HomeMy WebLinkAboutRes 17-07 Authorizing the Town Manager to execute a lease ATT-Entrada DuctBank TOWN OF WESTLAKE
RESOLUTION NO. 17-07
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF WESTLAKE,
TEXAS, AUTHORIZING THE TOWN MANAGER TO EXECUTE A LEASE WITH
SOUTHWESTERN BELL TELEPHONE COMPANY D/B/A AT&T TEXAS ("AT&T")
TO UTILIZE TOWN OWNED TELECOMMUNICATIONS CONDUIT (DUCTBANK)
WITHIN THE ENTRADA MIXED-USE DEVELOPMENT.
WHEREAS, Southwestern Bell Telephone Company d/b/a AT&T Texas ("AT&T"),
desires to utilize telecommunications conduit from the Town of Westlake to serve the Entrada
mixed-use development; and
WHEREAS,the Town Council find that the leasing of telecommunication ductbank
conduit provides sound infrastructure planning consistent with goals and objectives within the
adopted strategic plan; and
WHEREAS,the Town Council authorize the Town Manager to execute a lease on behalf
of the Town of Westlake; and
WHEREAS,the Town Council finds that the passage of this Resolution is in the best interest of
the public.
NOW,THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF WESTLAKE,TEXAS:
SECTION l: All matters stated in the Recitals above are found to be true and correct
and are incorporated herein by reference as if copied in their entirety.
SECTION 2: The Town Council of the Town of Westlake hereby approves the Lease
with Southwestern Bell Telephone Company d/b/a AT&T Texas ("AT&T"), related to the use of
ductbank within the Entrada mixed-use development, attached as Exhibit "A", and further
authorizes the Town Manager to execute the lease on behalf of the Town of Westlake, Texas.
SECTION 3: If any portion of this Resolution shall, for any reason, be declared invalid
by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions
hereof and the Council hereby determines that it would have adopted this Resolution without the
invalid provision.
Resolution 17-07
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SECTION 4: That this resolution shall become effective from and after its date of
passage.
PASSED AND APPROVED ON THIS 27TH DAY OF FEBRUARY 2017.
Laura Wheat, Mayor
ATTEST:
VMa r
Kelly and own Secretary Tom Brymer,o1anager
APPROVED AS TO FO
OF
L. f nLokwy. ` Ow Attorney
Tz k AS
Resolution 17-07
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CONDUIT LEASE
ATTACHMENT A
Entrada Duct Bank Construction Plans
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CONDUIT LEASE
Between
TOWN OF WESTLAKE
And
SOUTHWESTERN BELL TELEPHONE COMPANY
D/B/A AT&T TEXAS ("AT&T").
Proprietary and Confidential
Resolution 17-07
CONDUIT LEASE
TABLE OF CONTENTS
ARTICLE 1: BASIC PROVISIONS ........................................................................... 3
ARTICLE 2: ADDITIONAL DEFINITIONS............................................................. 5
ARTICLE 3: TERM AND COMMENCEMENT........................................................ 5
ARTICLE 4: BASE RENT, RENEWAL AND RATE ADJUSTMENT.................... 5
ARTICLE 5: USE AND COMPLIANCE WITH LAWS............................................ 6
ARTICLE 6: INSURANCE, SUBROGATION, WAIVER OF CLAIMS................ 7
ANDIDEMNIFICATION........................................................................................... 7
ARTICLE 7: CASUALTY DAMAGE....................................................................... 8
ARTICLE 8: MULTI-DUCT AND CONDUIT........................................................ 10
ARTICLE 9: ASSIGNMENT AND SUBLETTING............................................... 10
ARTICLE 10: LANDLORD'S REMEDIES ............................................................ 10
ARTICLE 11: TENANT'S REMEDIES ................................................................... 11
ARTICLE 12: CONFIDENTIALITY AND PROPRIETARY INFORMATION..... 12
ARTICLE 13: REPRESENTATIONS AND WARRANTIES.................................. 13
ARTICLE 14: VENUE AND GOVERNING LAW.................................................. 14
ARTICLE 15: FORCE MAJEURE ........................................................................... 14
ARTICLE 16: ENTIRE AGREEMENT.................................................................... 14
ATTACHMENT A-ENTRADA DUCT BANK CONSTRUCTION PLANS........ 16
ATTACHEMENT B - DUCTBANK ACCESS PROCEDURES ............................. 17
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CONDUIT LEASE
THIS CONDUIT LEASE ("Lease") is made and entered into as of the
' day of J �fb(u jarX 17 by and between the Town of Westlake,
Texas (Landlord") and Southwestern Bell Telephone Company d/b/a AT&T Texas
("AT&T").
ARTICLE l: BASIC PROVISIONS
This Article contains the basic lease provisions between Landlord and Tenant.
A. Route: The route of the Conduit that is the subject of this
Lease is as indicated on Attachment "A", Entrada
Duct Bank Construction Plans.
B. Commencement of Lease: The Commencement Date for the Lease shall be as
follows,subject to adjustment based on any Landlord
delays in substantial completion of any Ductbank
segments not completed at the time of Lease signing.
C. Initial Term and 30 years
Expiration Date: Commencement Date plus 30 years
D. Rented Length: Parties agree that the rented length will be a
minimum of 14,000 linear feet and not more than
20,000 feet based on the attached Entrada Duct Bank
Construction Plans.
E. Size and Quantity: I single 4"conduit
F. Base Rent: $121,100.00 for Entrada
G. Permitted Use: Facilities may be placed in the Conduit by the Tenant
for the provisioning of communications and
telecommunications services, including voice, data,
video and internet services.
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H. Landlord: Town of Westlake, Texas
I. Landlord's Notice Address:
Town Manager
3 Village Circle
Suite 202, Solana
Westlake, TX 76262
With copies to:
Town Attorney
Town of Westlake
Boyle & Lowry, L.L.P.
4201 Wingren, Suite 108
Irving, TX 75062
J. Tenant: Southwestern Bell Telephone Company
d/b/a AT&T Texas ("AT&T").
K. Tenant's Notice Address:
ROW Department
13845 FAA Blvd.
Fort Worth, Texas 76155
L. Rent Payments: Lump Sum payment of$121,100.00.
M. Attachments: This Lease includes and incorporates by this
reference:
Attachment A: Entrada Duct Bank Construction
Plans
Attachment B: Ductbank Access Procedures
N. Substantial Completion: Substantial completion of all or a portion of the
construction of the Ductbank occurs when the
construction of the Ductbank is completed sufficient
to enable Tenant to install its facilities located in the
Conduit.
4. Non-exclusion: This is a non-exclusive Lease in that Landlord may
lease other ducts within the Ductbank to other
Tenants and Tenants may Lease ducts from other
parties within the jurisdiction of the Town of
Westlake as permitted by other Leases. Leases
entered into with other Tenants may not interfere in
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any manner with Tenant's ability to provide service
to its customers including increasing operational
burdens or costs. Leases between the Landlord and
its other Lessees must be competitively neutral and
non-discriminatory when compared to this Lease
provided however the lease rates may vary from
lease to lease based on different duct configurations.
ARTICLE 2: ADDITIONAL DEFINITIONS
A. Conduit: The term"conduit"refers to a four inch(4")or two inch(2")pipe located
within the Ductbank. The conduits leased under and pursuant to this Lease are identified
in Attachment "A", Entrada Duct Bank Construction Plans, and are referred to herein as
the"Conduit."
B. Cell: The term "cell" refers to a multi-duct inner-liner within a conduit. The cells
leased under and pursuant to this Lease are as indicated in Attachment "A", Entrada Duct
Bank Construction Plans, and are referred to herein as the "Cells."
C. Ductbank: A bank or collection of several Landlord-owned conduits routed from
manhole to manhole or pull box.
D. Facilities: The term"Facilities"refers to cables, wires and other appurtenances as
determined by Tenant which Tenant shall place in Conduit rented hereunder to provide
communications and telecommunications services.
ARTICLE 3: TERM AND COMMENCEMENT
A. Term: Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Conduit and/or Cells identified in Article 1, and described in Attachment"A",Entrada
Duct Bank Construction Plans, for the Term, subject to the other provisions of this Lease.
The term of this Lease shall commence on the Commencement Date and end at 11:59 PM
on the Expiration Date set forth in Article 1, unless sooner terminated as provided in this
Lease. This Lease may be renewed as provided for in Article 4.B.
ARTICLE 4: BASE RENT, RENEWAL AND RATE ADJUSTMENT
A. Base Rent: Tenant shall pay Landlord (i) the Base Rent set forth in Article 1 in
advance on or before the Commencement Date and yearly on the anniversary date, or (ii)
the one time lump sum base rent set forth in Article 1 in advance on or before the Execution
of the Lease. The Rate Adjustment set forth in Article 1 shall be applied to the base rent to
offset additional costs incurred by the Tenant.
B. Renewal: This Lease may be extended and renewed upon the written consent of
both the Landlord and the Tenant, and such consent shall not be withheld by the Landlord
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without a justifiable cause presented in writing to the Tenant.Tenant shall have a minimum
of 180 days from the receipt of such termination notice to discontinue its use of the
ductbank. Issues related to the Renewal Fee may be considered a justifiable cause for
withholding consent. Tenant may continue to occupy the Conduit leased hereunder after
expiration of this Lease and shall pay, subject to refund by the Landlord, a non-
discriminatory amount determined by the Landlord until any such disputed Renewal Fee
is resolved. Landlord shall refund any Renewal Fee paid by Tenant that is greater than the
resolved amount,plus interest at the current rate that Tenant is required to pay on customer
deposits, within 30 calendar days of such resolution of the Renewal Fee.
ARTICLE 5: USE AND COMPLIANCE WITH LAWS
A. Use of Conduit: Tenant shall use the Conduit only for the permitted use identified
in Articles 1 and 2, and no other purpose whatsoever,subject to the other provisions of this
Article and this Lease. Tenant may petition the Landlord to use the Leased Conduit for
other purposes, and if technologically feasible, approval shall not be unreasonably denied
by the Landlord.
B. Maintenance of Ductbank: Landlord shall at its sole cost maintain the physical
structure of the Ductbank, including manholes, and shall provide a clean and safe working
environment within the ductbank including the removal of water, mud, animals, insects
and other foreign matter, when manholes need to be accessed.
C. Protection of Tenant Facilities within Ductbank: Landlord shall use best efforts
to assure that Tenant's Conduit and Facilities within the Ductbank are protected from
damage by other tenants and to allow efficient access by the Tenant to its Facilities.
D. Compliance with Laws: The parties shall comply with all laws of the State of
Texas and the United States. Nothing in the Lease shall have the effect of eliminating or
altering the parties' requirements to comply with all of the ordinances of the Town of
Westlake, Chapter 283 of the Texas Local Government Code or Chapter 253 of the federal
Telecommunications Act. In the event this Lease,or any of it's provisions or the operations
contemplated hereunder, are found to be inconsistent with or contrary to any laws (now
existing or hereinafter enacted), the law will be deemed to control and, if commercially
practicable, this Lease will be regarded as modified accordingly and will continue in full
force and effect as so modified. If such modified Lease is not commercially practicable,
in the opinion of either party, then the parties agree to meet promptly and discuss any
necessary amendments or modifications to this Lease. If the parties are unable to agree on
necessary amendments or modifications in order to comply with any laws, then this Lease
may be terminated immediately by either party.
E. Access. During the Term, and any Extension Term, Landlord will provide Tenant
free and unrestricted access for ingress and egress, vehicles, construction materials and
equipment, to and from the Tenant's Conduit and Facilities within the Ductbank, 24 hours
a day, 7 days a week, 365 days a year, so that Tenant may perform installation, operation,
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maintenance, replacement, repair or operating improvement and equipment;
F. Landlord shall not permit or suffer any interference with Tenant's free and
unrestricted access and right to use Tenant's Conduit and Facilities within the Ductbank;
G. No litigation or governmental, administrative, or regulatory proceeding is pending,
proposed or threatened with respect to Tenant's Conduit and Facilities within the
Ductbank, including, without limitation, claims of third-parties;
H. Tenant's Conduit and Facilities within the Ductbank are free of any asbestos or
asbestos-containing materials and shall remain free throughout the Term and any Extension
Term;
ARTICLE 6: INSURANCE, SUBROGATION,WAIVER OF CLAIMS,
AND IDEMNIFICATION
A. Required Insurance: Each party shall maintain during the Term of the Lease:
Commercial general liability insurance, with limits of $1,000,000 for personal injury,
bodily injury or death, and property damage or destruction(including loss of use thereof),
combined single limit for one occurrence, and$2,000,000 in the aggregate per policy year,
with(a)for contractual liability coverage, and(b)inclusion of the other Party as additional
insured.
B. Certificates and Other Matters: Each Party shall provide the other with
certificates evidencing the coverage required hereunder prior to the commencement Date,
or Tenant's entry to the Ductbank, whichever first occurs. Tenant shall provide at least
thirty days' advanced written notice to landlord of any cancelation or non renewal of any
required coverage that is not replaced. Landlord and Tenant shall provide renewal
certificates to the other prior to expiration of such policies. Except as provided to the
contrary herein, any additional insurance carried by Landlord or Tenant shall be for the
sole benefit of the party carrying such insurance. All insurance required hereunder shall be
provided by responsible insurers eligible to do business in the State of Texas and shall
have a general policy holder's rating of at least A- (A minus) and a financial rating of at
least [VII] in the then current edition of Best's Insurance Reports. Each Party disclaims
any representation as to whether the foregoing coverage will be adequate to protect Tenant.
C. Self Insurance: The parties to this Lease acknowledge that Tenant may satisfy all
requirements of Article 6 by maintaining and providing written evidence to the Landlord
of a program of self insurance as permitted by the laws of the State of Texas.
D. Landlord's Liability to Tenant: Landlord's liability to Tenant, if any, for
damages alleged pursuant to the obligations, terms, and conditions of this Lease, shall not
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exceed the insurance amounts in Article 6, Section A, hereto. Nothing contained in this
Lease shall waive Landlord's defenses or immunities under Section 10 1.00 1 et seq. of the
Texas Civil Practice and Remedies Code or other applicable statutory or common law.
E. Tenant's Liability to Landlord: Tenant's liability to Landlord, if any, for
damages alleged pursuant to the obligations, terms, and conditions of this Lease, shall not
exceed the insurance amounts in Article 6, Section A, hereto. Nothing contained in this
Lease shall waive Tenant's defenses or immunities under the Texas Civil Practice and
Remedies Code or other applicable statutory or common law.
ARTICLE 7: CASUALTY DAMAGE
A. Restoration:
(1) The parties shall promptly notify each other of any damage to the Ductbank
by fire, trenching equipment, or other casualty. If the Ductbank or any of
its appurtenances are damaged by fire or other casualty, Landlord shall use
available insurance proceeds to restore the same. Landlord will, in a
reasonable amount of time, make every reasonable attempt to restore the
Ductbank to substantially the same condition as prior to the casualty.
(2) In case of damage to the Ductbank, Landlord will make every reasonable
attempt to promptly restore the Ductbank. Where Tenant or any of their
agents, employees, or contractors were the sole cause of the damage, the
Tenant shall pay 100% of the reasonable, actual and direct cost of
restoration including but not limited to straight time labor, overtime labor,
materials, material expediting fees, and supervision. If Landlord does not
initiate repairs within one (1) hour and complete such repairs in a timely
manner, Tenant may begin such repairs itself and Landlord agrees to
reimburse Tenant the reasonable cost of all such repairs.
(3) When damage to the Ductbank by casualty has occurred, and when notice
and coordination are practicable, the parties shall coordinate repair and
other work operations in emergency situations involving service
disruptions.Disputes will be immediately resolved at the site by the affected
parties present in accordance with the following principles:
a. Emergency service restoration work requirements shall take precedence
over other work operations.
b. Except as otherwise agreed upon by the parties, restoration of lines
necessary to alleviate life-threatening situations shall be given the
highest priority. Secondary priority shall be give to restoring lines for
emergency service providers (e.g., 911, fire, police, and national
security and hospital lines). Third priority shall be given to restoring lit
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fibers of the local service providers, on a rotating basis.. The parties
shall exercise good faith in assigning priorities, shall base their
decisions on the best information then available to them at the site in
question, and may, by mutual agreement at the site, take other factors
into consideration in assigning priorities and sequencing service
restoration activities.
c. Landlord shall determine the order of precedence of work operations
only if the affected parties present are unable to reach prompt
agreement; provided, however, that these decisions shall be made by
Landlord on a nondiscriminatory basis in accordance with the principles
set forth in this section.
B. Termination of Lease by Landlord: Notwithstanding the foregoing to the
contrary, in lieu of performing the restoration work, Landlord may in the event of a total
casualty, elect to terminate this Lease by notifying Tenant in writing of such termination
within thirty (30) days after the date of damage (such termination notice to include a
termination date providing not less than thirty(30) days notice to Tenant). Landlord shall
provide a reasonably comparable location within the public right-of-way to relocate those
portions of Tenant's facilities that are not accessible or useable by termination. Such
reasonable location not include a ductbank, conduit or cells, but, only a physical location
in the public right-of-way. In such case, the Tenant shall be entitled to a refund of the
prorated portion of the pre-paid rent paid hereunder by Tenant in advance.
C Termination of Lease by Tenant: Notwithstanding Paragraph B above, Tenant
may terminate this Lease if Tenant is unable to use all or a substantial portion of the leased
Ductbank as a result of fire or other casualty not caused by Tenant or its employees or
agents, and (i) such work is estimated to take more than fifteen(15) days, or(ii) Landlord
fails to substantially complete restoration work within thirty (30) days from the date the
casualty occurred. In order to exercise any of the foregoing termination rights,Tenant must
send Landlord at least fifteen(15)days advance notice specifying the basis for termination,
and such notice must be given no later than thirty (30) days following the occurrence of
the condition serving as the basis for the termination right invoked by Tenant. Upon receipt
of termination notice from the Tenant,Landlord shall provide the Tenant with a reasonably
comparable location within the public right-of-way for the Tenant to relocate its facilities.
Such termination rights shall not be available to Tenant if: (a) Landlord substantially
completes their repairs to the Ductbank within Landlord's thirty (30) day period to
substantially complete restoration to the damaged portion of the Ductbank, or(b) Landlord
permanently provides Tenant with reasonably comparable alternate ducts within the
Ductbank route or an alternate route reasonably acceptable to Tenant. Landlord shall
reimburse the Tenant the greater of the cost to relocate any Facilities or a prorated portion
of the lease payment made in advance.
D. Permits: Landlord shall expedite approval of any required permits due to
termination of Lease by either party provided that Tenant complies with all applicable
local, state and federal requirements.
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ARTICLE 8: MULTI-DUCT AND CONDUIT
Tenant shall conduct a physical inspection of the Conduit prior to accepting the Conduit
and installing its Facilities. Once Tenant accepts the Conduit, Tenant accepts the Conduit
"as-is." Tenant may install cells, at its discretion, at no cost to the Landlord, subject to
submittal of Tenant's plans and specifications for written approval by Landlord.
ARTICLE 9: ASSIGNMENT AND SUBLETTING
A. Transfers: Tenant shall have the right to assign this Lease, provided Tenant
notifies Landlord, to (i) an entity which controls, is controlled by or is under common
control with Tenant, or(ii)to any entity which succeeds to substantially all of its assets or
equity of Tenant,and the assignee executes an agreement assuming this Lease. In addition,
notwithstanding anything to the contrary contained herein, Tenant shall have the right to
allow third parties the right to transmit signals and/or data over or otherwise use Tenant's
Facilities.
B. With respect to all other transfers or assignments of this Lease, Tenant shall not,
without the prior written consent of Landlord, which consent will not be unreasonably
withheld or delayed by Landlord, assign, mortgage, pledge, hypothecate, encumber, or
permit any lien to attach to, or otherwise transfer, this Lease or any interest hereunder.'
C. Tenant shall notify Landlord of any such transfer or assignment in writing, which
notice shall include: (a) the effective date of the transfer or assignment, (b) the portion of
the Conduit to which the Lease transfer or assignment applies, (c)the name, address, and
background information concerning the proposed Transferee, (d) an assignment and
assumption agreement signed by the Transferee, whereby the Transferee assumes all
obligations,terms,and conditions of this Lease relating to the assigned Conduit,and(e)the
nature of Transferee's business and proposed use of the Conduit, if different from the
Tenant's. Any transfer made without complying with this Article shall, at Landlord's
option, be null, void, and of no effect, or shall constitute a Default under this Lease.
D. There shall be no additional compensation demanded or authorized by the Landlord
for any Transfer or Assignment of this Lease from either the Tenant or the Transferee that
is not specifically addressed in this lease.
ARTICLE 10: LANDLORD'S REMEDIES
A. Default: Either party shall be in default hereunder in the event such party has not
begun and pursued with reasonable diligence the cure the breach of this Lease within thirty
(30) days of the receipt of written notice from the other party of the breach.
B. Remedies:
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(1) Upon the occurrence of any uncured material event or events of default,
whether enumerated in this paragraph or not, the non-defaulting party shall
have the option to pursue any one or more of the following: (i) terminate
this Lease (Tenant's right of use, entry and possession may be terminated
only by detainer suit, summary proceedings or other lawful means), (ii)
perform whatever obligations the other party is obligated to perform under
the terms of this Lease,and to the defaulting party shall reimburse the other
party for any reasonable expenses incurred in performing the defaulting
party's obligations, (iii) recover any unpaid rent or on a pro-rata basis any
pre-paid rent,as the case may be as of the date use is terminated,(iv)recover
any unpaid rent which thereafter accrues during the Term from the date use
is terminated through the time of judgment (or which may have accrued
from the time of any earlier judgment obtained by Landlord), less any
consideration received from replacement tenants, (v) recover any other
reasonable amounts necessary to compensate the non-defaulting party for
all damages proximately caused by defaulting party's failure to perform its
obligations under this Lease,including reasonable attorney's fees and costs.
(2) In the event one party terminates the other party's right of use pursuant to
this Article,Tenant agrees to remove its facilities within ninety(90)days of
termination, or as soon as reasonably practical, if demanded by the
Landlord. Should Tenant fail to remove facilities, Landlord may, at the
Tenant's expense, remove Tenant's facilities from the Ductbank.
(3) NEITHER PARTY SHALL BE LIABLE TO OTHER FOR INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST
PROFITS AND LOST REVENUES.
ARTICLE 11: TENANT'S REMEDIES
A. Default: Landlord shall be in default hereunder in the event Landlord has not
begun and pursued with reasonable diligence the cure of any failure of Landlord to meet
its obligations hereunder within thirty(30)days of the receipt by Landlord of written notice
from Tenant of the alleged failure to perform.
B Remedies: Upon the occurrence of any event or events of default by Landlord,
whether enumerated in this paragraph or not, Tenant shall have the option to pursue any
one or more of the following: (i) termination of this Lease; and (ii) exercising all other
remedies available to Tenant at law or in equity, including without limitation, injunctive
relief of all varieties. Notwithstanding the foregoing, if(i) Landlord's default hereunder
creates an emergency or creates conditions which if uncured will impair or impede
Tenant's ability to provide telecommunications services, and (ii) Landlord has not
commenced or does not diligently proceed to cure such default,then Tenant may,after two
(2) business day's written notice to Landlord, take whatever actions are necessary to
commence curing the default(s), and Landlord agrees to reimburse Tenant for any
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reasonable expenses incurred in effecting compliance with Landlord's obligations,
including reasonable attorney's fees and costs.
ARTICLE 12: CONFIDENTIALITY AND PROPRIETARY INFORMATION
A. In connection with this Lease, either party may furnish to the other certain
information that is marked or otherwise specifically identified as proprietary or confidential
("Confidential Information"). This Confidential Information may include, among other
things, private easements, licenses, utility agreement Leases, permits, other right-of-way
granting documents, specifications, designs, plans, drawings, data, prototypes, and other
technical and/or business information. For purposes of this Section,the party that discloses
Confidential Information is referred to as the"Disclosing Party"and the party that receives
Confidential Information is referred to as the "Receiving Party". If the Receiving Party is
the Landlord, the Landlord shall fully comply with the Texas Public Information Act
(formerly the "Texas Open Records Act"), including requesting a decision from the
Attorney General regarding the confidentiality of the requested Confidential Information,
to protect the release of confidential or proprietary information, and will promptly notify
the Disclosing Party of such request for disclosure.
B. When Confidential Information is furnished in tangible form, the Disclosing Party
shall mark it as proprietary or confidential. When Confidential Information is provided
orally, the Disclosing Party shall, at the time of disclosure or promptly thereafter, identify
the Confidential Information as being proprietary or confidential.
C. With respect to Confidential Information disclosed under this Lease,the Receiving
Party and its employees shall:
(1) To the extent allowed by law, hold the Confidential Information in
confidence using procedures no less stringent than those used with respect
to its own proprietary, confidential and private information of a similar
nature, subject to the terms of this Lease. For the purpose of this Article 12,
Landlord shall comply with any ruling made by the Texas Attorney General
pursuant to the Texas Public Information Act. Landlord shall not be
required to take any action beyond this section to keep information
confidential;
(2) Restrict disclosure of the Confidential Information solely to those of its
employees who have a need to know in connection with the performance of
this Lease,and not disclose the Confidential Information to any other person
or entity except as required by law;
(3) Advise those employees of their obligations with respect to the Confidential
Information;
(4) Use the Confidential Information only in connection with the performance
of this Lease,except as the Disclosing Party may otherwise agree in writing
except as allowed by law;
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(5) Promptly notify the Disclosing Party of the request for the Confidential
Information
D. Upon written request of the Disclosing Party, the Receiving Party shall return all
Confidential Information received in tangible form, except that each party's legal counsel
may retain one copy in its files solely to provide a record of such Confidential Information
for archival purposes. If the Receiving Party loses or makes an unauthorized disclosure of
Confidential Information, it shall notify the Disclosing Party and use reasonable efforts to
retrieve the Confidential Information.
E. The Receiving Party shall have no obligation to preserve the proprietary nature of
Confidential Information which:
(1) was previously known to the Receiving Party free of any obligation to keep
it confidential; or
(2) is or becomes publicly available by means other than unauthorized
disclosure; or
(3) is developed by or on behalf of the Receiving Party independently of any
Confidential Information furnished under this Lease; or
(4) is received from a third party whose disclosure does not violate any
confidentiality obligation.
F. Unless required by law, neither party shall disclose the other party's customer
Confidential Information to any third party (even if under contract to that party) or to any
personnel of the party responsible for publicity or for end user sales or marketing.
G. If the Receiving Party is required to disclose the Disclosing Party's Confidential
Information by an order or lawful process of a court or governmental body, the Receiving
Party shall promptly notify the Disclosing Party, and shall cooperate with the Disclosing
Party in seeking reasonable protective arrangements before the Confidential Information is
produced.
ARTICLE 13: REPRESENTATIONS AND WARRANTIES
A. Each party represents and warrants that: (i) it has full right and authority to enter
into, execute,deliver,and perform its obligations under this Lease; and(ii)its execution of
and performance under this Lease shall not violate any applicable existing regulations,
rules, statues or court orders of any local, state or federal governmental agency, court or
body.
B. Landlord further represents and warrants that: (i)it has all rights and authorizations
necessary to construct the Ductbank and to lease Conduit to Tenant; (ii)that it has obtained
any and all real property rights necessary to install the Ductbank and to enter upon the
property on which the Ductbank is located, and to permit Tenant to enter. Landlord shall
use best efforts to maintain such rights throughout the Term. If Landlord fails to obtain
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and/or cause to remain effective throughout the term of this Lease all required real property
rights necessary for Tenant's use of the Ductbank,Tenant may terminate the Lease,without
further obligation, by giving the Landlord thirty (30) days written notice. In the event of
such termination, Landlord shall provide a reasonably comparable location within the
public right-of-way to relocate those portions of Tenant's Facilities that are not accessible
or useable as a result of such a termination. Such reasonable location may not include a
ductbank, conduit or cells, but, only a physical location in the public right-of-way. In such
case, the Tenant shall be entitled to a refund of the prorated portion of the lease payment
made in advance.
ARTICLE 14: VENUE AND GOVERNING LAW
This Lease shall be governed by the laws of the State of Texas and any applicable Federal
law. This Lease will be enforceable in Tarrant County, Texas; if legal action is necessary
to enforce this Lease, venue will lie in Tarrant County, Texas, with the U.S. District Court
for the Northern District of Texas, or with any regulatory body of competent jurisdiction;
e.g., the Public Utility Commission of Texas, the Federal Communications Commission.
ARTICLE 15: FORCE MAJEURE
Neither Landlord or Tenant, as the case may be, shall be liable or responsible for any
damages or delays in performance due to strikes, riots, acts of God, any act of terror or
civil disturbance, shortages of labor or materials, war, or any other cause whatsoever
beyond the control of Landlord or Tenant, as the case may be.
ARTICLE 16: ENTIRE LEASE
This Lease,together with the Attachments and other documents listed in Article 1 (WHICH
ARE HEREBY COLLECTIVELY INCORPORATED HEREIN AND MADE A PART
HEREOF AS THOUGH FULLY SET FORTH), contains all the terms and provisions
between Landlord and Tenant relating to the matters set forth herein and no prior or
contemporaneous Lease or understanding pertaining to the same shall be of any force or
effect, except for any such contemporaneous written Lease specifically referring to and
modifying this Lease and signed by both parties.TENANT HAS RELIED ON TENANT'S
INSPECTIONS AND DUE DILIGENCE IN ENTERING THIS LEASE, AND NOT ON
ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED,
CONCERNING THE CONDITION OR SUITABILITY OF THE DUCTBANK FOR
ANY PARTICULAR PURPOSE OR ANY OTHER MATTER NOT EXPRESSLY
CONTAINED HERE. This Lease, including the Exhibits referred to above, may not be
modified, except in writing signed by both parties. Without limitation as to the generality
of the foregoing, Tenant hereby acknowledges and agrees that Landlord's leasing agents
and field personnel are only authorized to show the Ductbank and potential routes and
negotiate terms and conditions for leases subject to Landlord's final approval, and are not
authorized to make any Leases, representations, understandings or obligations binding
upon Landlord respecting the condition of the Ductbank, suitability of the same for
Tenant's business, or any other matter, and no such Leases,representations,understanding
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or obligations not expressly contained herein or in such contemporaneous Lease shall be
of any force or effect. IN WITNESS WHEREOF, the Parties have executed this Lease as
of the date first set forth above.
LANDLORD: TOWN OF WESTLAKE, TEXAS
By: ,
Thomas E. ryme , TowfPvranager
TENANT: Southwestern Bell Telephone Company
d/b/a AT&T Texas ("AT&T").
W4��
CERTIFICATE
I, , as
of the aforesaid Tenant,hereby certi that th 'n ividual(s)executing the foregoing Lease
on behalf of Tenant was/were du�lY "horized to act in his/their capacities as set forth
above, and his/their actions r- 'e the acts of Tenant.
f-
(Corporate Self)
p,.
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SOUTHWESTERN BELL TELEPHONE COMPANY
ASSISTANT SECRETARY'S CERTIFICATE
1, Paul M. Wilson, Assistant Secretary of Southwestern Bell Telephone Company d/b/a
AT&T Texas (the"Company"), a Delaware corporation,do hereby certify that I am a duly
appointed, qualified and acting Assistant Secretary of the Company and as such I am authorized
to execute this certificate. In such capacity, I further certify that:
Jeffrey M. May is authorized and empowered to execute and deliver in the name
of and on behalf of the Company that certain Conduit Lease between the Town of
Westlake,Texas ("Landlord")and the Company ("Tenant")with respect to conduit
subject to this agreement.
IN WITNESS WHEREOF, the undersigned has affixed his signature this 24th day of
February, 2017.
41
0310e
1a
+,:tea ••. @'; Paul M. Wilson, Assistant Secretary
CONDUIT LEASE
ATTACHMENT A
Entrada Duct Bank Construction Plans
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ATTACHMENT B
Operations approves of these procedures
DUCTBANK ACCESS PROCEDURES
Town of Westlake Procedure No.: 5.3 Page:
NOC Procedures DRAFT
Prepared by: B. Eisenrich Date:
Procedure: Approved:
DUCTBANK ACCESS
Revision Date: Revision:
3.1.1 SCOPE
This procedure defines the means and methods of access the Town's ductbank system.
3.1. 2 RESPONSIBLITIES
The Landlord or his designee is responsible for establishing, approving, and managing an
organization to operate an access request system and provide escort services during
tenant access to the ductbank system
3.1.3 PROCEDURE
3.1.3.1 GENERAL
All access to the ductbank system must be granted through the means of an Access
Request. Upon granting of access to a point in the ductbank system, an authorized
representative of the Town must observe tenant access at all times.
In an emergency situation Tenant, after attempting to notify the Landlord or his designee,
is permitted to access the ductbank in order to begin emergency repairs without an
Access Request. The Landlord or his designee will provide access within one (1)hour of
notification by Tenant of the emergency condition.
3.1.3.2 AUTHORIZED ACCESS LIST
The Landlord or his designee is responsible for maintaining an Authorized Access List
for Tenants and Tenant's subcontractors including emergency contact phone numbers,
pager numbers, etc. The Tenant is responsible for providing up to date information,
revisions, and corrections to the Landlord or his designee.
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3.13.2. ACCESS REQUEST
Except in an emergency situation, an access request form must be filled out and
submitted to the Landlord or his designee prior to accessing the ductbank system. The
access request form shall include the following:
1. Name and Company of requester,.
2. Name of Company representing if requestor is a subcontractor.
3. Authorizing contact for Tenant.
4. Date and time of request.
5. Date and Time access is needed.
6. Reason for access.
7. Traffic control plan where access points are in or near roadways.
8. Where there is Restricted Entry, a safety and emergency plan shall be included.
See Exhibit 3.1.3.-1 -Access Request Form
In an emergency situation only, Tenant shall call the Town of Westlake at (817) 680-
1422. This number may be changed as appropriate by written notice to Tenant.
Town of Westlake Procedure No.: 5.3 Page:
NOC Procedures DRAFT
Prepared by: B. Eisenrich Date:
Procedure: Approved:
DUCTBANK ACCESS
Revision Date: Revision:
3.1.2.2. APPROVAL
Once an access request is received by the Landlord or his designee,the Landlord or his
designee shall verify the validity of the access request. This shall only include verifying
the requestor against the Authorized Access List. If the requestor is on the authorized
list,the requestor shall be granted access.
If the requestor is not on the authorized Access List, Landlord or his designee shall
contact the Tenant's representative for written authorization prior to granting access.
In the event of an emergency, if notice by Tenant is practical under the circumstances, the
Landlord or his designee may grant access to non-authorized personnel upon verbal
authorization of the Tenant's emergency contact.
The Landlord or his designee shall provide access within two (2)hours during normal
business hours (8am—5 pm Monday-Friday, excluding published Landlord holidays) and
within one (1)hour during emergency restoration requirements.
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3.1. 3.4 ESCORT
The Tenant's representative performing work shall be escorted at all times by an
authorized representative of the Town. The Town representative shall be responsible for
witnessing that the persons requiring access work on only the proper media at the access
point. The Escort may not in any way inhibit the Tenant's employee(s) or contractor(s)
from performing work.
3.1.3.5 RESTRICTED ENTRY
In accordance with State and Federal Occupational and Safety Laws, access to manholes
within the system is considered Restricted Entry. As such, Tenant's representatives shall
follow all State and Federal requirements for Restricted Entry. The granting of access by
the Town also grants restricted access. However, the Town does not assume
responsibility or liability for Tenant's representatives' health and welfare. Job safety is
the responsibility of the Tenant's representative's health and welfare. Job safety is the
responsibility of the Tenant's representative. Landlord shall be responsible for
maintaining the ductbank in a safe condition as well as providing a clean and safe work
area within the ductbank.
Town personnel are authorized to enter manholes. Town personnel will monitor work in
manholes from the surface. Town personnel are prohibited from performing any
maintenance, repair, or other activity to, or affecting, the Tenant's facilities within the
ductbank.
3.1.3.6 WORK ON CABLES
The Town's representative shall log all personnel involved, start time, end time and any
other information that may be deemed necessary.
3.1.4 EXHIBITS
3.1.3.-1 Access Request Form
3.1.3.-2 Ductbank Access Observation Form
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