any
applicable indemnification provisions. If coverage is written on a claims made
basis, coverage shall be continuous (by renewal or extended reporting period) for
no less than sixty (60) months following completion of the contract and
acceptance of work. Coverage, including any renewals, shall have the same
retroactive date as the original policy applicable to the Project. City of Round
Rock shall be named as an additional insured. The policy shall include coverage
extended to apply to asbestos hazards (if the project involves work with asbestos)
and XCU (explosion, collapse and underground) hazards. The Completed
Operations coverage must be maintained for a minimum of one (1) year after final
completion and acceptance of the work in question, with evidence of the same
filed with Licensor.
C. Business Automobile Liability
Bodily Injury $ 500,000/person
$1,000,000/occ.
Property Damage $ 500,000/occ.
Such policy shall cover owned, non -owned and hired vehicles and shall include
coverage for loading and unloading hazards.
d. Umbrella Coverage
Bodily Injury and Property
Damage (including death) $10,000,000/combined
Single limits
Such policy shall be in addition to and excess of the above -referenced policies
and follow the form of the primary coverage required above.
e. Professional Liability
$1,000,000/claim
$2,000,000/agg.
23. The insurance described in paragraph 22 above shall protect Licensee and Licensor
against any and all claims for injuries to persons, including death, or property
damage, including but not limited to damage to the Licensed Area, as a result of or
arising out of the construction, modification, removal, repair or maintenance by
Licensee's contractors of the improvements in the Licensed Area.
a. All policies are to be from a company authorized by the Texas State Board
of Insurance to transact that type of insurance in the State of Texas with a
minimum rating of "A" in the most recent A.M. Best Company rating of
an insurer.
b. Each policy shall bear an endorsement or statement waiver right of
cancellation or reduction in coverage without thirty (30) days written
notice to Licensor.
C. Companies issuing the insurance policies shall have no recourse against
Licensor for payment of any premiums or assessments for any deductibles
which are the sole responsibility and risk of Licensee or its contractors.
d. The terms "Licensor," "City," or "City of Round Rock" shall include all
authorities, boards, commissions, officers, employees and agents of the
City in their official capacities, and/or while acting on behalf of the City of
Round Rock.
e. The policy clause "Other Insurance" shall not apply to any insurance
coverage currently held by Licensor, to any such future coverage, or to
any self-insured retentions by the City of whatever nature.
f. All policies shall include contractual liability insurance covering
Licensee's and its contractor's indemnity obligations contained herein.
g. Licensor shall be named as an additional insured on each insurance policy,
except for Workers' Compensation.
h. Each policy shall contain a waiver of subrogation in favor of the Licensor
and covering all claims Licensee, its contractor or the insurer may have
against the Licensor.
i. Licensor reserves the right to review the insurance requirements of this
section during the effective period of this License and to adjust insurance
coverages and their limits when deemed necessary and prudent. Licensee
agrees to make any reasonable request for deletion, revision or
modification to the terms, endorsements or limits (except where policy
provisions are established by law or regulation binding upon either party
to this Construction License or upon the underwriter of any such policy).
j. Review and approval, disapproval or failure to act by Licensor regarding
any insurance supplied by Licensee or its contractors shall not relieve
Licensee or its contractors of full responsibility or liability for damages,
errors, omissions or accidents as set forth in this Construction License or
any contracts for the improvements. Neither the bankruptcy or insolvency
of Licensee, its contractors, insurer, nor any denial of liability by
Licensee, or Licensee's contractor's insurer shall exonerate or relieve
Licensee or its contractors from the liability or responsibility set forth in
this Construction License.
24. Licensee shall comply with the requirements of all applicable laws, rules and
regulations, and, during the term of this Construction License, shall indemnify, hold
harmless and defend Licensor, its officers, agents and employees from and against
any and all claims, losses, damages, causes of action, expenses of litigation, court
costs, and attorney's fees, for injury to or death of any person, or for damage to any
property, arising out of or in connection with Licensee's exercise of its rights under
the Construction License. Licensee covenants and agrees never to make a claim of
any kind or character whatsoever against the City of Round Rock for damage of any
kind that it may suffer by reason of the installation, construction, or reconstruction, of
the Project, utility or communication facility in the Construction Area, whether
presently in place or which may in the future be constructed or installed, including
but not limited to, any water or wastewater mains or storm sewer facilities, regardless
of whether such damage is due to flooding, infiltration, backflow or seepage caused
from the failure of any installation, natural causes, City's negligence, or any other
cause whatsoever. IT IS THE INTENTION OF THIS INDEMNITY
AGREEMENT ON THE PART OF THE LICENSEE, AND A CONDITION OF
THIS CONSTRUCTION LICENSE, THAT IT SHALL BE FULL AND TOTAL
DEFENSE AND INDEMNITY AGAINST ANY HIND OR CHARACTER OF
CLAIM WHATSOEVER THAT MAY BE ASSERTED AGAINST THE CITY
OF ROUND ROCK BY REASON OR AS A CONSEQUENCE OF HAVING
GRANTED PERMISSION TO LICENSEE TO CONSTRUCT
IMPROVEMENTS IN THE CONSTRUCTION AREA REGARDLESS OF
WHETHER OR NOT THE ORDINARY NEGLIGENCE OF THE CITY, ITS
OFFICERS, AGENTS OR EMPLOYEES, CAUSED OR CONTRIBUTED TO
THE DAMAGE, INJURY OR LOSS THAT IS THE SUBJECT OF SUCH
CLAIM.
25. Licensee is prohibited from using the Construction Area in any manner that violates
federal, state or local laws, regulations, rules and orders, regardless of when they
become or became effective, including without limitation, those related to health,
safety, noise, environmental protection, waste disposal and water and air quality, and
shall provide satisfactory evidence of compliance upon the request of Licensor.
Should any discharge, leakage, spillage, emission or pollution of any type occur upon
or from the Construction Area due to Licensee's use and occupancy thereof,
Licensee, at its own expense, shall be obligated to clean up the Construction Area to
the reasonable satisfaction of Licensor. Should Licensor be required to clean the
Construction Area, Licensee shall promptly pay to Licensor the costs expended for
such cleanup upon receipt of bills therefore. Licensee agrees that the indemnity
provisions contained within this Construction License shall be fully applicable to the
requirements of this paragraph.
26. Licensee assumes full responsibility for its exercise of the Construction License, and
during the term of this Construction License, releases, relinquishes and discharges
Licensor, its officers, agents and employees, from all claims, demands, and causes of
action of every kind and character, including the cost of defense thereof, for any
injury to, including death, of person (whether they be third persons, contractor, or
employees of either of the parties hereto) and any loss of or damage to property
(whether the same be that either of the parties hereto or of third parties) caused by or
alleged to be caused, arising out of, or in connection with Licensee's exercise of the
Construction License whether or not said claims, demands and causes of action in
whole or in part are covered by insurance.
27. Licensee expressly agrees to return the Construction Area to its original condition, or
as close thereto as is reasonably possible, subject to Licensee's right to construct the
Project.
28. Licensee shall provide Licensor with a copy of the work schedule (the "Work
Schedule") established between Licensee and its contractors for completion of the
Project. During the construction of the Project, should the Work Schedule be
modified, Licensee shall provide Licensor with the modified Work Schedule.
Licensee expressly understands and agrees that time is of the essence and that failure
of Licensee to complete the Project within six (6) months after the completion date as
set forth in the Work Schedule, or any modified Work Schedule, may result in
termination of this Construction License. If Licensee has failed to complete the
Project within six (6) months after the completion date as set forth in the Work
Schedule, Licensor may terminate this Construction License by giving ninety (90)
days written notice to Licensee and, if at the end of such ninety (90) day period, the
Project is not completed, at its option, Licensor may require that Licensee, at its sole
expense, remove all portions of the Project installed at such time and restore the
Construction Area to its original condition, or as close thereto as is reasonably
possible.
29. The Construction License may be terminated by any of the following conditions:
a. By mutual agreement and consent in writing by both parties;
b. By Licensor as set forth in Paragraph 28 above; or
c. By satisfactory completion of all services and obligations described herein.
30. a. Upon completion of construction of the Project, Licensee shall give written
notice to Licensor and Licensor shall, within ten (10) days following Licensor's
receipt of such notice, begin an inspection of the Project for the purpose of
determining compliance of the Project with the Project Plans.
b. Licensor shall give written notice to Licensee of completion of its inspection
within three (3) days following completion of its inspection. Such notice shall
either (i) confirm compliance of the Project with the Project Plans or (ii) list any
material discrepancies of the Project from the Project Plans. Licensee shall, within
thirty (30) days of Licensee's receipt of such notice, complete the correction of
any such discrepancies and notify Licensor of such completion. Licensor shall,
within ten (10) days following Licensor's receipt of such notice, begin a re-
inspection of the Project and within three (3) days following completion of such
re -inspection, deliver to Licensee a notice which either (i) confirms compliance of
the Project with the Project Plans or (ii) list any remaining material discrepancies
of the Project from the Project Plans.
c. Licensor and Licensee shall follow the procedure set forth in paragraphs 30 (a)
and (b) above until Licensor gives written notice to Licensee of compliance of the
Project with the Project Plans. Within ten (10) days following Licensee's receipt
of such notice, Licensee shall dedicate to Licensor, and Licensor shall execute
with Licensee a document accepting title and ownership of the Project, or, at
Licensor's option, Licensor shall adopt a resolution accepting ownership of the
Project, and from and after the time of the execution and delivery of such a
document or the adoption of such a resolution, as applicable, Licensor will own,
operate, and maintain the Project so accepted.
31. Licensor and Licensor's heirs, personal representatives, successors, and assigns are
and shall be bound to warrant and forever defend the license and rights conveyed in this
instrument to Licensee and Licensee's successors and assigns, against every person
lawfully claiming or to claim all or any part of the interest in the Construction Area.
32. This Construction License, and the rights and privileges granted by this Construction
License, are exclusive, and Licensor covenants not to convey any other license or
conflicting rights in the area covered by this Construction License. Such Construction
License is made expressly subject and subordinate to the right of the City to use the
Project Area for any public purpose which does not unreasonably interfere with
Licensee's rights hereunder. Further, Licensee understands and agrees that this
Construction License is subject to any existing utilities or communication facilities,
including drainage, presently located in, over, under, through, across and along the
Project Area, owned and/or operated by the City of Round Rock or any utility or
communications company, public or private and to any vested rights presently owned by
any utility or communications company, public or private. No portion of the Project shall
be constructed or placed upon, over, or across the Project Area in such a manner to
interfere with the operation of any utilities and communication facilities, and any utility
and/or communication facility shall have the right to remove and keep removed all parts
of the Project which endanger or unreasonably interfere with the construction,
maintenance or efficiency of its respective systems within the Project Area. Licensor and
all communication and utility companies, both public and private, which have existing
rights with respect to the Project Area as of the date of this Construction License shall at
all times have the rights, if any, contained in the instrument creating such right including,
without limitation, the right of ingress and egress to or from and upon the said Project
Area if such right is contained in such instrument. It is understood that this Construction
License creates a License only and that Licensee does not and shall not claim at any time
any interest or estate of any kind in the public rights-of-way located within the Licensed
Area by virtue of this License. The indemnity obligations set forth in this Construction
License also include any claims for damages that any utility or communication company,
whether publicly or privately owned, may sustain or receive by reason of Licensee's use
of the Project Area or the Project located thereon.
33. This Construction License shall be enforceable in Round Rock, Williamson County,
Texas, and if legal action is necessary by either party with respect to the enforcement of
any or all of the terms or conditions herein, exclusive venue for same shall lie in
Williamson County, Texas. This Construction License shall be governed by and
construed in accordance with the laws and court decisions of the State of Texas.
34. This Construction License contains the entire agreement between the parties relating
to its subject matter. Any oral representations or modifications concerning this
Construction License shall be of no force and effect. Any subsequent amendment or
modification must be in writing and agreed to by all parties.
35. This Construction License shall bind and inure to the benefit of the Licensee and any
successors or assigns of Licensee, and shall bind and inure to the benefit of the Licensor
and the Licensor's heirs, personal representatives, successors, and assigns.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed on this
day of , 2003.
LICENSOR:
CITY OF ROUND ROCK
By:
NYLE MAXWELL, Mayor
ATTEST:
By:
Christine R. Martinez, City Secretary
APPROVED AS TO FORM:
t;ny Attorney
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
LICENSEE:
DELL USA, L.P.
By:
Printed Name:
Its:
This instrument was acknowledged before me on this the day of
, 2003, by
Notary Public, State of Texas
After Recording, Please Return To:
Sheets & Crossfield, P.C.
309 East Main
Round Rock, Texas 78664
DATE: December 12, 2003
SUBJECT: City Council Meeting - December 18, 2003
ITEM: 8.E.6. Consider a resolution authorizing the Mayor to execute a
Temporary Construction License with Dell USA, L.P. for the
Dell Pedestrian Bridge.
Resource: Tom Word, Chief of P. W. Operations
Eric Langhout, Engineer Associate
History: Dell pedestrians crossing Greenlawn at the mid -block crosswalk, and at
other non -intersection locations are creating a significant safety hazard.
Dell has proposed constructing a pedestrian overpass at the mid -block
location at their expense to reduce the safety concerns for their
employees. They will also construct a fence to direct pedestrians to the
pedestrian overpass. The overpass will be available to the general
public, and the City will maintain the structure upon completion.
The Temporary Construction License authorizes Dell to construct the
Pedestrian Bridge in the public right-of-way, and makes Dell liable for
construction safety and traffic handling issues.
Funding:
Cost: Structural review costs estimated to be $5,000
Source of funds: Dell USA, L.P.
Outside Resources: Dell USA, L.P.
Bury & Partners, Inc.
Impact/Benefit: A new pedestrian bridge crossing Greenlawn Boulevard owned
by the city and funded by Dell Computers. To improve the
safety of pedestrian crossing along Greenlawn Boulevard for
Dell Computers.
Public Comment: N/A
Sponsor: N/A
EXECUTED
DOCUMENT
FOLLOWS
TEMPORARY CONSTRUCTION LICENSE
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF WILLIAMSON §
This Agreement is made on the J9 day of December, 2003, at Round Rock, Texas,
between the City of Round Rock, a Texas home rule municipality, hereinafter referred to as
"Licensor," and DELL COMPUTER HOLDINGS, L.P., a Texas limited partnership, herein
referred to as "Licensee."
1. For the good and valuable consideration described in Paragraph 2, below, Licensor
grants to Licensee a temporary construction license ("Construction License") upon,
under, and across the following described property of the Licensor ("Construction
Area"), to wit:
Being that tract more particularly depicted by sketch in Exhibit
"A" attached hereto and made a part hereof.
2. This Construction License is granted for and in consideration of the sum of one dollar
and no/100 ($1.00) and other good and valuable consideration to Licensor in hand
paid by Licensee.
3. This Construction License, with its rights and privileges, shall be used only for the
purpose of (a) constructing a pedestrian crossing over Greenlawn Boulevard, (b)
constructing a fence in the median of Greenlawn Boulevard, (c) and removing,
relocating and repairing driveways, curbs, gutters, traffic medians and roadway
payment on, under or across a right-of-way dedicated to the City of Round Rock and
such construction being performed substantially in accordance with the plans entitled
"The Dell Round Rock Campus Pedestrian Crossing Phase Il," having a submittal
date of June 6, 2003 and an approval date of December 12, 2003, prepared by Bury
and Partners (the 'Bury Plans") and the plans entitled "Dell Round Rock Pedestrian
Bridge and Improvements," having a submittal date of June 6, 2003 and an approval
date of December 12, 2003, prepared by STG Architects(the "STG Plans") (the Bury
Plans and the STG Plans are referred to together as the "Project Plans") (all such
construction being referred to collectively as the "Project").
4. This Construction License shall be in effect from the date construction begins on the
Project and shall continue, subject to the terms and conditions of this Construction
License, until completion of construction the Project and dedication to and acceptance
by Licensor of the Project, at which time this Construction License shall expire.
In the event Licensee desires to make any modifications to the Project, Licensee shall
present detailed construction, demolition and/or landscaping plans and specifications
revising the Project Plans to the City for review and approval prior to the
commencement of any construction in the Construction Area with respect to such
modification, including, without limitation, any sidewalk or driveway alteration.
5. Licensee understands and expressly agrees that Licensor may require the assistance of
outside consultants or engineers in the review and approval of proposed revisions to
the Project Plans or approval of the Project and Licensee shall pay for such
consultants and/or engineers.
6. All construction, installations, repairs, and/or removals shall be in accordance with
the Project Plans (as may be modified in accordance with Paragraph 5 above), and the
City of Round Rock's ordinances.
7. Review and approval of the Project Plans (and any modifications thereto) by Licensor
shall in no way exempt or waive Licensee or its contractors or subcontractors from
any permit requirements or payment of any fees associated with construction of the
Project or any portion thereof.
8. Licensee shall comply with all federal, state and local safety statutes, codes,
standards, regulations or ordinances, including, but not limited to any OSHA
requirements.
9. Any existing utilities, communication facility, pavement, curbs, sidewalks, structures,
trees or fencing that are damaged or removed as a result of Licensee's actions shall be
repaired or replaced by the Licensee or its contractor to the satisfaction of such owner
at no cost to Licensor or any such other owner.
10. Licensee shall maintain at all times during construction of the Project a minimum
four foot (4') wide continuous concrete sidewalk free of obstruction and open to
public pedestrian traffic on at least one side of Greenlawn Boulevard.
11. Licensee shall maintain at all times during construction of the Project a minimum
fifteen foot (15') wide pavement for vehicular traffic for at least one lane of traffic
going in each direction on Greenlawn Boulevard.
12. Any new curbing constructed by Licensee shall align with existing curb line.
13. Any lighting installed by Licensee during construction of the Project -shall be private
lighting and shall be operated and maintained by Licensee. However, Licensor
reserves the right, following ten (10) days prior written notice to Licensee, to remove
lights for any reason, including, without limitation, Licensee's failure to properly
maintain same, at Licensee's expense.
14. Licensee shall bear the full cost and expense of relocating any utility and
communication, including cable and broadband, facilities required because of the
Project. Licensee shall contact all utility and communication companies who have
facilities existing in the Construction Area forty-eight (48) yours prior to any
excavation for line locations.
15. Licensee shall design any sprinkler/irrigation system such that no water will be
directed towards the driving surface of a street. Any water runoff from the system
shall be captured and disposed of without causing the driving surface of the street to
become wet. Runoff may be collected in a curb gutter, provided the gutter itself does
not drain into or across a driving surface of a street or driveway.
16. The pedestrian crossing shall be constructed a minimum height of seventeen feet six
inches (17'6") from the ground level and the walkway shall have a maximum width
of twelve feet (12').
17. All improvements shall, in all respect, comply with the International Building and
Fire Codes as adopted by the City of Round Rock.
18. No completed improvements shall be allowed to obstruct streets, alleys or drives with
vehicular traffic.
19. All inactive work vehicles, including contractors' and subcontractors' private vehicles
shall be parked on Licensee's property so as not to block or impair travel on any
public street.
20. During all phases of construction, modification, removal, repair, or maintenance of
the improvements or any portion thereof, Licensee, its contractors and subcontractors
shall keep the area clean and all debris contained or disposed of properly.
Licensee shall, during the effective period of this License, require its contractors,
while engaged in the construction, modification, removal, repair or maintenance of
the improvements or any portion thereof to procure, pay for and maintain the
following insurance:
a. Workers Compensation
Employer Liability
b. Commercial General Liability
Bodily Injury
Property Damage
Statutory Limits
$500,000 each accident
$500,000 per employee
$1,000,000 disease
policy limit
$1,000,000/occ.
$1,000,000/occ.
$2,000,000 aggre.
Such policy shall include independent contractor liability, completed operations,
personal injury liability and contractual liability covering but not limited to any
applicable indemnification provisions. If coverage is written on a claims made
basis, coverage shall be continuous (by renewal or extended reporting period) for
no less than sixty (60) months following completion of the contract and
acceptance of work. Coverage, including any renewals, shall have the same
retroactive date as the original policy applicable to the Project. City of Round
Rock shall be named as an additional insured. The policy shall include coverage
extended to apply to asbestos hazards (if the project involves work with asbestos)
and XCU (explosion, collapse and underground) hazards. The Completed
Operations coverage must be maintained for a minimum of one (1) year after final
completion and acceptance of the work in question, with evidence of the same
filed with Licensor.
C. Business Automobile Liability
Bodily Injury $ 500,000/person
$1,000,000/occ.
Property Damage $ 500,000/occ.
Such policy shall cover owned, non -owned and hired vehicles and shall include
coverage for loading and unloading hazards.
d. Umbrella Coverage
Bodily Injury and Property
Damage (including death) $10,000,000/combined
Single limits
Such policy shall be in addition to and excess of the above -referenced policies
and follow the form of the primary coverage required above.
e. Professional Liability
$1,000,000/claim
$2,000,000/agg.
23. The insurance described in paragraph 22 above shall protect Licensee and Licensor
against any and all claims for injuries to persons, including death, or property
damage, including but not limited to damage to the Licensed Area, as a result of or
arising out of the construction, modification, removal, repair or maintenance by
Licensee's contractors of the improvements in the Licensed Area.
a. All policies are to be from a company authorized by the Texas State Board
of Insurance to transact that type of insurance in the State of Texas with a
minimum rating of "A" in the most recent A.M. Best Company rating of
an insurer.
b. Each policy shall bear an endorsement or statement waiver right of
cancellation or reduction in coverage without thirty (30) days written
notice to Licensor.
C. Companies issuing the insurance policies shall have no recourse against
Licensor for payment of any premiums or assessments for any deductibles
which are the sole responsibility and risk of Licensee or its contractors.
d. The terms "Licensor," "City," or "City of Round Rock" shall include all
authorities, boards, commissions, officers, employees and agents of the
City in their official capacities, and/or while acting on behalf of the City of
Round Rock.
e. The policy clause "Other Insurance" shall not apply to any insurance
coverage currently held by Licensor, to any such future coverage, or to
any self-insured retentions by the City of whatever nature.
f. All policies shall include contractual liability insurance covering
Licensee's and its contractor's indemnity obligations contained herein.
g. Licensor shall be named as an additional insured on each insurance policy,
except for Workers' Compensation.
h. Each policy shall contain a waiver of subrogation in favor of the Licensor
and covering all claims Licensee, its contractor or the insurer may have
against the Licensor.
i. Licensor reserves the right to review the insurance requirements of this
section during the effective period of this License and to adjust insurance
coverages and their limits when deemed necessary and prudent. Licensee
agrees to make any reasonable request for deletion, revision or
modification to the terms, endorsements or limits (except where policy
provisions are established by law or regulation binding upon either party
to this Construction License or upon the underwriter of any such policy).
j. Review and approval, disapproval or failure to act by Licensor regarding
any insurance supplied by Licensee or its contractors shall not relieve
Licensee or its contractors of full responsibility or liability for damages,
errors, omissions or accidents as set forth in this Construction License or
any contracts for the improvements. Neither the bankruptcy or insolvency
of Licensee, its contractors, insurer, nor any denial of liability by
Licensee, or Licensee's contractor's insurer shall exonerate or relieve
Licensee or its contractors from the liability or responsibility set forth in
this Construction License.
24. Licensee shall comply with the requirements of all applicable laws, rules and
regulations, and, during the term of this Construction License, shall indemnify, hold
harmless and defend Licensor, its officers, agents and employees from and against
any and all claims, losses, damages, causes of action, expenses of litigation, court
costs, and attorney's fees, for injury to or death of any person, or for damage to any
property, arising out of or in connection with Licensee's exercise of its rights under
the Construction License. Licensee covenants and agrees never to make a claim of
any kind or character whatsoever against the City of Round Rock for damage of any
kind that it may suffer by reason of the installation, construction, or reconstruction, of
the Project, utility or communication facility in the Construction Area, whether
presently in place or which may in the future be constructed or installed, including
but not limited to, any water or wastewater mains or storm sewer facilities, regardless
of whether such damage is due to flooding, infiltration, backflow or seepage caused
from the failure of any installation, natural causes, City's negligence, or any other
cause whatsoever. IT IS THE INTENTION OF THIS INDEMNITY
AGREEMENT ON THE PART OF THE LICENSEE, AND A CONDITION OF
THIS CONSTRUCTION LICENSE, THAT IT SHALL BE FULL AND TOTAL
DEFENSE AND INDEMNITY AGAINST ANY KIND OR CHARACTER OF
CLAIM WHATSOEVER THAT MAY BE ASSERTED AGAINST THE CITY
OF ROUND ROCK BY REASON OR AS A CONSEQUENCE OF HAVING
GRANTED PERMISSION TO LICENSEE TO CONSTRUCT
IMPROVEMENTS IN THE CONSTRUCTION AREA REGARDLESS OF
WHETHER OR NOT THE ORDINARY NEGLIGENCE OF THE CITY, ITS
OFFICERS, AGENTS OR EMPLOYEES, CAUSED OR CONTRIBUTED TO
THE DAMAGE, INJURY OR LOSS THAT IS THE SUBJECT OF SUCH
CLAIM.
25. Licensee is prohibited from using the Construction Area in any manner that violates
federal, state or local laws, regulations, rules and orders, regardless of when they
become or became effective, including without limitation, those related to health,
safety, noise, environmental protection, waste disposal and water and air quality, and
shall provide satisfactory evidence of compliance upon the request of Licensor.
Should any discharge, leakage, spillage, emission or pollution of any type occur upon
or from the Construction Area due to Licensee's use and occupancy thereof,
Licensee, at its own expense, shall be obligated to clean up the Construction Area to
the reasonable satisfaction of Licensor. Should Licensor be required to clean the
Construction Area, Licensee shall promptly pay to Licensor the costs expended for
such cleanup upon receipt of bills therefore. Licensee agrees that the indemnity
provisions contained within this Construction License shall be fully applicable to the
requirements of this paragraph.
26. Licensee assumes full responsibility for its exercise of the Construction License, and
during the term of this Construction License, releases, relinquishes and discharges
Licensor, its officers, agents and employees, from all claims, demands, and causes of
action of every kind and character, including the cost of defense thereof, for any
injury to, including death, of person (whether they be third persons, contractor, or
employees of either of the parties hereto) and any loss of or damage to property
(whether the same be that either of the parties hereto or of third parties) caused by or
alleged to be caused, arising out of, or in connection with Licensee's exercise of the
Construction License whether or not said claims, demands and causes of action in
whole or in part are covered by insurance.
27. Licensee expressly agrees to return the Construction Area to its original condition, or
as close thereto as is reasonably possible, subject to Licensee's right to construct the
Project.
28. Licensee shall provide Licensor with a copy of the work schedule (the "Work
Schedule") established between Licensee and its contractors for completion of the
Project. During the construction of the Project, should the Work Schedule be
modified, Licensee shall provide Licensor with the modified Work Schedule.
Licensee expressly understands and agrees that time is of the essence and that failure
of Licensee to complete the Project within six (6) months after the completion date as
set forth in the Work Schedule, or any modified Work Schedule, may result in
termination of this Construction License. If Licensee has failed to complete the
Project within six (6) months after the completion date as set forth in the Work
Schedule, Licensor may terminate this Construction License by giving ninety (90)
days written notice to Licensee and, if at the end of such ninety (90) day period, the
Project is not completed, at its option, Licensor may require that Licensee, at its sole
expense, remove all portions of the Project installed at such time and restore the
Construction Area to its original condition, or as close thereto as is reasonably
possible.
29. The Construction License may be terminated by any of the following conditions:
a. By mutual agreement and consent in writing by both parties;
b. By Licensor as set forth in Paragraph 28 above; or
c. By satisfactory completion of all services and obligations described herein.
30. a. Upon completion of construction of the Project, Licensee shall give written
notice to Licensor and Licensor shall, within ten (10) days following Licensor's
receipt of such notice, begin and diligently pursue an inspection of the Project for
the purpose of determining compliance of the Project with the Project Plans.
b. Licensor shall give written notice to Licensee of completion of its inspection
within three (3) days following completion of its inspection. Such notice shall
either (i) confirm compliance of the Project with the Project Plans or (ii) list any
material discrepancies of the Project from the Project Plans. Licensee shall, within
thirty (30) days of Licensee's receipt of such notice, complete the correction of
any such discrepancies and notify Licensor of such completion. Licensor shall,
within ten (10) days following Licensor's receipt of such notice, begin and
diligently pursue a re -inspection of the Project and within three (3) days following
completion of such re -inspection, deliver to Licensee a notice which either (i)
confirms compliance of the Project with the Project Plans or (ii) list any
remaining material discrepancies of the Project from the Project Plans.
c. Licensor and Licensee shall follow the procedure set forth in paragraphs 30 (a)
and (b) above until Licensor gives written notice to Licensee of compliance of the
Project with the Project Plans. Within ten (10) days following Licensee's receipt
of such notice, Licensee shall dedicate to Licensor, and Licensor shall execute
with Licensee a document accepting title and ownership of the Project, or, at
Licensor's option, Licensor shall adopt a resolution accepting ownership of the
Project, and from and after the time of the execution and delivery of such a
document or the adoption of such a resolution, as applicable, Licensor will own,
operate, and maintain the Project so accepted.
31. Licensor and Licensor's heirs, personal representatives, successors, and assigns are
and shall be bound to warrant and forever defend the license and rights conveyed in this
instrument to Licensee and Licensee's successors and assigns, against every person
lawfully claiming or to claim all or any part of the interest in the Construction Area.
32. This Construction License, and the rights and privileges granted by this Construction
License, are exclusive, and Licensor covenants not to convey any other license or
conflicting rights in the area covered by this Construction License. Such Construction
License is made expressly subject and subordinate to the right of the City to use the
Project Area for any public purpose which does not unreasonably interfere with
Licensee's rights hereunder. Further, Licensee understands and agrees that this
Construction License is subject to any existing utilities or communication facilities,
including drainage, presently located in, over, under, through, across and along the
Project Area, owned and/or operated by the City of Round Rock or any utility or
communications company, public or private and to any vested rights presently owned by
any utility or communications company, public or private. No portion of the Project shall
be constructed or placed upon, over, or across the Project Area in such a manner to
interfere with the operation of any utilities and communication facilities, and any utility
and/or communication facility shall have the right to remove and keep removed all parts
of the Project which endanger or unreasonably interfere with the construction,
maintenance or efficiency of its respective systems within the Project Area. Licensor and
all communication and utility companies, both public and private, which have existing
rights with respect to the Project Area as of the date of this Construction License shall at
all times have the rights, if any, contained in the instrument creating such right including,
without limitation, the right of ingress and egress to or from and upon the said Project
Area if such right is contained in such instrument. It is understood that this Construction
License creates a License only and that Licensee does not and shall not claim at any time
any interest or estate of any kind in the public rights-of-way located within the Licensed
Area by virtue of this License. The indemnity obligations set forth in this Construction
License also include any claims for damages that any utility or communication company,
whether publicly or privately owned, may sustain or receive by reason of Licensee's use
of the Project Area or the Project located thereon.
33. This Construction License shall be enforceable in Round Rock, Williamson County,
Texas, and if legal action is necessary by either party with respect to the enforcement of
any or all of the terms or conditions herein, exclusive venue for same shall lie in
Williamson County, Texas. This Construction License shall be governed by and
construed in accordance with the laws and court decisions of the State of Texas.
34. This Construction License contains the entire agreement between the parties relating
to its subject matter. Any oral representations or modifications concerning this
Construction License shall be of no force and effect. Any subsequent amendment or
modification must be in writing and agreed to by all parties.
35. This Construction License shall bind and inure to the benefit of the Licensee and any
successors or assigns of Licensee, and shall bind and inure to the benefit of the Licensor
and the Licensor's heirs, personal representatives, successors, and assigns.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed on this
19 day of DECOilAE,, 2003.
LICENSOR:
CITY OF ROUND
LICENSEE:
DELL COMPUTER HOLDINGS, L.P.
By: Dell Gen. P. Corp., its general partner
By:
LE AXWELL,
Mayor By:
Printed N e: r+y,�
lts: �TFY
ATTEST:
By:
Christine R. Martinez, City Secretary
APP EDFAS TO
1.
City Attorney
After Recording, Please Return To:
Sheets & Crossfield, P.C.
309 East Main
Round Rock, Texas 78664
Exhibit "A"
Depiction of Location of the portion of the Project
in the Greenlawn Boulevard right-of-way
. DEC -18-2003 THU 10:48 AM DSWMvK LLP FAX N0, 5124042235 PI 03/12
EXMff A
r---
I' 1 t 1� , ,ice^'. l f 1 I 1 I 1 I I t 1 1 1 I 1 •I
'� • i l l l L l I I
1
1 1 I 1 I I! I I I 1 1
�••1 y �^�� � ry; l l s s l r i l l I
333 ii fl .Ins7,=1 7m�.1
!I'ui 1 1 1 1 1 1 1 1 1 1
I l l l l r l
I p� u
I I 1 1 1 I I ' �...-1 � 11 1 J�i-+-1-i-i`•I'•I 1-Y
F•}-ri
I r l 1 1 1 1 1 1
1 • I I 1� I
y l l l 1
�ni 1
1{ NY •iW O[ Y bl
1 i �"n ms rw llrl
_+ 1 4• 1� , 1 1 1 1
�� Y�—l•i I-+ Fi—f•'inF..j.,�,� 1 —i 1 y i -j i !
1 1 1{ 1 � � ro
3 1 1 1, 1 1 1 x! I; 1^� � ` • ,, ,1 1 1 1 s l
f�
L
'
,
��-�
(rel
y
U i !
1
k -..w
y-w�W Y.•F i -it JrF'Hti•F �.' I
�--•
I i 1
1 1 t l l i; f i f l i i fl
m
___jj•�
� o i�
�_
�� I i
I
I
iii
i
l i l i i i i' I, I r l l l i l� � � f � � .•
1
CJ
Y. I
STATE FUGHWAY 46 i
0
. . DEC -18-2003 THU 10:48 AM DSWMvK LLP FAX N01 5124042235 P. 04/12
E
� 1 1 1 u•
�-y It Y�~� � �•!_i'W.'_1 �-i.-I.a.-hi_`.
1 1 1 1 1 1 , '� li � j �' 4 •'
i i i i i i f 1All
l i;
1 !
i1i 1 1 1 1 1 1 1 1 \p I I 1 t 1
t 1 I 1
I i ;
1,
^hy�ht-l-i-Fi-F+-Fd �}J ,t
r I 1 1
P - IJ,;,
i i; h1 �—_� n B
! 1 1 1 y 1, 1 1 1 1 1 I :--� t -^ NNy 1 ``pp u
„4��Lrr..,t _�J I 7 I -- 11 �jY'
-
t l; 1 1 I l i 1 1 1, 1 .•.'_ 1 1 Ir1 (J 1
I i i` LI 1
It 4 "; All
}• I
+end•� Q
1�--
'r+.l-i-tia-Ftp-.r-,..r.l-t 1 __
1 1 1 1
1-
1-y-i-i-Fi-
1
1i 1 I I I 1
4I I ,
r' I ► 1 I r
I I
1 1 1 I f l l I�ll
V -ii
i �
.61
SATE HIGHWAY 45
j 1
0