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HomeMy WebLinkAboutRes 06-01 Authorizing a Lease of Ductbank with GTE Southwest DBA Verizon SouthwestTOWN OF WESTLAKE RESOLUTION NO. 6-01 WHEREAS, the Town of Westlake entered into a television cable franchise with Verizon Southwest on February 3, 2005 to provide fiber based television cable service to certain areas within the Town of Westlake served by Verizon Southwest; and WHEREAS, Verizon has already leased telecommunications conduit from the Town of Westlake for deployment of Verizon network services and facilities for the Vaquero subdivision, Phase I and Phase II; and WHEREAS, Verizon now desires to lease telecommunications conduit from the Town of Westlake to serve Vaquero, Phase III; and WHEREAS, Verizon has promised to immediately begin deployment of their fiber optic network line of services to Vaquero, Phase III in a manner that provides residents the highest quality telecommunications and video related services; and WHEREAS, after significant negotiations with the Town staff, Verizon has agreed to the lease provisions outlined in the attached contract; and WHEREAS, by leasing the ductbank to Verizon, the Town of Westlake will receive lease revenues as outlined in the attached contract in addition to 6% franchise revenues as provided in Senate Bill 5 adopted by the Texas legislature in 2005. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWNOF SECTION 1: The Town Manager is authorized to enter into a contract to lease the ductbank owned by the Town of Westlake to Verizon Southwest in accordance with the terms set forth in the attached contract. PASSED AND APPROVED ON THIS 9th DAY OF JANUARY 2006. APPR ED AS TO FORM: Lt.l<eanto6460fy, Town Attorney DUCTBANK LEASE Between TOWN OF WESTLAKE And ►Al_tl11l�.Zil.�i�l ARTICLE 6: INSURANCE, SUBROGATION, WAIVER OF CLAIMS . ............... 8 AND IDEMNIFICATION -.----.--.--..-.,-.--.--.----.------8 ARTICLE 12: CONFIDENTIALITY AND PROPRIETARY INFORMATION ..... 13 THIS DUCTBANK LEASE ("Lease") is made and entered into as of the 9th day of January, 2006, by and between the 'Town of Westlake, Texas (Landlord") and GTE Southwest, Incorporated dba Verizon Southwest ("Tenant") This Article contains the basic lease provisions between Landlord and Tenant. A. Route: The route of the Lease is as indicted on Attachment A. B. Commencement of Lease: The Commencement Date for the Lease shall be as follows; subject to adjustment based on any Landlord delays in substantial completion of any Ductbank segments not completed at the time of Lease signing: January 1, 2006 C. Expiration Date: December 31, 2035 D. Rentable Length: 3250 (+/- exact length TBD) E. Size and Quantity: One (1) One and a half inch (1 1/2") Conduit. F. Base Rent: Tenant shall pay a one time lump sum payment of $9.00 per linear foot, or $29, 250 at the Commencement of the initial term of the lease. G. Rate Adjustment: Any cost incurred by Tenant for temporary facilities and for relocation to permanent facilities necessitated by the Landlord not completing the Ductbank by January 1, 2006. Temporary facilities shall be defined as any cable facilities which are not placed in conduit and will necessitate relocation to the Landlord's Ductbank. H. Permitted Use: Facilities may be placed in the Ductbank by the Tenant for the provisioning of communications and telecommunications services, including but not limited to voice, data, video and internet services. L Landlord: Town of Westlake, Texas 73KITITIT M. Town Manager 2650 JT Ottinger Rd. Westlake, TX 76262 With copies to: Town Attorney Town of Westlake Boyle & Lowry, L.L.P. 4201 Wingren, Suite 108 Irving, TX 75062 K. Tenant: GTE Southwest Incorporated d/b/a Verizon Southwest L. Tenant's Notice Address: GTE Southwest Incorporated d/b/a Verizon Southwest VP & General Counsel 600 Hidden Ridge HQE02E20 Irving, Texas 75038 Telephone: 972-718-2415 Fax: 972-718-0396 Engineering Manager 2090 McGee Lane Room 113 Lewisville, TX 75077 Telephone: 972-3118-5274 Fax: 972-317-7475 Municipal Affairs Manager 600 Hidden Ridge HQE02E70 Irving, Texas 75038 Telephone: 972-718-3435 Fax: 972-719-7948 M. Rent Payments: The Base Rent shall be paid to Landlord or such other parties and addresses as to which Landlord shall provide advance written notice. N. Attachments: This Lease includes and incorporates by this reference: Attachment A: Ductbank Routing Drawings Details Attachment B: Ductbank Access Procedures . 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. P. Non-exclusion: This is a non-exclusive Lease in that Landlord may lease ducts within the Ductbank to other Tenants and Tenants may Lease ducts from other parties within the jurisdiction of the Town of Westlake as permitted by other agreements. Leases entered into with other Tenants may not interfere in any manner with Tenant's ability to provide customer service including operational burdens or costs. Additional Leases must be competitively neutral and non- discriminatory. , 1 i A. Conduit: A one and one half inch ( 1 1/2") pipe within the Ductbank. The Conduits included in the Lease are as indicated on the Drawings in Attachment A. B. Cell: A multi -duct inner -liner within a conduit. A conduit may contain (i) three (3) one and one half inch (1-1 /2") multi -ducts, (ii) four (4) one and one quarter inch (1- 1/4") multi -ducts, or (iii) five (5) three quarter inch (3/4") multi -ducts. The Cells included in the Lease are as indicated on the Drawings in Attachment A. Drawing to be provided by Tenant. C. Ductbank: Conduit routed from manhole to manhole or pull box. D. Facilities: Cables, wires and other appurtenances as determined by Tenant which shall be placed in Ductbank to provide communications and telecommunications TIMIIVMO A. 'Perm: Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the conduit as listed in Article 1, and described in Attachment A 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. A. Base bent: Tenant shall pay Landlord (i) the Base Rent set forth in Article 1 in advance on or before the Commencement Date and yearly on the anniversary date, or (ii) the one time lump sum base rent set forth in Article 1 in advance on or before the Execution of the Lease. B. renewal: This Lease may only be extended 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, or as otherwise reasonably necessary to relocate existing facilities without interrupting service to Verizon customers, from the receipt of such termination notice to discontinue its use of the Ductbank. Issues related to the Renewal Fee shall not be considered a justifiable cause. Tenant may continue to occupy the Ductbank after expiration of the agreement and shall pay, subject to refund by the Landlord, an amount determined by the Landlord until any such disputed Renewal Fee is resolved. Landlord shall refund any Renewal Fee paid by Tenant that is greater than the resolved amount, plus interest at the current rate that Tenant is required to pay on customer deposits, within 30 calendar days of such resolution of the Renewal Fee. The formula for determining the Renewal Fee shall include the following: (1) Fees on Renewal of the Phase III Vaquero Ductbank Agreement shall be limited to the proportional share (actual conduit/sub duct occupied and used divided by the total number of conduits/subducts) of unreimbursed costs incurred for maintenance, repair and restoration of the duct bank by the Landlord. Furthermore renewal fees shall not include costs for which another occupant of the duct bank is responsible for such maintenance, repair or restoration either by the terms of its contract or by the actions of such occupant. Verizon shall be allowed to audit any costs which are included in the renewal fee and shall not be responsible for any costs not in accordance with the Renewal Fee requirements as outlined herein. (2) May include a proportional share — actual conduit occupied divided by total number of conduits - of general costs incurred by the Landlord during the term of the prior, expiring Lease to the extent such costs have not been previously billed and paid or protested by Tenant during the term of the expired/expiring lease.. These costs shall include legal fees, administration and oversight costs, and other costs necessary to maintain the Permitted Use of the Ductbank. These costs shall not include any costs the Town incurs for providing access to the duct bank. The Town shall notify Tenant of any costs that may be included under this section within 30 days after such costs have been incurred. Legal costs under this section shall not include any litigation costs associated with claims made against the town associated with the duct bank. (3) The Tenant shall have a right to review the Landlord's costs supporting the Renewal Fee. (4) The Renewal Fee shall not include any recovery or return of initial capital investment to construct the Ductbank by the Landlord." (5) No other costs may be included in the basis for determining the Renewal Fee. A. Use of Ductbank: Tenant shall use the Ductbank 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 facilities for other purposes, and if technologically feasible, approval shall not be unreasonably denied by the Landlord. D. Maintenance of uctbank: Tenant shall be responsible for maintenance of ducts and manholes being used by the Tenant, including any damage as caused by Tenant and any pumping, cleaning or and removal of mud, animals, insects debris and other foreign matter which Tenant determines to be necessary upon access of the conduit or manhole. Landlord shall maintain the physical structure of the Ductbank and shall be responsible for the costs of maintenance of all ducts and manholes not used by tenant, including the removal of water, mud, animals, insects, debris and other foreign matter and shall not bill the Tenant for any such charges or include such cost in the renewal fee. Repairs — Tenant shall be responsible for any repairs, and associated costs that are necessary, to the ducts and manholes being used by the Tenant which result from access by Tenant. Tenant shall report all damages and associated repairs to Landlord. Landlord shall be responsible for any damages, along with costs of repairing such damage that existed upon entering conduit or manhole provided Tenant notifies the Landlord to verify such damages prior to accessing the conduit or manhole and shall not include such costs in the renewal fee. C. Protection of 'Tenant Facilities within Ductbank: Landlord shall use reasonable care to assure that Tenant's facilities within the Ductbank are protected from damage by other tenants and to allow efficient access by the Tenant to their facilities. D. Compliance with haws: 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 Agreement, or any of it's provisions or the operations contemplated hereunder, are found to be inconsistent with or contrary to any Federal or State law (now existing or hereinafter enacted), the latter will be deemed to control and, if commercially, economically or technologically practicable, this Agreement will be regarded as modified accordingly and will continue in full force and effect as so modified. If such modified Agreement 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 Agreement. If the parties are unable to agree on necessary amendments or modifications in order to comply with any Laws, then this Agreement may be terminated immediately by either party. ARTICLE 6: INSURANCE, SUBROGATION, WAIVER OF CLAIMS, AND A. Required Insurance: Tenant shall maintain during the Term of the Lease: Commercial general liability insurance, with limits of not less than $1,000,000 for personal injury, bodily injury or death, and property damage or destruction (including loss of use thereof), combined single limit for one occurrence, and $2,000,000 in the aggregate per policy year, with certificate of insurance providing : (a) for contractual liability hereunder, and (b) adding Landlord and its agents as additional insured. Landlord agrees to maintain, during the Term , commercial general liability insurance, and property damage insurance on the Ductbank, covering such risks and in such amounts as Landlord shall deem commercially reasonable, and such other insurance as Landlord shall deem commercially reasonable (subject to such deductibles, self-insurance retention amounts, blanket and umbrella policy arrangements or other features as Landlord deems commercially reasonable); provided such commercial general liability insurance shall be at least $1,000,000 per occurrence and $2,000,000 general aggregate, and such property damage insurance shall 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: Tenant shall provide Landlord with certificates evidencing the coverage required hereunder prior to the commencement Date, or Tenant's entry to the Ductbank. Such certificates shall state that such insurance coverage may not be reduced, canceled or allowed to expire without written notice to Landlord, and shall include, as attachments, originals of the additional insured endorsements. Landlord and Tenant shall provide renewal certificates to the other prior to 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 a general policy holder's rating of at least A - (A minus) and a financial rating of at least X in the then current edition of Best's Insurance Reports. Landlord disclaims any representation as to whether the foregoing coverage will be adequate to protect Tenant. C. Self Insurance: The parties to this agreement acknowledge that Tenant may satisfy all requirements of Article 6 by maintaining and providing written evidence to the Landlord of a program of self insurance as permitted by the laws of the State of Texas. D. General Indemnity Provisions: Tenant shall be liable for all claims, fully release, indemnify, defend and hold harmless the Town and all of its officials, officers, agents, consultants, employees and invitees in both their public and private 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 the 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 it's 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 error, omission, intentional or negligent acts of Tenant Parties under this Lease or any and all activity or use pursuant to the Lease. The foregoing shall not be applicable to that which is attributable to the negligence or willful misconduct of the Landlord, its employees or contractors. Nothing contained in this Agreement 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 to this Lease shall promptly notify the other party of any alleged claims and will fully cooperate 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 in Article 6, Section A, hereto. Nothing contained in this Agreement 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 in Article 6, Section A, hereto. Nothing contained in this Agreement shall waive Tenant's defenses or immunities under the Texas Civil Practice and Remedies Code or other applicable statutory or common law. (1) The parties shall promptly notify each other of any damage to the Ductbank by fire, trenching equipment, or other casualty. If the Ductbank or any of its appurtenances are damaged by fire or other casualty, Landlord shall use available insurance proceeds to restore the same. Landlord will, in a reasonable amount of time, make every reasonable attempt to restore the Ductbank to substantially the same condition as prior to the casualty. (2) In case of damage to the Ductbank, Landlord will make every reasonable attempt to promptly restore the Ductbank. Where Tenant or any of their agents, employees, or contractors caused the damage, the Tenant shall pay 100% of the reasonable 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. Except as otherwise agreed upon by the parties, restoration of lines necessary to alleviate life-threatening situations shall be given the highest priority. Emergency services will be coordinated by the Tenants at their discretion with consideration of the following priorities First restoring lines for emergency service providers (e.g., 911, fire, police, and national security and hospital lines). Second restoring services to the local service providers with the greatest numbers of local lines out of service due to the emergency being rectified. 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. b. Landlord shall determine the order of precedence of work operations only if the affected parties present are unable to reach prompt agreement; provided, however, that these decisions shall be made by Landlord on a nondiscriminatory basis in accordance with the principles set forth in this section. B. Termination of Lease by Landlord: Not withstanding the foregoing to the contrary, in lieu of performing the restoration work, Landlord may in the event of a total casualty as determined by Landlord, elect to terminate this Lease by notifying Tenant in writing of such termination within thirty (30) days after the date of damage (such termination notice to include a termination date providing not less than thirty (30) days notice to Tenant). Landlord shall provide a reasonably comparable location, that is commercially, technologically and economically feasible, within the public right-of-way to relocate those portions of Tenant's facilities that are not accessible or useable by termination. Such reasonable location shall not include a Ductbank, conduit or cells, but, only a physical location in the public right-of-way. In such case, the Tenant shall be entitled to a refund of the prorata portion of the lease payment made in advance. C Termination of Lease by 'Tenant: Notwithstanding Paragraph B above, Tenant may terminate this Lease as its sole and exclusive remedy 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 thirty (30) days, or (ii) Landlord fails to substantially complete restoration work within forty five (45) days. In order to exercise any of the foregoing termination rights, Tenant must send Landlord at least thirty (30) days advance notice specifying the basis for termination, and such notice must be given no later than thirty (30) days following the occurrence of the condition serving as the basis for the termination right invoked by Tenant. Upon receipt of termination notice from the Tenant, Landlord shall provide the Tenant with a reasonably comparable location that is commercially, technologically and economically feasible, within the public right-of-way for the Tenant to relocate its facilities. Such termination rights shall not be available to Tenant if: (a) Landlord substantially completes their repairs to the Ductbank within Landlord's ninety (90) day period to substantially complete restoration to the damaged portion of the Ductbank, or (b) Landlord provides Tenant with alternate ducts within the Ductbank route or an alternate route reasonably acceptable to Tenant. Notwithstanding anything to the contrary contained herein, if Tenant or any of their agents, employees, or contractors delays Landlord in performing the repairs, Landlord shall have additional time to complete the work equal to such delay and Tenant shall pay Landlord all Rent for the period of such delay. Landlord shall reimburse the Tenant the greater of the cost to relocate any facilities or a prorata portion of the lease payment made in advance. D. Permits: Landlord shall expedite approval of any required permits due to termination of Lease by either party provided that Tenant complies with all applicable local, state and federal requirements. ARTICLE 8: MULTI -DUCT AND CONDUIT A. Conduit: Subject to a physical inspection and approval by the Tenant and assurance from the Landlord, where Tenant leases an entire conduit, Tenant accepts the conduit as -is. Tenant may install cells, at their discretion, at no cost to the Landlord, subject to submittal of Tenant's plans and specifications for written approval by Landlord. A. Transfers: Tenant shall have the right to assign this Agreement, provided Tenant notifies Landlord at least thirty (30) days prior to such assignment, 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, and the assignee executes an assumption agreement of this Lease. In addition, notwithstanding anything to the contrary contained herein, Tenant shall have the right to assign to third parties the right to transmit signals and/or data over Tenant's facilities in the Ductbank. B. With respect to all other transfers or assignments, Tenant shall not, without the prior written consent of Landlord, which consent will not be unreasonably withheld by Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien to attach to, or otherwise transfer, this Lease or any interest hereunder, by operation of Law or otherwise. C. Tenant shall notify Landlord in writing, which notice shall include: (a) the proposed effective date (which shall not be less than thirty (30) nor more than 180 days after Tenant's notice), (b) the portion of the Ductbank to be transferred, (c) the name, address, and background information concerning the proposed Transferee, (d) an assignment and assumption agreement signed by the Transferee, whereby the Transferee assumes all obligations, terms, and conditions of this Lease, and (e) , nature of Transferee's business and proposed use of the Ductbank, if different from the Tenant's. The intent of this provision is to assure Landlord is made aware of Transferee, and to the extent that the provisions of this Section are initiated by the Tenant within 30 calendar days of inquiry by the Landlord as to the existence of a transfer, no additional action shall be taken by the Landlord. Any transfer made without complying with this Article shall, at Landlord's option, be null, void, and of no effect, or shall constitute a Default under this Lease. D. There shall be no additional compensation demanded or authorized by the Landlord for any Transfer or Assignment of this agreement from either the Tenant or the Transferee which is not specifically addressed in this lease. A.Default: Tenant shall be in default hereunder in the event Tenant has not begun and pursued with reasonable diligence the cure of any failure of Tenant to meet its obligations hereunder within thirty (30) days of the receipt by Tenant of written notice from Landlord of the alleged failure to perform. (1) Upon the occurrence of any event or events of default by Tenant, whether enumerated in this paragraph or not, Landlord shall have the option to pursue any one or more of the following: Landlord may terminate Tenant's right of use and re-enter and repossess the Ductbank only by detainer suit, summary proceedings or other lawful means, and (i) perform whatever obligations Tenant is obligated to do under the terms of this Agreement, and Tenant agrees to reimburse Landlord for any reasonable expenses incurred in effecting compliance with Tenant's obligations, (ii) recover from Tenant any unpaid rent as of the date use is terminated, (iii) recover from Tenant 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, (iv) recover from Tenant any other reasonable amounts necessary to compensate Landlord for all damages proximately caused by tenant's failure to perform its obligations under this Lease, including reasonable attorney's fees and costs. (2) In the event Landlord terminates Tenant'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 in order to not interrupt service to Tenants customers, upon demand by the Landlord. Should Tenant fail to remove facilities, Landlord may, at the Tenant's expense, remove Tenant's facilities from the Ductbank. In the event of a default under this Article 11 Tenant shall be authorized to place its facilities in any location in accordance with applicable laws. 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 Agreement; 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 of relocating facilities to another location in the right of way or easements.. If Tenant chooses to discontinue the use of the Ductbank under this Article 11, Landlord shall provide the Tenant with a reasonably comparable location that is commercially, technologically and economically feasible, within the public right-of-way or easement for the Tenant to relocate its facilities. Furthermore, Tenant shall be authorized to place its facilities in any location in accordance with applicable laws. 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 agreements, 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 parry that receives Confidential Information is referred to as the "Receiving Party". If the Receiving Party is the Landlord, the Landlord shall fully comply with the Texas ®pen Records Act and other applicable state statutes in protecting the release of confidential or proprietary information, and will promptly notify the Disclosing Party of such request for disclosure. B. When Confidential Information is furnished in tangible form, the Disclosing Party shall mark it as proprietary or confidential. When Confidential Information is provided orally, the Disclosing Party shall, at the time of disclosure or promptly thereafter, identify the Confidential Information as being proprietary or confidential. C. With respect to Confidential Information disclosed under this Lease, the Receiving Party and its employees shall: (1) To the extent allowed by law, hold the Confidential Information in confidence using procedures no less stringent than those used with respect to its own proprietary, confidential and private information of a similar nature, subject to the terms of this Agreement. 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 and other applicable state statutes. Landlord. shall not be required to take any action beyond this section to keep information confidential; (2) restrict disclosure of the Confidential Information solely to those of its employees who have a need to know in connection with the performance of this Lease, and not disclose the Confidential Information to any other person or entity except as required by law; (3) advise those employees of their obligations with respect to the Confidential Information; (4) use the Confidential Information only in connection with the performance of this Lease, except as the Disclosing Party may otherwise agree in writing except as allowed by law; (5) promptly notify the Disclosing Party of the request for the Confidential Information D. Upon written request of the Disclosing Party, the Receiving Party shall return all Confidential Information received in tangible form, except that each party's legal counsel may retain one copy in its files solely to provide a record of such Confidential Information for archival purposes. If the Receiving Party loses or makes an unauthorized disclosure of Confidential Information, it shall notify the Disclosing Party and use reasonable efforts to retrieve the Confidential Information. E. The Receiving Party shall have no obligation to preserve the proprietary nature of Confidential Information which: (1) was previously known to the Receiving Party free of any obligation to keep it confidential; or (2) is or becomes publicly available by means other than unauthorized disclosure; or (3) is developed by or on behalf of the Receiving Party independently of any Confidential Information furnished under this Lease; or (4) is received from a third party whose disclosure does not violate any confidentiality obligation. F. Unless required by law, neither party shall disclose the other party's customer Confidential Information to any third party (even if under contract to that party) or to any personnel of the party responsible for publicity or for end user sales or marketing. G. If the Receiving Party is required to disclose the Disclosing Party's Confidential Information by an order or lawful process of a court or governmental body, the Receiving Party shall promptly notify the Disclosing Party, and shall cooperate with the Disclosing Party in seeking reasonable protective arrangements before the Confidential Information is produced. 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 Agreement; and (ii) its execution of and performance under this Agreement 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 the right to construct the Ductbank and to lease Conduit to Tenant; (ii) that it has obtained any and all real property rights necessary to enter upon the property on which the Ductbank is located, and to permit Tenant to enter. If Landlord fails to obtain and/or cause to remain effective throughout the term of this Agreement 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. Landlord shall provide a reasonably comparable location that is commercially, technologically and economically feasible, within the public right-of-way or easements to relocate those portions of Tenant's facilities that are not accessible or useable by a termination. Such reasonable location shall not include a Ductbank, conduit or cells, but, only a physical location in the public right-of-way. In such case, the Tenant shall be entitled to a refund of the prorata portion of the lease payment made in advance. Furthermore, Tenant shall be authorized to place its facilities in any location in accordance with applicable laws. This Lease shall be governed by the laws of the State of Texas and any applicable Federal Law. This agreement will be enforceable in Tarrant County, Texas; if legal action is necessary to enforce this agreement, 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. 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. ' t % OT. 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 pertaining to the same shall be of any force or effect, except for any such contemporaneous written agreement 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 agreements, 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 agreements, representations, understanding or obligations not expressly contained herein or in such contemporaneous agreement shall be of any force or effect. IN WITNESS WHEREOF, the Parties have executed this Lease as of the date first set forth above. LANDLORD: TOWN OF WESTLAKE, TEXAS Trent O. Petty, T Manager TENANT: —Vcv-t'7-e� a ��.�� t„",,corporation `. By: y Name e v- Y e 11 Its: c��� (IM &119 [ kee I,- c.w s , 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) [ROS8|yDnChristian, 8duly appointed RUdqu8|ifi8d/\GSist3O1SeCRet8rynfGTE Southwest Incorporated, dba Verizon Southwest (the "Corporation"), do hereby certify that: 1 (}nJuly 18,2QO2.the Corporation's Board OfDirectors adopted mresolution regarding CPS -103 "Authority to Approve Transactions," effective June 1, 2002; and 2. Benjamin Hooper, Manager -Network Engineering, is authorized, pursuant to the signing authorities adopted by the aforementioned resolutions and a duly authorized delegation of authority, to make, enter into, and sign on behalf of the Corporation, the Lease Agreement between Town of Westlake and GTE Southwest Incorporated, dba Verizon Southwest, for Vaquero Phase !|. !Dwitness whereof, | have signed this certificate and affixed the seal ofthe Corporation this 8m day of March, 2006. ' 1 164 A I �Iyl (-, �1/ 11�1,1-al /0 Assistant Secretary cu Q � U- a p o N :01 1 to Z n LU GmN#s�2 J 6i1t]Il}Pi 4°9 a 4 o'iA wm< � GlJ F-LUM Q O - F }O srS43c N rntw- zRIO2 amen~o a C1. W ki coo W h 0 CAUa awia�u�iz xLf�0 iu eairaZiisac EAQZ 04zLX i Q+ z wlWLitLLO CC RZmW 1-*-cu zwML- Qt�Of� 33�I� u�mcaa .t�NI33Eid �Eft1l.iT� J-4 y4 pP < tPI Z W ' o ta� raF P ;:E0E-4 .4 g V a E- E-4 � 0 m W.�{ 2n 1 � 4 m L � m Q LU¢ W � Vr`d-tQO 0&0 z zm a 2 mW O m �w -jW z t3 [ =00- Lu U1 to Q 178YA4 LO Om ar1aaLLI CL w F MO t• n �� .4 '` MOMa hr LL Eta - f-FW C•1�t3«. s-i"ECW Z 0 t-LS Gii- Z.7N 0111Z ®'� gq '� y m q.. LL r m Etl r =<Mm k-t z Cis "a)= ?Qx Crw comms>us l V> z e`�x W 1e02L3EtI -- EUrltr'-' tm WQQ �� f3 x m i �Z 7 SCOPE This procedure defines the means and methods of access to the Town's Ductbank system. RESPONSIBLITIES The NOC manager 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. The NOC manager can be contacted at Town of Westlake Public Works Superintendent Office Phone: Business hours — 817-490-5717 Cell Phone — 817-680-1422 Fire Station Phone — Emergency: 911; and after hours: 817-337-4722 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 only, Tenant shall call the Town of Westlake NOC at 817-680- 1422 or 817-490-5717. This number may be changed as appropriate by written notice to Tenant. In an emergency situation Tenant, after attempting to notify the NOC manager, is permitted to access the Ductbank in order to begin emergency repairs. Without an Access Request, NOC Manager will provide access within one (1) hour of notification by Tenant of the emergency condition. AUTHORIZED ACCESS LIST The NOC Manager 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 NOC Manager. ACCESS REQUEST Except in an emergency situation, an access request form must be filled out and submitted to the NOC 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 Once an access request is received by the NOC, the NOC Manager 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, NOC personnel 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 NOC personnel may grant access to non -authorized personnel upon verbal authorization of the Tenant's emergency contact. The NOC 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. 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. RESTRICTED ENTRY In accordance with State and Federal Occupational and Safety Laws, access to manholes within the system is considered Restricted Entry. As such, Tenant's representatives shall follow all State and Federal requirements for Restricted Entry. The granting of access by the Town also grants restricted access. However, the Town does not assume responsibility or liability for Tenant's representatives' health and welfare. Job safety is the responsibility of the Tenant's representative's health and welfare. Job safety is the responsibility of the Tenant's representative. Landlord shall be responsible for maintaining the Ductbank in a safe condition as well as providing a clean and safe work area within the Ductbank. Town personnel are authorized to enter manholes. Town personnel will monitor work in manholes from the surface. Town personnel are prohibited from performing any maintenance, repair, or other activity to, or affecting, the Tenant's facilities within the Ductbank. The Town's representative shall log all personnel involved, start time, end time and any other information that may be deemed necessary. FXNTRTTC 3.1.3.-1 Access Request Form (Attached) 3.1.3.-2 Ductbank Access Observation Form (Attached) Town of Westlake NOC Procedures Procedure No. 5.3 Submittal Date/Time Todays Date: Current Time: Location of Access MH No. EXHIBIT 3.1.3.-1 ACCESS REQUEST FORM Procedure: Duct Bank Access AM/PM Requested Date/Time of Access Date: Time: AM/PM Description of Location: Traffic Control Plan Attached? Yes /No Safety/Emergency Plan Attached? Yes / No Requested By: Name Company Name Tenant Contact Information: Address: Approved By: Town of Westlake Name Title Phone: - Office - Fax Revision (10/1 J:\WestIake\Ductbank\ACCESS REQUEST FORM.xIs Time of Access Date: Time: Reason for Access: EXHIBIT 3.1.3-2 DUCT BANK ACCESS OBSERVATION FORM AM / PM Location of Access MH No. Description of Location: Name of Observer: Access By: Name Company Name Observer Contact Information: Address: Name Company Name Phone: - Office - Fax Revision (10/14/03 J:\Westlake\Ductbank\OBSERVATION FORM.xIs