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
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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
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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