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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--. 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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