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HomeMy WebLinkAboutRes 21-47 Duct Bank AgreementTOWN OF WESTLAKE RESOLUTION NO.21-47 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 DB/A AT&T TEXAS, TO UTILIZE TOWN OWNED TELECOMMUNICATIONS CONDUIT (DUCTBANK) TO SERVE THE KNOLLS RESIDENTIAL DEVELOPMENT. WHEREAS, Southwestern Bell Telephone Company d/b/a AT&T Texas, already leases telecommunication conduit from the Town; and WHEREAS, Southwestern Bell Telephone Company d/b/a AT&T Texas, desires to utilize telecommunications conduit from the Town of Westlake to serve the Knolls residential 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 NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: 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, related to the use of ductbank within and adjacent to the Knolls residential development to serve the Knolls, 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 21-47 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 DECEMBER 2021. ATTEST: W TocI6 Wood, Town Secretary APPROVED AS TO FORM: 7N 2 L. Stanton Lowry, Town Attorney Laura Wheat, Mayor %(/Y O44t A �4& Amanda DeGan, Town Manager pF WEST io' TEXPS Resolution 21-47 Page 2 of 2 June 17, 2021 EXCLUSIVE CONDUIT LEASE Between TOWN OF WESTLAKE And SOUTHWESTERN BELL TELEPHONE COMPANY D.B.A. AT&T TEXAS Proprietary and Confidential Resolution 21-47 EXCLUSIVE CONDUIT LEASE TABLE OF CONTENTS ARTICLE 1: BASIC PROVISIONS ARTICLE 2: ADDITIONAL DEFINITIONS ARTICLE 3: TERMAND COMMENCEMENT ARTICLE 4: BASE RENT, RENEWAL AND RATE ADJUSTMENT ARTICLE 5: USEAND COMPLIANCE WITHLAWS ARTICLE 6: INSURANCE, SUBROGATION, WAIVER OF CLAIMS, AND IDEMMFICATION ARTICLE 7: CASUALTYDAMAGE ARTICLE 8: MULTI-DUCTAND CONDUIT ARTICLE 9: ASSIGNMENT AND SUBLETTING ARTICLE 10: LANDLORD'S REMEDIES ARTICLE 11: TENANT'S REMEDIES ARTICLE 12: CONFIDENTIALITYAND PROPRIETARYINFORMATION ARTICLE 13: REPRESENTATIONS AND WARRANTIES ARTICLE 14: VENUE AND GOVERNING LAW ARTICLE 15: FORCE MAJEURE ARTICLE 16: ENTIRE AGREEMENT ATTACHMENT A - THE KNOLLS DUCT BANK CONSTRUC77ONAND FIBER ROUTE PLANS ATTACHEMENT B - DUCTBANK ACCESS PROCEDURES Page 2 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE THIS EXCLUSIVE CONDUIT LEASE ("Lease") is made and entered into as of the day of 2021 by and between the Town of Westlake, Texas ("Landlord") and Southwestern Bell Telephone Company d/b/a AT&T Texas -("Tenant") ARTICLE 1: 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", The Knolls of Westlake Construction and Fiber Route 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 Duct bank segments not completed at the time of Lease signing. C. Initial Term and 20 years Expiration Date: Commencement Date plus 20 years D. Rented Length: Parties agree that the rented length will be a 9051 feet based on the attached The Knolls of Westlake Construction and Fiber Route Plans. E. Size and Quantity: 6385'-2", 396'-1.5", 2270'-4" conduit F. Base Rent: 5110,187.78 Based on Fiber Count and space in inter duct. 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 intemet services and any future technology. Page 3 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE H. Landlord: Town of Westlake, Texas I. Landlord's Notice Address: Town Manager 1500 Solana Boulevard Building 7, Suite 7200 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 K. Tenant's Notice Address: ROW Department 13845 FAA Blvd Fort Worth, Tx 76155 L. Rent Payments: Lump Sum payment of $110,187.78 M. Attachments: This Lease includes and incorporates by this reference: Attachment A: The Knolls of Westlake Construction and Fiber Route 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. O. Open ACCESS: This is an OPEN ACCESS Lease in that Landlord may lease other ducts within the Duct bank to other Tenants. Leases entered into with other Tenants may not interfere in any manner with Tenant's ability to provide service to its customers including increasing operational burdens or costs. Interference —is defined as the prevention of providing service or the degradation of service due to a technical issue caused by the Landlord or by another tenant. The Landlord is a provider of facility such as conduit and right of ways and therefore remains neutral on any tenant's service Page 4 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE objectives or strategy for deployment. ARTICLE 2: ADDITIONAL DEFINITIONS A. Conduit: The term "conduit" refers to a six-inch (6'�, four -inch (4") or two-inch (2") rigid pipe or flexible material located within the Ductbank. The conduits leased under and pursuant to this Lease are identified in Attachment "A", The Knolls of Westlake Duct Bank Construction and Fiber Route 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", The Knolls of Westlake Duct Bank Construction and Fiber Route 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. E. Open Access: The term "Open Access" refers to any potential tenant that may require physical space within the conduit shall have the opportunity to negotiate in good faith with the Landlord and seek a Lease Agreement. F. Exclusive Conduit Lease: The term "Exclusive Conduit Lease" refers to ownership of the fiber optic, copper or any other cabling within the conduit in reference to the Plans, Drawings and Specifications referenced in the Conduit Lease Agreement. This "Exclusive" Agreement means that no fiber can be subleased, sold, traded or acquired by any other party without the Landlord having knowledge and approval without being unreasonably held. 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", The Knolls of Westlake Duct Bank Construction and Fiber Route 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 annually 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. Rent shall be based on the number of Page 5 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE cells leased by the Tenant along with fiber count within the cell or conduit. 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 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. Performance Issues related to the Renewal Fee may be considered a justifiable cause for withholding consent. ARTICLE 5: USE AND COMPLIANCE WITH LAWS A. Use of Conduit: Tenant and Tenant only 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 and will not interfere with other Tenants. 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. Twenty-four (24) hour Notice for access must be given for the Maintenance required. 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. All Tenants shall have Five (5) million Dollars Liability Insurance to make a claim upon in case of any catastrophic occurrences. Landlord will not be responsible for any liquidated damages from any catastrophic occurrences. Protection of the ductbank shall be limited to what is reasonable for a local municipality may control under local jurisdictional law specified by code of The Town of Westlake and The State of Texas. D. Compliance with Laws: The parties shall comply with all laws of the State of Texas and all agencies of the United States that have direct responsibility. 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, maintenance, replacement, repair or operating improvement and equipment. Page 6 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE F. Landlord shall not permit any interference with Tenant's free and unrestricted access and right to use Tenant's Rented 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; Landlord shall notify if any such future actions are pending. 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; Landlord shall maintain the ductbank in accordance to all, local, state and federal codes concerning Hazardous Materials. ARTICLE 6: INSURANCE, SUBROGATION, WAIVER OF CLAIMS, AND IDEMNIFICATION A. Required Insurance: Each parry shall maintain during the Term of the Lease: Commercial general liability insurance, with limits of $ 5,000,000 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. Any additional personal injury, bodily injury or death, and property damage or destruction above the specified amount shall be the financial responsibility of the Tenant. 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 ninety -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. Any Tenant who declares "Self -Insured" shall be compelled to post a Surety Bond equal too all capital invested and liquidated damages that may arise from any claim. 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 exceed the insurance amounts 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. 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 Page 7 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE A, hereto. Nothing contained in this Lease shall waive Tenants 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. Any Third party responsible for damage shall have action taken in the form of a Claim for materials and service restoration along with liquidated damages. (2) Landlord: In case of damage not caused by Tenant or the Tenant's agents, employees or contractors to the Ductbank, Landlord will make every reasonable attempt to promptly restore the Ductbank. Tenant: 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 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 nondiscriminatory basis in accordance with the principles set forth in this section. Town Manager or designee shall make this decision. Page 8 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE 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). 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 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. D. Permits: Landlord shall expedite approval of any required permits due to termination of Lease by either parry provided that Tenant complies with all applicable local, state and federal requirements. 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 not have the right to assign or sublet this Lease, Tenant shall have the right to allow third parties the right to transmit signals and/or data over or otherwise use Tenant's Facilities if approved by the Landlord. Approval will be determined if Tenant and Landlord agree on existing capacity, financial terms and space required. 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 offer of 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 9 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE 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 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 tie -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. E. This should be considered an "Exclusive Conduit Lease Agreement'' between Landlord and Tenant. Any Subleasing, trading, sharing etc. must come through the Landlord for permission and compensation. ARTICLE 10: LANDLORD'S REMEDIES A. Default: Either parry 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: (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 parry'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 Duct bank and receive salvage value or may desire to leave in place and sell to a third party. (3) NEITHER PARTY SHALL BE LIABLE TO OTHER FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND LOST REVENUES or what is defined as Liquidated Damages. Page 10 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE 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 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 parry 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 Parry 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 Parry 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 Page I 1 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE 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; (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 Parry 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 Parry 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 parry whose disclosure does not violate any confidentiality obligation. F. 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 Page 12 of IS Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE 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, 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, (pandemics) 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 or obligations not expressly contained herein or in such contemporaneous Lease shall be of any force or effect. Page 13 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE IN WITNESS WHEREOF, the Parties have executed this Lease as of the date fast set forth above. LANDLORD: TOWN OF WEST/,L%,A� •K_�[&_.412eE, TEXAS j y� By: Gf/ntxoCA > Amanda DeGan, Town Manager TENANT- M1 ael Lassen -Director Construction & Engineering South estern Bell Telephone Company d/b/a I Texas 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 14 of 18 Proprietary and Confidential Resolution 21-XX ATTACHMENT A The Knolls of Westlake Duct Bank Construction and Fiber Route Plans Page 15 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE 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 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. Page 16 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE 3.1.3.2. ACCESS REOUEST 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 requestor. 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. 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. 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 Page 17 of 18 Proprietary and Confidential Resolution 21-XX EXCLUSIVE CONDUIT LEASE 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 Page 18 of 18 Proprietary and Confidential Resolution 21-XX VERIFICATION REQUIRED BY TEXAS GOVERNMENT CODE SECTION 2270 By signing below, the signatory hereby verifies that the firm it represents: 1. Does not boycott Israel; and, 2. Will not boycott Israel during the term of the contract. SIGNED BY: PRINT NAME & IW1313aMhVAIaC DATE SIGNED: TIzcaa The following definitions apply to Texas Government Code Section 2270.001: (1) 'Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli -controlled territory, but does not include an action made for ordinary business purposes; and (2) "Company" means a for -profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or limited liability company, including a wholly owned subsidiary, majority -owned subsidiary, parent company, or affiliate of those entities or business associations that exists to make a profit. State law requires any firm entering into an agreement or contract with the Authority to complete the foregoing verification. TEX. GOV T CODE § 2270.002.