HomeMy WebLinkAboutRes 11-17 Authorizing the Negotiations and Ductbank Lease with Charter Communications TOWN OF WESTLAKE
RESOLUTION NO. 11-17
A RESOLUTION OF THE TOWN COUNIL OF THE TOWN OF WESTLAKE, TEXAS,
AUTHORIZING THE TOWN MANAGER TO NEGOTIATE AND ENTER INTO A
CONTRACT WITH CHARTER COMMUNICATIONS, FOR THE USE OF THE
TOWN'S TELECOMMUNICATION DUCTBANK.
WHEREAS, Charter Communications, desires to lease telecommunications conduit from
the Town of Westlake to provide service to Town of Westlake facilities and to Deloitte
University; 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 negotiate the terms of
the lease and execute a contract 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: That, all matters stated in the Recitals hereinabove are found to be true
and correct and are incorporated herein by reference as if copied in their entirety
SECTION 2: That, the Town Council of the Town of Westlake, Texas, hereby approves
the Town Manager to negotiate the terms of the lease agreement and execute said agreement
attached as Exhibit "A" on behalf of the Town of Westlake, Texas with Charter
Communications.
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 11-17
Page 1 of 2
SECTION 4; That this resolution shall become effective from and after its date of
passage.
PASSED AND APPROVED ON THIS 13TH DAY OF JUNE 2011
,SOW N OPS F .
ATTEST: �• d.t.� ,; ie-
N� Laura L. Wheat, Mayor
iLl
:J
S....
Kell Edw , Town Secret_ Thomas E. Brymq, Town Manager
i.
APPROVED AS TO FO
L. tanton Lowy, wn A orney
Resolution 11-17
Page 2 of 2
CONDUIT LEASE
Between
TOWN OF WESTLAKE
And
CHARTER FIBERLINK TX-CCO,LLC
Proprietary and Confidential
11/4/2011
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,
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 ............................................................ 11
ARTICLE 11: TENANT'S REMEDIES ................................................................... 12
ARTICLE 12: CONFIDENTIALITY AND PROPRIETARY INFORMATION..... 12
ARTICLE 13: REPRESENTATIONS AND WARRANTIES.................................. 14
ARTICLE 14: VENUE AND GOVERNING LAW.................................................. 14
ARTICLE 15: FORCE MAJEURE............................................................................ 15
ARTICLE 16: ENTIRE AGREEMENT.................................................................... 15
ATTACHMENT A-MASTER RATE SCHEDULE................................................ 17
ATTACHEMENT B -DUCTBANK ACCESS PROCEDURES ............................. 18
ATTACHMENT C -DUCTBANK ROUTING DRAWINGS AND DETAILS .... 21
Page 2 of 21
Proprietary and Confidential
11/4/2011
CONDUIT CEASE
THP)V
CONDUIT LEASE ("Lease") is made and entered into as of the 2-I day
of z�rtlx-i- 2011, by and between the Town of Westlake, Texas (Landlord") and
Charter Fiberlink TX-CCO,LLC.
ARTICLE 1:BASIC PROVISIONS
This Article contains the basic lease provisions between Landlord and Tenant.
A. Route: See"Attachment C"
B. Commencement of Lease: Landlord letter of acceptance of Tenant's completed
facility installation.
C. Initial Term and 5 years
D. Rented Length: 3,599 LF
E. Size and Quantity: 2"conduit
F. Rent: $13,740.98
G. Permitted Use: Facilities (as defined in Article 2) may be placed in
the Conduit by Tenant for the provisioning of
communications and telecommunications services,
including voice, data, video and internet services.
Page 3 of 21
Proprietary and Confidential
11118/2011
CONDUIT LEASE
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:
Charter Fiberlink TX-CCO, LLe
c/o Charter Communications,Inc.
Attn: Corporate Contracts Management
12405 Powerscourt Drive
St. Louis,MO 63131
Telephone 314-288-3470
K. Tenant's Notice Address: Same as above
With copies to:
N/A
L. Attachments: This Lease includes and incorporates by this
reference:
Attachment A: Master Rate Schedule
Attachment B: Ductbank Access Procedures
Attachment C: Ductbank Routing Drawings and
Details
M. Tenant Construction: If Tenant finds sections of the route that do not
contain existing innerduct, Tenant may place one
Page 4 of 21
Proprietary and Confidential
11/4/2011
CONDUIT LEASE
(1) 1.25" innerduct in the existing 4" Conduit.
Tenant will occupy one (1) 1.25"inner-duct.
N. Non-exclusion: This is a non-exclusive lease in that Landlord may
lease other ducts within the Duetbank 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
any manner with Tenant's rights under this Lease
and its ability to provide service to its customers
including increasing operational burdens or costs.
Leases between Landlord and its other tenants 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 on the drawings in Attachment"C" 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 on the drawings in
Attachment"C" 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 may place in the 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 or Cells identified in Article 1, and described in Attachment "C" for the
Term, subject to the other provisions of this Lease. The Term 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 4.13.
ARTICLE 4: BASE RENT,RENEWAL AND RATE ADJUSTMENT
Page 5 of 21
Proprietary and Confidential
11/4/2011
CONDUIT LEASE
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(F) in advance on or before the
Commencement Date of the Term and the Commencement Date of each exercised
Renewal Term.
B. Renewal: Unless Tenant is in default under the terms of this Lease,
Tenant shall have the option to extend the Term for three (3) consecutive renewal
periods of five (5) years each (each, a "Renewal Term"). Tenant shall exercise
each option by sending written notice to Landlord no later than ninety (90)
calendar days prior to the expiration of the Term or then applicable Renewal
Term, as the case may be. All terms and conditions of this Lease shall be
applicable during any Renewal Term(s).
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 Landlord to use the Conduit
for other purposes, and if technologically feasible, approval shall not be unreasonably
withheld, delayed or denied by 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, so that manholes can be accessed.
C. Protection of Tenant Facilities within Ductbank: Landlord shall its use best
efforts to assure that Tenant's Conduit and Facilities within the Ductbank are protected
from damage by Landlord and by other tenants and to allow efficient access by 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 its 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.
Page 6 of 21
Proprietaay and Confidential
11/4/2011
CONDUIT LEASE
ARTICLE 6: INSURANCE,SUBROGATION,WAIVER OF CLAIMS,
AND IDEMNIFICATION
A. Required Insurance: Each party shall maintain during the Term, and any
renewals or extensions thereof: Commercial general liability insurance, with limits of
$1,000,000 for, bodily injury or death, and property damage, combined single limit for
one occurrence, and $2,000,000 in the aggregate per policy year, to include: (a)
contractual liability with standard insurance carrier exclusions, and (b) including the
other Party as additional insured. Landlord's property damage insurance shalt cover the
Ductbank and appurtenances to the extent provided or paid for by Landlord, and shall be
in the amount of full replacement cost.
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 is the later occurrence. Landlord
and Tenant agree to provide notice of cancellation. The notice of cancellation does not
include a notice of cancellation for nonpayment of premium. It is the responsibility of
each party to provide the other with a valid contact name and e-mail address for
notification of cancellation. Landlord and Tenant shall provide renewal certificates to the
other within thirty (30) days following expiration of such policies. Except as provided to
the contrary herein, any 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 licensed in the State of Texas and shall have been issued
having 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 acknowledge that Tenant may satisfy all
requirements of this Article 6 by maintaining and providing written evidence to Landlord
of a program of self insurance as permitted by the laws of the State of Texas.
D. General Indemnity Provisions: Except to the extent caused by Landlord's gross
negligence or willful misconduct, Tenant agrees to indemnify, defend and hold harmless
Landlord and all of its officials, officers, agents, consultants, employees and invitees in
their public capacities, from any and all liability, claims, suits, demands or causes of
action, including all expenses of litigation and/or settlement which may arise by injury to
property or person caused by the gross negligence or willful misconduct of Tenant, its
officers, agents, consultants, employees or invitees (collectively, the "Tenant Parties"),
arising out of or in connection with the this Lease. Tenant will at its own cost and
expenses defend and protect Landlord and all of its officials, officers, agents, consultants,
employees and invitees in both their public and private capacities (collectively, the
"Town Parties"), from any and all such claims and demands. Also, Tenant agrees to and
shall indemnify, defend and hold harmless the Town Parties, from and against any and all
claims, losses, damages, causes of action, suit and liability of any kind, including all
reasonable expenses of litigation, court costs and attorneys' fees for injury to or death of
any person or for any damage to any property arising out of or in connection with the
Page 7 of 21
Proprietary and Confidential
11/412011
CONDUIT LEASE
error, omission, intentional or negligent acts of Tenant Parties under this Lease or any
and all activity or use pursuant to this Lease. The foregoing shall not be applicable to
that which is attributable to the negligence or willful misconduct of Landlord, its
employees or contractors, or the Town Parties. Nothing contained in this Lease shall
waive Landlord's defenses or immunities under Section 101.001 et seq. of the Texas
Civil Practice and Remedies Code or other applicable statutory or common law. Each
party shall promptly notify the other party of any alleged claims and will fully cooperate
with each other in the defense of any such claim.
E. 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
exceed the insurance amounts set forth in Article 6, Section A, hereto. Nothing contained
in this Lease shall waive Landlord's defenses or immunities under Section 101.001 et
seq. of the Texas Civil Practice and Remedies Code or other applicable statutory or
common law.
F. 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 set forth 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, snake 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 its
agents, employees, or contractors, were the sole cause of the damage,
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 of the damage and complete such
repairs in a timely manner, Tenant may begin such repairs itself and
Landlord agrees to reimburse Tenant the reasonable costs incurred by
Tenant for all such repairs.
Page 8 of 21
Proprietary and Confidential
11/4/2011
CONDUIT LEASE
(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 given 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
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 competitively neutral and 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 ten (10) 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 such a
termination. Such reasonable location will not include a ductbank, conduit or cells, but,
only a physical location in the public right-of-way for Tenant's installation of its own
replacement conduit(s). In such case, Tenant shall be entitled to a refund of the prorated
portion of any pre-paid rent.
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, or (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
Page 9 of 21
Proprietary and Confidential
11/4/2011
CONDUIT LEASE
following the occurrence of the condition serving as the basis for the termination right
invoked by Tenant. Upon receipt of a termination notice from Tenant, Landlord shall
provide Tenant with a reasonably comparable location within the public right-of-way for
Tenant to relocate its Facilities. Such termination rights shall not be available to Tenant
if: (a) Landlord decides to substantially complete its repairs to the Ductbank within a
thirty (30) day period to substantially a complete restoration to the damaged portion of
the Ductbank such that the Ductbank is again usable as originally contemplated by
Tenant, or (b) within a thirty (30) day period Landlord permanently provides Tenant
with reasonably comparable alternate ducts within the Ductbank route or an alternate
route reasonably acceptable to Tenant. Landlord shall reimburse 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 required to
use the Ductbank or any required permits resulting from the termination of this Lease by
either party provided that Tenant complies with all applicable local, state and federal
requirements.
ARTICLE S: MULTI-DUCT AND CONDUIT
Tenant shall be responsible for conducting all required physical inspections of the
Conduit prior to accepting the Conduit and installing its Facilities. Tenant may install
Cells, at its discretion, at no cost to Landlord, subject to submittal of Tenant's plans and
specifications for prior written approval by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed.
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, delayed or denied 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
Page 10 of 21
Proprietary and Confidential
11/4/2011
CONDUIT LEASE
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
Tenant's. Any transfer made without complying with this Article 9 (C) items(a), (b), (c)
and (e) shall, at Landlord's option, be null, void, and of no effect,or shall constitute a
default under this Lease and any transfer made without complying with Article 9 (C) item
(d) shall only make said transfer null, void, and of no effect if, after having received
thirty (30) days written notice,Tenant fails to fulfill its Article 9 (C)item (d)obligations
within said thirty (30) days.
D. There shall be no additional compensation demanded or authorized by Landlord
for any transfer or assignment of this Lease from either Tenant or the Transferee that is
not specifically addressed in this Lease.
ARTICLE 10: DEFAULT AND 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 of the breach of this Lease within
thirty (30) days of the receipt of written notice from the other party of the breach.
B. Remedies:
(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: (a)
terminate this Lease (Tenant's right of use, entry and possession may be
terminated only by detainer suit, summary proceedings or other lawful
means), (b) 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, (c) recover any unpaid rent
or on a pro-rata basis any pre-paid rent, as the case may be, as of the date
this Lease is terminated, (d) 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, and (e) recover any other reasonable amounts
necessary to compensate the non-defaulting party for all damages
proximately caused by the defaulting party's failure to perform its
obligations under this Lease, including reasonable attorney's fees and
costs.
(2) Unless the parties otherwise agree to the abandonment of Facilities in
whole or in part, in the event of a termination of this Lease, Tenant agrees
to remove its Facilities within ninety (90) days of termination, or as soon
as reasonably practical, if demanded by Landlord. In the event Tenant is
Page 11 of 21
Proprietary and Confidential
1114/2011
CONDUIT LEASE
required to remove any Facilities and Tenant fails to so remove said
Facilities, Landlord may, at Tenant's expense, remove Tenant's Facilities
from the Ductbank.
(3) NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS
LEASE TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE
TO OTHER FOR INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING LOST PROFITS AND LOST REVENUES.
ARTICLE 11: ADDITIONAL TENANT 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 (34) 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 (a) Landlord's default hereunder
creates an emergency or creates conditions which if uncured will impair or impede
Tenant's ability to provide telecommunications or communications services, and (b)
Landlord has not commenced or does not diligently proceed to cure such default, then
Tenant may, after two (2) business days' written notice to Landlord, take whatever
actions are necessary to commence curing the default(s), and Landlord agrees to
reimburse Tenant for any 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 Landlord, Landlord shall fully comply with the Texas
Open Records Act in protecting the release of confidential or proprietary information,
and will promptly notify the Disclosing Party of such request for disclosure.
Page 12 of 21
Proprietary and Confidential
11!4/2011
CONDUIT LEASE
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 or representatives 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 or representatives 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;
(5) promptly notify the Disclosing Party of any 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 knowingly 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
Page 13 of 21
Proprietary and Confidential
11/4/2011
CONDUIT LEASE
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, if requested to do so by the
Disclosing Party, 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, and
any renewals or extensions thereof. If Landlord fails to obtain and/or cause to remain
effective throughout the Term, and any renewals or extensions thereof, all required real
property rights necessary for Tenant's use of the Ductbank, Tenant may terminate this
Lease, without further obligation, by giving 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 duetbank, conduit or cells, but, only a physical location in the public right-of-
way for Tenant's installation of its own replacement conduit(s). In such case, 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, without giving effect to
its principles of conflicts of laws, 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.
Page 14 of 21
Proprietary and Confidential
H/4/2011
CONDUIT LEASE
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 agreement or understanding, whether written or oral,pertaining
to the same shall be of any force or effect. 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 snake 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 or obligations not expressly contained herein or in such contemporaneous
Lease shall be of any force or effect.
Page 15 of 21
Proprietary and Confidential
11/1/2011
CONDUIT LEASE
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.Bryrner, Tow anager
TENANT:
Name:
Title: ( C
CERTIFICATE
I, , as
of the aforesaid Tenant, hereby certify that the individual(s) executing the foregoing
Lease on behalf of Tenant was/were duly authorized to act in his/their capacities as set
forth above, and his/their actions(s) are the action of Tenant.
(Corporate Seal)
Page 16 of 21
Proprietary and Confidential y
11/4/2011
CONDUIT LEASE
ATTACHMENT A
MASTER RATE SCHEDULE
Page 17 of 21
Proprietary and Confidential V
11/4/2011
ca
E co:CO::LD � ��O IL
3 O7�d•iN ifs c,fo
C) 1LO
l(7LQ I(l}
0J Lf0- J 4;N
1 Ir I N � Ir
3 v i w i 7 .y i
J 4{}��.�i�-16a J
co ;j-i m
N C�'?1(�peN,O� y NeW
16co
i i 1 L�4 i
o C J 0jCD:CD jr J 0 10
O to N a i i i N
CV 691 1613,i6a co-164
� 1
CD E
[-iNi67'd• E 0 0 y
N i m:(0, (D 7 m LO X
N (f)1 Lf):f� LQC c 00 li
� O
r Q)
MJ EPr�ff4�Ef3 64 �{ _J Eft 4& r
} 1 1 1 ,i } 1 7
r 167 1 10 C1 1 ti a--. Q)
cc � 00 DD
d NN d CD IN 1 I7 Cl 1 CL
Ln
J OFOEO Ir- � E
_ 1 1 C p
M LO
(n
LC ca
E OD:N'N eE E �imp D W
f 0:,t:co
Q � �,b',d'1� 0 U) E% Cl 1dCO 1c) U J
T C 0- C ch1 1 I T li �} 1 r Ln cz
Y N i V i C m
y J H4�64�H4�Ef4 fff N 6964 N U
ul
W rn r O } co:�,Lf),(rJ N N '} e� N C]
Q) - F— O T = C''.16. c Y
C J p,1p1pir 4 � C J_ (D In
lf ¢ W
tri O Q V 1 yy ()
V S Ef3;h�t;6F?;Ef3 4) O �r;Efl 5 Q
Q O 0 7 E r�CO�h�r o °N' J a'o o IL
cn LL 7InIL�r cz 7 3 L°Dn;n L6 a�
m J C7 1 L(71 Co 1 C7 U O J N I,r- U (D C
.1r 0- Z4 i i i t
QJ 7 7 v �..+ i F v C j
0 CO J fPrNEFtIfft:b4 J 69164 E O 0
} o Q
Ni(oiGOio� m V ICV N o
.� C)-t-t 0 U O coi0 O O
L J_ CO
01010 IO Ir >1 `l}
E N
cc Q i i i �, Q V i _ T
64'. os N Ln Ff3�ff3 qJ U7
N
co:
C]ILLf]i—Ldt N Ld er (�L7 0
'V �igicq i� N D Z Cf) Li »M 0) U y
L4 Q J r�(`']:('�J 1ti J d Q J r 1d J 0 a
LL i i i r o i N o O
Y u9 i i i N N i N {�
(C d J fft,Ef},Efl,�3 5 A d J E!}�E?
00ico:N i(D - N 00 i o L
yr- Lo 1 e I(fl 43 LO1-�- �1� 0
V (D L.Ld i�1 cc)r- o Ul sco�CD a U
❑ � � < � v
6�r�s4�E4 r ay Vim-iP 0 T3 ca
m
1
0 1 Ir C
U _ C)
Q) iNi i d7 i @
H c_ ��r�N�Ct' (� N r1� N
7 4S
NC v i N C En
1 1 1 1 (n
i i i C ¢ i Q m
CONDUIT LEASE
ATTACHMENT B.
Operations approves of these procedures
DUCTBANK ACCESS PROCEDURES
Town of Westlake Procedure No.: 5.3 Page:
NOC Procedures DRAFT
Prepared by: Date:
Procedure: Approved:
DUCTBANK ACCESS
Revision Date: Revision-
3.1.1
evision:3.1.1 SCOPE
This procedure defines the means and methods of access to Landlord's Ductbank.
3.1. 2 RESPONSIBLITIES
Landlord or its 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.
3.1.3 PROCEDURE
3.1.3.1 GENERAL
All access to the Ductbank must be granted through the means of an Access Request.
Upon granting of access to a point in the Ductbank, an authorized representative of
Landlord must observe Tenant access at all times.
In an emergency situation Tenant, after attempting to notify Landlord or its designee, is
permitted to access the Ductbank in order to begin emergency repairs without an Access
Request. Landlord or its designee will provide access within one (1) hour of notification
by Tenant of the emergency condition.
3.1.3.2 AUTHORIZED ACCESS LIST
Landlord or its designee is responsible for maintaining an Authorized Access List for
Tenants and Tenant's subcontractors including emergency contact phone numbers, pager
numbers, etc. Tenant is responsible for providing up to date information, revisions, and
corrections to Landlord or its designee.
Page 1.8 of 21
Proprietary and Confidential
11/4/2011
CONDUIT LEASE
3.13.2. ACCESS REQUEST
Except in an emergency situation, an access request form must be filled out and
submitted to Landlord or its designee prior to accessing the Ductbank. The access
request form shall include the following:
1. Name and Company of requestor.
2. Name of Company representing if requester 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 3.1.3.4 -Access Request Form
In an emergency situation only, Tenant shall call the Town of Westlake at
This number may be changed as appropriate by written notice to Tenant.
Town of Westlake Procedure No.: 5.3 Page:
NOG Procedures DRAFT
Prepared by: Date:
Procedure: Approved:
DUCTBANK ACCESS
Revision Date: Revision:
3.1.2.2. APPROVAL
Once an access request is received by Landlord or its designee, Landlord or its designee
shall verify the validity of the access request. This shall only include verifying the
requester against the Authorized Access List. If the requester is on the authorized list,
the requester shall be.granted access.
If the requestor is not on the authorized Access List, Landlord or its designee shall
contact 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,
Landlord or its designee shall grant access to non-authorized personnel upon verbal
authorization of Tenant's emergency contact.
Landlord or its 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.
3.1. 3.4 ESCORT
Page 19 of 21
Proprietary and Confidential
11/4/2011
CONDUIT LEASE
Tenant's representative performing work shall be escorted at all times by an authorized
representative of Landlord. Landlord's 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 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 Ductbank is considered Restricted Entry. As such, Tenant's representatives
shall follow all State and Federal requirements for Restricted Entry. The granting of
access by Landlord also grants restricted access. However, Landlord does not assume
responsibility or liability for Tenant's representatives' health and welfare. Job safety is
the responsibility of Tenant's representative's health and welfare. Job safety is the
responsibility of 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.
Landlord personnel are authorized to enter manholes. Landlord personnel will monitor
work in manholes from the surface. Landlord personnel are prohibited from performing
any maintenance, repair, or other activity to, or affecting, Tenant's Facilities within the
Ductbank.
3.1.3.6 WORK ON CABLES
Landlord's representative shall log all personnel involved, start time, end time and any
other information that may be deemed necessary.
3.1.4 EXHIBITS
3.1.2.-1 Access Request Form (to follow)
3.1.3.-2 Ductbank Access Observation Form(to follow)
Page 24 of 21
Proprietary and Confidential
11/4/2011
CONDUIT LEASE
ATTACHMENT C
DUCTBANK ROUTING DRAWINGS AND DETAILS
Page 21 of 21
Proprietary and Confidential
11/4/2011
4 E
r
5
v M'
r
}
3
�r
r
,
t4
o, v
or
t
07
� Av'
fei
Y
„ gyrv.
a
kn
:
�,�ii �-�
I, � 3
k !t3
1�1 f
5-*_
'�-,d�; W-.- ,.1
",
a»
t=
<. .,
i'e
,A �' 4...
�{
�'
�f" �...
€�
i1
�: _ f7k
�.. n _
� •-
a:Y
3-
[`1
��
�',
4m
$ �
W �>
l
y.
sn �
�,
�},
$1 �:'
j
�..
N�
,.,.. � ��
'�-E°' 'q. .. �
�A
,
�.
,
,
ter\
LU
ga
a
r
f.
EXHIBIT 3.1.3.-1
ACCESS REQUEST FORM
Town of Westlake
NOC Procedures
Procedure No. 5.3
Procedure:
Duct Sank Access
Submittal Date/Time Requested Date/Time of Access
Todays Date: Date:
Current Time: AM/PM Time: AM f PM
Location of Access
MH No. Description of Location:
Reason for Access Request:
Traffic Control Plan Attached? Yes/No
Safety/Emergency Plan Attached? Yes/No
Approved By:
Requested By: Town of Westlake
Name Name
Company Name Title
Tenant Contact Information:
Address: Phone:
- Office
- Fax
Town of Westlake- Staff Comments
Revision(10114103)
J:IWestlakelDuctbanklACCESS REQUEST FORM.xIs
EXHIBIT 3.1.3-2
DUCT BANK ACCESS OBSERVATION FORM
Town of Westlake
NOC Procedures
Duct Bank Access
Observation Form
Time of Access Location of Access
Date: MH No.
Time: AM f PM Description of Location:
Reason for Access:
Name of Observer: Access By:
Name Naive
Company Name Company Name
Observer Contact Information:
Address: Phone:
- Office
- Fax
Summary of Observations
Revision(10114103)
J:1Westlake\Ductbank\OBSERVATION FORM.As