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HomeMy WebLinkAbout2014.10.07 City Council AgendaCity Council City of University Park Meeting Agenda - Final City Hall 3800 University Blvd. University Park, TX 75205 Council Chamber5:00 PMTuesday, October 7, 2014 EXECUTIVE SESSION 3:00 - 4:00 P.M. Pursuant to TGC§ 551.072, the City Council will meet in closed session to discuss real estate matters. Pursuant to TGC§551.071(2), the City Council will meet in closed session to receive confidential legal advice from the City Attorney with regard to a potential use agreement for City facilities. No action will be taken. Executive Conference Room, 1st Floor, City Hall. PRE-MEETING WORK SESSION(S) 4:00 - 4:30 P.M. The City Council will meet in open work session to review the Parks Department's 2014-15 Capital Improvements Program. No action will be taken. Council Conference Room, 2nd floor, City Hall. Parks Department’s 2014-15 Capital Improvements Program14-193 Staff reportAttachments: 4:30 - 5:00 P.M. The City Council will meet in open work session to receive agenda item briefings from staff. No action will be taken. Council Conference Room, 2nd floor, City Hall. TO SPEAK ON AN AGENDA ITEM Anyone wishing to address the Council on any item must fill out a green “Request to Speak” form and return it to the City Secretary. When called forward by the Mayor, before beginning their remarks, speakers are asked to go to the podium and state their name and address for the record. I.CALL TO ORDER A.INVOCATION: Fire Chief Randy Howell B.PLEDGE OF ALLEGIANCE: Fire Chief Randy Howell / Boy Scouts C.INTRODUCTION OF COUNCIL: Mayor Olin Lane, Jr. D.INTRODUCTION OF STAFF: City Manager Robbie Corder II.AWARDS AND RECOGNITION Page 1 City of University Park Printed on 10/3/2014 October 7, 2014City Council Meeting Agenda - Final III.CONSENT AGENDA Consider and act on an ordinance amending the residential parking disrict to remove the 3000 block of Fondren and the addition of the north side of the 4300 block of Hyer 14-192 Staff report Hyer Petition Tally 4300 Block of Hyer Addition-3000 Block of Fondren Removal Attachments: Consider approval of cooperative purchase of two vehicles for the Parks Department 14-196 Staff report VPR Form and Quotes - Parks - 10.07 Attachments: Consider approval of an Interlocal Agreement for Cooperative Purchasing with the City of Glenn Heights 14-198 Staff report Glenn Heights Interlocal Agreement Attachments: Consider approval of the minutes of the September 16, 2014 City Council meeting with or without corrections 14-202 Staff report September 16, 2014 City Council Meeting Minutes Attachments: IV.MAIN AGENDA Discuss request from Karin Zaner, 3548 Milton, to address the City Council 14-203 Staff report Letter from Karin Zaner Attachments: Consider approval of engineering proposal for Mile-Per-Year Stanhope / Shenandoah and other alleys project (Project 47050) 14-191 Staff report Binkley and Barfield Contract 14071 47050 Illustration Attachments: Consider approval of a proposal for Smith Park Playground Improvements 14-194 Staff report Smith Park Playground Quote Smith Park Playground Attachments: Page 2 City of University Park Printed on 10/3/2014 October 7, 2014City Council Meeting Agenda - Final Consider approval of a License Agreement with Extenet Systems, Inc. for Distributed Antenna Systems and small cell networks in the City’s public rights-of-way 14-201 Staff report License Agreement Exhibit B - Fiber Use Agreement Exhibit 1 - Network Map Example of the Antenna Node Attachments: V.PUBLIC COMMENTS Anyone wishing to address an item not on the Agenda should do so at this time. Please be advised that under the Texas Open Meetings Act, the Council cannot discuss or act at this meeting on a matter that is not listed on the Agenda. However, in response to an inquiry, a Council member may respond with a statement of specific factual information or a recitation of existing policy. Other questions or private comments for the City Council or Staff should be directed to that individual immediately following the meeting. VI.ADJOURNMENT As authorized by Section 551.071(2) of the Texas Government Code, this meeting may be convened into Closed Executive Session for the purpose of seeking confidential legal advice from the City Attorney on any Agenda items listed herein. Page 3 City of University Park Printed on 10/3/2014 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@7C05E509\@BCL@7C05E509.docx 1:31 PM 10/01/14 AGENDA MEMO 8/19/2014Agenda TO:Honorable Mayor and City Council FROM:Gerry Bradley, Directorof Parks SUBJECT:Parks Department’s 2014-15 Capital Improvements Program BACKGROUND: With the recent approval of the 2014-15 CIP budgets, staff plans to review the Parks CIP projects with City Council regarding design, costs and project scheduling. Parks 2014-15 Capital Improvements Program 23900 -Median Upgrades (Turtle Creek Blvd. Owsley Park) $ 60,000 25400 -University Blvd. entrance portal $ 150,000 25800 -Elena’s Children’s Park Improvements $ 40,000 26000 -Park Furniture Replacement $ 50,000 26100 -Goar Park restroom structure $ 75,000 26600 -Preston Road landscape and lighting $ 180,000 26700 -Tennis Court resurfacing program $ 50,000 26900 -Tollway Wall Landscape $ 40,000 27200 -Smith Park playground replacement $ 290,000 RECOMMENDATION: Staff is requesting City Council’s approval in moving forward with the Parks Department’s 2014-15 CIP program. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@78057978\@BCL@78057978.docx 6:39 PM 09/30/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Greg Spradlin, Chief of Police SUBJECT:CONSIDER AND ACT: on an ordinance amending the residential parking district to remove the 3000 block of Fondren and the addition of the north side of the 4300 block of Hyer BACKGROUND: In 2012Southern Methodist University purchased homes on the 3000 block of Fondren Drive for future expansion purposes. In 2013 those homes were demolished, therefore the need for being a part of the residential parking district is unnecessary and the ordinance is being amended to remove this area. Secondly, a petition was signed by 75% of the north sideof the 4300 block of Hyer Street to be included inthe residential parking district near Highland Park High School. The amended ordinance being considered also includes the addition of the north side of the 4300 block of Hyer Street. RECOMMENDATION: Staff recommends approval of this amendment. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@C005084D\@BCL@C005084D.docx 2:47 PM 10/02/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Elizabeth Anderson, Purchasing Manager SUBJECT:Cooperative Purchase of Two Vehicles for Parks Department BACKGROUND: The Parks Department is scheduled to replace a Stump Grinder and a multi-purpose maintenance truckwith new vehicles. The Stump Grinder is available from Vermeer via BuyBoardcontract # 424-13 in the amount of $17,601.82. The truckand accessories for fertilizing and chemical application are available from Professional Turf Products via BuyBoard contract #447-14 in the amount of $52,653.88. The total purchase amount is $70,255.70. Attached is a memo from Jim Gau, Jr., Fleet Manager, a Vehicle Procurement Requisition, and the quotes prepared by Vermeer and Professional Turf Products. RECOMMENDATION: Staff recommends the purchase of the two vehiclesat a total cost of $70,255.70 Purchases made through BuyBoard satisfy all competitive bidding requirements. 9/4/2014 Jim Gau Jr Equipment Services City of University Park Brent Jones Parks Assistant Director Brent, Attached please find the VPR's for the Stump Grinder and Toro Truck and accessories that you have determined as suitable replacements for your department. Equipment Services has no issues with the main mechanical components of the two units that you have specified. If these are what you want to purchase sign the VPR's and forward to Tom Tvardzik at your convenience. Fleet Manager Equipment Services City of University Park, Texas VEHICLE PROCUREMENT REQUISITION (VPR) Date 9 -'-/-I L/ ____;_ _____ _ INSTRUCTIONS: Department manager-complete the header portion of this form and forward the VPR to the Fleet Manager. This document and its attachments serve as the official requisition for a vehicle and ensure that all approvals have been made. Vehicle description: User Department: Account Number: Lf7-9 D-9070 Type of purchase: 1. Planned replacement 2. Early replacement 3. Upgrade 4. Addition 0 0 0 Dept. mgr. signature Dept. head signature Anticipated City Council meeting approval date: ____ _ 1. Initial Request 2. User Department or Fleet Manager submits VPR. User department includes brief written attachment describing need for and intended use of vehicle (not required for planned replacement of like equipment). \\Ciient\P$\Finance\Fieet\Vehicle Procurement Request form.doc 1 3. Assemble prices Purchasing Agent and Fleet Manager assemble quotes, conduct bid process , or collect pricing from cooperative purchasing contracts. Purchasing Agent copies information to user department, who reviews and makes selection by signing below. ~o~ cr-g-;cr 4. Executive approval Fleet Manager forwards VPR and supporting documents to Finance Director and City Manager for approval, who forward VPR to Purchasing Agent. 5. Agenda preparation Purchasing Agent prepares agenda memo regarding compliance with City purchasing policy and State purchasing law and submits to City Secretary alon~ith user department memo and bid tabulation. 6t::L -9-21.:-1'/ Purchasing Agent Date 6. City Council Approval Date 7. Purchase Order execution and order placement Purchasing Agent sets up Purchase Order and places order with vendor. Purchasing Agent sends PO copy to Fleet Manager 8. Vehicle delivery and acceptance Vendor delivers vehicle to Equipment Services Division. Fleet Manager or designee accepts delivery and approves payment of invoice for vehicle . Fleet Manager forwards approval to Accounts Payable Specialist for payment. \\Ciient\P$\Finance\Fieet\Vehicle Procurement Request form.doc 2 July 22, 2014 Brent Johns City of University Park Vermeer Texas-Louisiana, Inc. is pleased to provide the following: Vermeer 1 exas-Lou•s•ana 3025 N. STATE HWY 161 IRVING, TX 75062 Phone(972)255-3500 Quoted by: Jared Davis 214-796-7246 jdavis@vermeertexas.com Make Model Descnpt1on Senal Number Warranty Transaction VERMEER SC292 Code 000016299 Thank you for your interest in Vermeer Equipment -We look forward to earning and keeping your business. SC292 Descri tion TLR30 1993 Tilt bed trailer chain and binder system SC292 26.5 Hp Kohler with EFI 4 wheels with hydraulic steering Yellow Jacket cutter system BuyBoard Contract #424-13 0123 YES SALE-NEW Total machme pnce excludmg any applicable taxes 20.467 23 Less the followmg trade-ms and/or cred1ts· 17,601.82 Thank you for your interest in Vermeer Equipment-We look forward to earning and keeping your business Page 1 of 2 July 22, 2014 Vermeer T exas-Lou1s1ana 3025 N. STATE HWY 161 Brent Johns IRVING, TX 75062 City of University Park Phone(972)255-3500 Quoted by: Jared Davis 214-796-7246 jdavis@vermeertexas.com Vermeer Texas-Louisiana, Inc. is pleased to provide the following: Make Model Descnpt1on Senal Number Warranty Transaction VERMEER SC292 SC292 0123 YES I hereby agree to the conditions of this order, expressed in the foregoing, constituting a purchase order contract. I hereby certify that I am 21 years of age or older and acknowledge receipt of a copy of this order. In order to secure buyer's obligations under this Agreement and any extension, renewal or modification thereof, buyer hereby grants to Dealer a security interest in all of the goods described herein and all accessions and thereto and all O! .r Non-refundable deposits 1 Buyer understands, acknowledges and agrees that if he/she fails to pay seller the remaining balance upon receipt of above goods and/or services any non-refundable deposit shall be forfeited. Buyers signature: Salesman: Accepted by: Date SALE-NEW ------ Thank you for your interest in Vermeer Equipment -We look forward to earning and keeping your business Page 2 of 2 City of University Park, Texas VEHICLE PROCUREMENT REQUISITION (VPR) Date 9--t./ .-J Lj ----=------ INSTRUCTIONS: Department manager-complete the header portion of this form and forward the VPR to the Fleet Manager. This document and its attachments serve as the official requisition for a vehicle and ensure that all approvals have been made. Vehicle description: User Department: Account Number: Type of purchase: To eo woe~<av.l ~ J-ID'X-D P~e.\(S 1. Planned replacement ){ 2. Early replacement o 3. Upg~de o 4. Addition o Dept. mgr. signature Dept. head signature Anticipated City Council meeting approval date: ____ _ 1. Initial Request User Department or Fleet Manager submits VPR. User department includes brief written attachment describing need for and intended use of vehicle (not required for planned replacement of like equipment). 2. Specifications Fleet Ma ager reviews request and assists user department with develo ent of vehi e specifications. Fleet Manager approves specs. 9-'/-JY Date \\Ciient\P$\Finance\Fieet\Vehicle Procurement Request form.doc 3. Assemble prices Purchasing Agent and Fleet Manager assemble quotes, conduct bid process, or collect pricing from cooperative purchasing contracts. Purchasing Agent copies information to user department, who reviews and makes selection by signing below. ulr~r Date ift,fiy Date 5. Agenda preparation Purchasing Agent prepares agenda memo regarding compliance with City purchasing policy and State purchasing law and submits to City Secretary along with user department memo and bid tabulation . &2---- Purchasing Agent Date 6. City Council Approval Date 7. Purchase Order execution and order placement Purchasing Agent sets up Purchase Order and places order with vendor. Purchasing Agent sends PO copy to Fleet Manager 8. Vehicle delivery and acceptance Vendor delivers vehicle to Equipment Services Division. Fleet Manager or designee accepts delivery and approves payment of invoice for vehicle. Fleet Manager forwards approval to Accounts Payable Specialist for payment. \\Ciient\P$\Finance\Fieet\Vehicle Procurement Request form.doc 2 ' . .. Ship To Bill To Contact Address City State Postal Code Phone Fax hnl Qty 11 11 11 Comments: Professional Turf Products, L.P. I 0 I 0 North Industrial Blvd. Euless, Texas 76039 Will Dutton (888) 776-8873 ext. 5410 duttonw@proturf.com City of University Park BUYBOARD (CONTRACT# 447-14) "J' Brent C. Jones 5200 Pleasant Valley Road Dallas, TX TX 75205-1711 Model# 7385 41240 120-0703 120-0704 120-0705 41243 41232 125-8121 41157 07316 07339 07375 07317 117-4830 07419 07420 107-8037 117-4836 115-7825 41256 41253 DTC Comments: Proposal Description Toro Workman HDX-D (Kubota) MPWM Sprayer 200 Gallon Gray 0.60 gpm nozzle@ 40 PSI White 0.80 gpm nozzle @ 40 PSI Light Blue 1.00 gpm nozzle@ 40 PSI Pivoting Hose Reel MPWM Foam Marker Kit for MPWM Finish Kit for MPWM ProFoam Concentrate (4 one gal. per case) High Flow Hydraulic Kit (HDX Models) Deluxe Hard Cab (Does not include doors) Cab -Sliding Window Door Kit Light Kit "Right Side" for HD & HDX Cab Right I Left Mirrors Rear PTO Kit Hand Throttle (Daihatsu units only) Reverse Alarm Trailer Signal Wiring Kit Horn Kit Vi con Vicon mount kit One (1) rear facing light-cab mounted Workman Sprayer System SubTotal Destination Tax (Estimated) TOTAL mfidential Property of Professional Turf Products Date Tax Rate Destination Trade-In Finance Account Type Unit $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ Count on it. 9/4/2014 2.00% Contract Extended 21 ,676.32 12,462.64 106.14 106.14 106.14 2,579.67 1,658.31 281 .13 196.51 1,380.44 3,858.63 1,098.55 421 .22 249.89 789.29 147.39 302.31 140.43 28.20 2,981.46 1,983.07 100.00 52 ,653.88 52,653.88 Included 52,653.88 Page 1 c .. . ' For all New Equipment, Demo units may be available for up to 20% savings. For all New Equipment, Refurbished units may be available for up to 40% savings. Terms & Conditions: 1. Orders are considered contractual. Order cancellations are subject to fees up to 10% of the original order value. 2. New equipment delivery time is estimated at six weeks from the time credit is approved & documents are executed. 3. Pricing, including finance options, valid for 30 days from time of quotation. 4. After 30 days all prices are subjectto change without notice. 5. Used and Demo equipment is in high demand and availability is subject to change. A. Upon firm customer commitment to purchase, said equipment availablity will be determined and "locked". B. In the event equipment is unavailable at time of order, PTP will employ every resource to secure an acceptable substitute. C. PTP strongly advises the customer to issue a firm PO as quickly as possible after acceptance of quotation. 6. "Trade In Allowances" will be treated as a credit for future parts purchases on PTP account unless other arrangements have been made. Returns Policy: 1. All returns are subject to restocking, refurbishing, usage, and shipping fees. 2. All returns must be able to be sold as new. 3. Items missing parts are non returnable. 4. Professional Turf Products will have sole discretion as to the resalable condition of the product 5. This policy does not apply to items that are defective, or shipped incorrectly by PTP or one of its vendors. Payment: 1. Terms are net 10 unless prior arrangements have been made. 2. Quoted prices are subject to credit approval. A. PTP will work with third party financial institutions to secure leases when requested to do so. B. When using third party financiers, documentation fees & advance payments may be required. C. For convenience, monthly payments are estimated based on third party rate factors in effect at time of the quotation. D. PTP assumes no liability in the event credit becomes unavailable or rates change during the approval process. 3. There will be a service charge equal to 1.5% per month (18% per annum) on all past due invoices. 4. By Law we are required to file a "Notice to Owner" of our intent to file lien in the event of payment default. This notice must be sent within 60 days of the date the original invoice and will happen automatically regardless of any special payment arrangements that may have been made. Authorized Signature: -----------------------Date: ____________ _ mfidential Property of Professional Turf Products Page 2 c 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@C0056DFB\@BCL@C0056DFB.docx 2:47 PM 10/02/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Elizabeth Anderson, Purchasing Manager SUBJECT:InterlocalAgreement for Cooperative Purchasing with the City of Glenn Heights BACKGROUND: Attached is an interlocalagreement with the City of Glenn Heights. Approval of this agreement would facilitate cooperative purchasing between University Park and Glenn Heights. The City of Glenn Heights has a contract with Emergicon for EMS billing services, ePCR software, and hardware. The University Park Finance and Fire Departments would like to take advantage of this contract as it offers these services for a commission of 11%, vs. the 14% that University Park is currently paying. The interlocal agreement also allows for other cooperative purchasing between our two cities. This type of cooperative purchasing is allowed through the Interlocal Cooperation Act (Texas Government Code, Chapter 791). The City participates in similar arrangements with a number of purchasing cooperatives and individual municipalities. RECOMMENDATION: Staff recommends approval of the attached Interlocal Agreement with the City of Glenn Heights for cooperative purchasing. ATTACHMENTS: Interlocal agreement CITY OF GLENN HEIGHTS/CITY OF UNIVERSITY PARK INTERLOCAL COOPERATION AGREEMENT –PAGE 1 STATE OF TEXAS § § INTERLOCAL COOPERATION AGREEMENT COUNTY OF DALLAS § This lnterlocal Cooperation Agreement ("Agreement") is between the City ofGlenn Heights, Texas ("Glenn Heights") and the City ofUniversity Park("University Park"), (individuallyas the “Party” or collectively as the “Parties”), acting by and through their respective authorized officers. RECITALS: WHEREAS, this Agreement is authorized by Chapter 791 of the Texas Government Code and Subchapter F, Chapter 271, Texas Local Government Code(the “Code”); and WHEREAS, Section 271.102 of the Code authorizes a local government to participate in a cooperative purchasing program with another local government or a local cooperative organization; and WHEREAS, a local government that purchases goods and services pursuant to a cooperative purchasing program with another local government satisfies the requirement of the Code to seek competitive bids for the purchase of the goods and materials; and WHEREAS, eachParty has and will on an annual basis obtain competitive bids for the purchase of goods and services; and WHEREAS, the Parties desire to enter into a cooperative purchasingprogram which will allow each Party to purchase goods and services under each other's competitively bid contracts pursuant to Subchapter F, Chapter 271,of theCode; NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties agree as follows: ARTICLE I PURPOSE The purpose of this Agreement is to establish a cooperative purchasing program between the Parties, which will allow each Party to purchase goods and services under each other's competitively bid contracts pursuant to Subchapter F, Chapter 271,of theCode. ARTICLE II TERM 1.This Agreement shall take effect upon execution by the Parties. This Agreement shall be in effect from date of execution until terminated by either Party to this Agreement by written notice to the other Party stating the date of such termination. CITY OF GLENN HEIGHTS/CITY OF UNIVERSITY PARK INTERLOCAL COOPERATION AGREEMENT –PAGE 2 2.Prior to any cooperative purchases under this agreement, the Parties will designate which Party shall be responsible for the bidding process for a particular purchase. 3.The Parties agree that all specifications for said items shall be determined in cooperation with each other, with final approval with the Party responsible for final bid process. 4.Each Party shall be responsible for placing orders directly with and payment to the vendor under each contract entered into pursuant to the cooperative purchasing program, and shall be responsible for the vendors compliance with all conditions of delivery and quality of the purchased items. Neither Party shall be obligated to purchase any item merely by virtue of that Party’s approving specifications for said item, or by requesting to be included in an "open" contract for such items. 5.Each Party shall designate an official representative to act in all matters relating to this cooperative purchasing program, including the designation of specific contracts in which the Party desires to participate. ARTICLE III TERMINATION Either Party may terminate this Agreement by providing thirty (30) days’prior written notice to the other Party. ARTICLE IV PURCHASING The City Manager orother designee for each Party is authorized to act on behalf of the respective Party in all matters relating to this cooperative purchasing program. Each Partyshall make payments to the other Partyor directly to the vendor under the contract made pursuant to Subchapter F, Chapter 271,of the Code.Each Partyshall be responsible for the respective vendor's compliance with provisions relating to the quality of items and termsof delivery. ARTICLE V MISCELLANEOUS 1.Relationship of Parties: This Agreement is not intended to create, nor should it beconstrued as creating, a partnership, association, joint venture or trust. 2.Notice. Any notice required or permitted to be delivered hereunder shall be deemed received when sent in the United States Mail, Postage Prepaid, Certified Mail, Return Receipt Requested, or by hand-delivery or facsimile transmission addressed to the respective Partyat the address set forth below the signature of the Party. 3.Amendment. This Agreement may be amended by the mutual written agreement of both parties hereto. CITY OF GLENN HEIGHTS/CITY OF UNIVERSITY PARK INTERLOCAL COOPERATION AGREEMENT –PAGE 3 4.Severability. In the event anyone or more of the provisions contained in this Agreement shallfor any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. 5.GoverningLaw. The validity of this Agreement and any of its terms and provisions,as well as the rights and duties of the Parties,shall be governed by the laws of the State of Texas,and venue for any action concerning this Agreement shall be in the State District Court of Dallas County, Texas. 6,Entire Agreement. This Agreement represents the entire agreement among the parties with respect to the subject matter covered by this Agreement. There is no other collateral, oral orwritten agreement between the parties that in any manner relates tothe subject matter of this Agreement. 7,Recitals. The recitals to this Agreement are incorporated herein. 8.Counterparts. This Agreement may be executed in any number of counterparts, each of whom shall be deemed an original and constitute one and the same instrument. EXECUTED this _____ day of ___________________________2014. CITY OFGLENN HEIGHTS, TEXAS By:______________________________ _______________________, Mayor ATTEST: By:__________________________________ _______________________, City Secretary APPROVED AS TO FORM: By:__________________________________ Joe Gorfida, Jr., City Attorney CITY OF GLENN HEIGHTS/CITY OF UNIVERSITY PARK INTERLOCAL COOPERATION AGREEMENT –PAGE 4 EXECUTED this _____ day of _________________________ 2014. CITY OF UNIVERSITY PARK, TEXAS By:______________________________ Olin B. Lane, Mayor ATTEST: By:__________________________________ Christine Green, City Secretary APPROVED AS TO FORM: By:__________________________________ Name:Robert L. Dillard III Title:City Attorney (RLD; 9-17-14; TM68306) 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@CC05DE87\@BCL@CC05DE87.docx 12:17 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Christine Green, City Secretary SUBJECT:Minutes of the September 16, 2014 City Council Meeting BACKGROUND: Minutes of the September 16, 2014 meeting are included for the Council’s review. RECOMMENDATION: City Hall 3800 University Blvd. University Park, TX 75205 City of University Park Meeting Minutes - Draft City Council 5:00 PM Council ChamberTuesday, September 16, 2014 PRE-MEETING WORK SESSION(S) 3:15 - 4:00 P.M. The City Council met in open work session to review possible improvements to the Miracle Mile / Lovers Lane. No action was taken. Council Conference Room, 2nd floor, City Hall. 4:00 - 5:00 P.M. The City Council met in open work session to receive agenda item briefings from staff. No action was taken. Council Conference Room, 2nd floor, City Hall. CALL TO ORDERI. Rollcall Councilmember Bob Begert, Councilmember Dawn Moore, Councilmember Tommy Stewart, Councilmember Taylor Armstrong and Mayor Olin Lane Present:5 - INVOCATION: Councilmember Dawn MooreA. PLEDGE OF ALLEGIANCE: Councilmember Dawn MooreB. INTRODUCTION OF COUNCIL: Mayor Olin Lane, Jr.C. Page 1City of University Park September 16, 2014City Council Meeting Minutes - Draft INTRODUCTION OF STAFF: City Manager Robbie CorderD. City Manager Robbie Corder introduced new Director of Information Services Dale Harwell. He was selected for the position from among a group of highly qualified candidates. Dale has 14 years of experience in municipal technology, and worked for other area cities including Hurst and Euless. Dale Harwell addressed the Council and said that he is excited to begin working for the City. Other staff in attendance included Community Information Officer Steve Mace, Chief of Police Greg Spradlin, Director of Public Works Bud Smallwood, City Secretary Christine Green, Director of Parks & Recreation Gerry Bradley, Library Director Sharon Martin, Acting Community Development Director Jacob Speer, Fire Chief Randy Howell, and Director of Finance Tom Tvardzik. AWARDS AND RECOGNITION - NoneII. CONSENT AGENDAIII. 14-179 Consider approval of a request by Christ the King to conduct a 5K benefit run City Manager Corder said that 500 - 700 participants are expected for this 5K run organized by Christ the King Catholic Church. This Action Item was approved. 14-180 Consider approval of a park reservation request and route through University Park for the Susan G. Komen 3-Day Walk City Manager Corder said that 1500 - 2000 participants are expected for the Susan G. Komen 3-Day Walk. The participants will be walking through University Park on Sunday, November 9 with a rest stop in Goar Park. This event has taken place in the city for the past several years without any problems. This Action Item was approved. 14-183 Consider approval of the minutes of the September 9, 2014 City Council meeting with or without corrections Mayor Lane requested that the "A11" reference be removed from the September 9 minutes under the "Second public hearing on the proposed FY2105 budget and tax rate" item. The Minutes were approved with the requested change. Page 2City of University Park September 16, 2014City Council Meeting Minutes - Draft Approval of the Consent Agenda A motion was made by Councilmember Stewart, seconded by Councilmember Begert, to approve the Consent Agenda. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - MAIN AGENDAIV. 14-184 Public hearing on proposed FY15 Budget and property tax rate Mayor Lane opened the public hearing. Director of Finance Tom Tvardzik presented the FY2015 proposed budget and tax rate. He said this is the third and final public hearing required before adoption of the budget. The budget will be considered for adoption at the conclusion of this public hearing. The total budget for FY15 is $47.3 million, an increase of 2.4% or $1.2 million more than last year's budget. The tax rate is being lowered to 26.979 cents per $100 tax rate, down from 27.432 cents in FY14. However, the City property tax levy will increase due to the 7.61% increase in the certified taxable value. The average University Park homeowner will pay an additional $168 in property taxes next year because of an increase in property values - the average single family home increased in value by 8.44%. The Mayor stated that the City Council has now held three public hearings regarding the proposed 2015 tax rate and budget, has viewed presentations on the proposed budget, and considered the property tax rate necessary to support that budget. Notices regarding these public hearings have been published on the City's website, in the Park Cities News and in the Dallas Morning News. The Mayor asked if anyone wanted to speak. There were no speakers, and the public hearing was closed. 14-185 Consider and act on an ordinance adopting the FY2015 Budget Finance Director Tom Tvardzik reviewed the FY15 budget highlights. He stated that the budget totals $47,262,209, a 2.4% increase from fiscal 2014. Relevant aspects of the proposed budget have been reviewed and approved by three different City Advisory Committees. The budget and related tax rate have been the subject of three separate public hearings. He asked the City Council to consider approval of the Fiscal Year 2015 Budget ordinance, thereby adopting the fiscal year 2015 Budget. A motion was made by Councilmember Armstrong, seconded by Councilmember Moore, that this Ordinance be adopted. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - Enactment No: ORD No. 14/022 Page 3City of University Park September 16, 2014City Council Meeting Minutes - Draft 14-186 Ratify property tax rate of $0.26979 as reflected in FY2015 budget Finance Director Tom Tvardzik said that with the approval of the Fiscal Year 2015 budget, Texas Local Government Code Section 102.007(c) requires that the City Council take a separate vote ratifying the property tax increase reflected in the budget. He said the statement requiring ratification has been published in a newspaper of general circulation within the county, and is also contained on the cover of the city manager's FY15 budget memo. It reads as follows: "THIS BUDGET WILL RAISE MORE TOTAL PROPERTY TAXES THAN LAST YEAR'S BUDGET BY $1,043,441 OR 6.48%, AND OF THAT AMOUNT, $284,907 IS TAX REVENUE TO BE RAISED FROM NEW PROPERTY ADDED TO THE TAX ROLL THIS YEAR." He asked the Council to consider ratifying the property tax increase, and the related property tax rate of 26.979 cents per hundred dollars of property value, as reflected in the fiscal 2015 budget. A motion was made by Councilmember Taylor Armstrong, seconded by Councilmember Dawn Moore, to ratify the property tax rate. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - 14-187 Consider and act on an ordinance levying 2014 ad valorem taxes and setting tax rate Finance Director Tom Tvardzik introduced this ordinance adopting and levying the 2014 tax rate, supporting the fiscal 2015 budget. The proposed rate of 26.979 cents per $100 taxable value is a decrease from the prior year rate of 27.432 cents. He asked the Council to consider approval of the 2014 property tax rate ordinance. A motion was made by Councilmember Armstrong, seconded by Mayor Lane, that this Ordinance be adopted. The motion carried by the following vote: Aye:Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 4 - Nay:Councilmember Begert1 - Enactment No: ORD No. 14/023 Page 4City of University Park September 16, 2014City Council Meeting Minutes - Draft 14-188 Consider and act on an ordinance adopting the FY2015 pay plan Finance Director Tom Tvardzik said that this is the fourth and final budget item tonight, the ordinance adopting the pay plan for Fiscal Year 2015. Along with some structural pay grade changes within the Public Safety function, the plan includes a 2% raise for all full-time positions within the City. The 2015 pay plan has been reviewed and recommended by the Employee Benefits Advisory Committee. A motion was made by Councilmember Taylor Armstrong, seconded by Councilmember Dawn Moore, that this ordinance be adopted. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - Enactment No: ORD No. 14/024 14-181 Consider and act on an ordinance abandoning water line easements of the Preston Road Fresh Water District to the abutting owners City Manager Corder said the the City Council has previously approved abandonments of easements for the Preston Road Fresh Water District in December 2012, June 2013, and August 2014 for specific properties. The easements were designated for installation and maintenance of water mains for the Preston Road Fresh Water District, though these water mains were never installed. This is a blanket ordinance abandoning the easement at any and all locations within the City of University Park. This will eliminate the need to bring future abandonment requests to the City Council each time a property owner in the District wants to redevelop a lot. A motion was made by Councilmember Stewart, seconded by Councilmember Begert, that this Ordinance be adopted. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - Enactment No: ORD No. 14/025 PUBLIC COMMENTSV. Corinna Chandler, 3459 McFarlin Blvd., addressed the Council about pedestrian safety in school zones. She has a 6th grader at McCulloch Intermediate School. She doesn't like kids riding their bikes on the sidewalks. She witnessed a child on a bike hit another child while passing her on the sidewalk today, and she wants the Police Department to help improve pedestrian safety near the schools. ADJOURNMENTVI. Page 5City of University Park 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@7805415B\@BCL@7805415B.docx 2:37 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO: Honorable Mayor and City Council FROM: Robbie Corder, City Manager SUBJECT:Discuss: Request from Karin Zaner, 3548 Milton,to address the City Council BACKGROUND: The City Council received a letter from Karin Zaner on October 1st, 2014, requesting an opportunity to address the City Council. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@7805DF60\@BCL@7805DF60.docx 2:37 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO: Honorable Mayor and City Council FROM: Gene R. Smallwood, P.E. SUBJECT:Engineering Proposal for Mile Per Year Stanhope / Shenandoah and Other Alleys project (Project 47050) BACKGROUND: City Council approved the FY 15 Capital Budget on September 9, 2014 which includes a Mile Per Year project designed to replace the water and sanitary sewer mains and pavement in five (5)locations. These locations were selected based on the high number of water main breaks in recent years. Staff solicited a proposal from Binkley and Barfield to provide the necessary surveying and engineering services associated with development of plansand specifications for the construction. A copy of the proposal, in the amount of $214,920.00, is attached for Council review. As mentioned, funds are identified for this work in the Capital Budget. RECOMMENDATION: Staff recommends that City Councilapprove the Binkley & Barfield proposal in the amount of $214,920.00 and authorize the City Manager to execute a contract with Binkley and Barfield for the work. Page 1 CONTRACT FOR PROFESSIONAL ENGINEERING SERVICES for UNIVERSITY PARK PROJECT #BC14071 THIS AGREEMENT made and entered into on the date last stated below between the City of University Park, hereinafter called “CITY”, acting by and through Robbie Corder, City Manager, duly authorized to act on behalf of the CITY and, Binkley & Barfield - C&P, Inc., hereinafter called “ENGINEER”, acting by and through Michael Cummings, P.E., duly authorized to so act on behalf of the ENGINEER. WHEREAS, the CITY desires PROFESSIONAL engineering/surveying services in connection with the design of pavement and utility replacement in the locations as follows: o 8” Water Line in Normandy from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Normandy Avenue and San Carlos Drive from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Stanhope Avenue and Shenandoah Street from Roland Avenue to Armstrong Parkway o Paving, Water and Sanitary Sewer Replacement in Alley between McFarlin Blvd. and Larchmont Avenue from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Hyer Street and Grassmere Lane from Loma Alto Drive to Douglas Avenue for the City of University Park, hereinafter called “the PROJECT”; and WHEREAS, the CITY has determined that the ENGINEER has experience in the area involved in the Project and is qualified to perform the work, and the ENGINEER is willing to enter into a contract with the CITY to perform the engineering services desired by the CITY in connection with the PROJECT. THE CITY AND ENGINEER AGREE AS FOLLOWS: The CITY hereby retains the ENGINEER to perform engineering services in connection with the PROJECT described above. 1. SCOPE OF SERVICES The scope of Engineering/Surveying services to be performed by the ENGINEER shall be as follows: Page 2 1.1 Approach to Project Survey by conventional method and prepare engineering plans and construction takeoff for the design of pavement and utility replacement in the locations as follows: o 8” Water Line in Normandy from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Normandy Avenue and San Carlos Drive from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Stanhope Avenue and Shenandoah Street from Roland Avenue to Armstrong Parkway o Paving, Water and Sanitary Sewer Replacement in Alley between McFarlin Blvd. and Larchmont Avenue from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Hyer Street and Grassmere Lane from Loma Alto Drive to Douglas Avenue 1.2 Detailed Scope of Services  Preliminary site investigation  Design Survey (conventional method)  Locate Existing Utilities (Actual physical location where possible by conventional survey methods but on all else the location will be based on existing plans and information furnished by the City and franchise utilities)  Assist City with franchise utility coordination.  Engineer Plans for paving and utility improvements as discussed.  Preparation of a Quantity Takeoff.  Furnish construction controls as required. 2. CITY’S RESPONSIBILITIES So as not to delay the services of ENGINEER, the CITY shall do the following in a timely manner: 2.1 Provide Existing Data City to furnish: Existing engineering plans Property owner information Franchise utility contacts. Existing data delivered to the ENGINEER by the CITY remains the property of the CITY and must be returned to the CITY after completion of the PROJECT. Page 3 2.2 Provide Standards After authorization to proceed, if required by the Scope of Work, provide CITY standard bidding and contract documents which are to be used for public bidding of the PROJECT. The CITY agrees to bear total responsibility for accuracy and content of CITY furnished documents. If required by the Scope of Work, the ENGINEER shall provide all bid item descriptions, item quantities, special provisions, technical specifications, plans and other project specific information that is required for bidding the PROJECT. 2.3 Provide Access Arrange for access to, and make all provisions for, ENGINEER or ENGINEER’S Sub- consultants to perform services under this AGREEMENT. 2.4 City Representative CITY shall designate a representative to act as a contact person on behalf of the CITY. 2.5 Franchise Utilities CITY shall assist in the project coordination with the Franchise Utilities. CITY shall furnish the current list of contacts for all Franchise Utilities. 3. SCHEDULE The ENGINEER’S services shall be performed in a timely manner consistent with sound professional practices. The ENGINEER will complete the work according to the following schedule: Preliminary site investigation 1 Week Design Survey 8 Weeks Engineer Plans for paving and utility improvements 36 Weeks Franchise utility coordination 2 Weeks Preparation of Quantity Takeoff 1 Week Construction Controls Total 48 Weeks The time limits set forth in the schedule does not include allowances for review time by the CITY and/or approval by authorities having jurisdiction over the PROJECT. Any adjustments made to the agreed upon schedule shall be made in writing and acceptable to both parties. The ENGINEER shall begin work within 10 days of receipt of the executed Agreement and written Notice to Proceed. Page 4 3.1 Completion of Services ENGINEER’S services under each item of the finalized Scope of Work shall be considered complete on the date when the submissions for that item have been accepted by CITY. 3.2 Changes If the CITY requests significant modifications or changes in the Scope of Services, general scope, extent or character of the PROJECT, the time of performance of ENGINEER’S services, the various rates of compensation and schedule shall be adjusted equitably. 3.3 Written Authorization for Additional Work Any provision in this Contract notwithstanding, it is specifically understood and agreed that the ENGINEER shall not authorize or undertake any work pursuant to this Contract which would require the payment of any fee, expense or reimbursement in addition to the fees stipulated in Section 4. (Payment for Services) of this Contract, without first having obtained the specific written authority to do so from the CITY. 4. PAYMENT FOR SERVICES 4.1 Terms Terms used in describing the applicable method of payment for services provided by the ENGINEER shall have the meaning indicated below: Basic Engineering Fee: Basic Engineering Fee shall mean those expenses incurred by the ENGINEER in prosecuting the PROJECT Scope of Services. Reimbursable Expenses Reimbursable Expenses shall mean the actual expenses incurred by ENGINEER in the interest of the PROJECT not covered under the Scope of Services, for courier or express mail service and telegrams, reproduction of reports, drawings, specifications, bidding documents, and similar PROJECT-related items in addition to those required under Section I. Page 5 Additional Services Additional services not covered under the Scope of Services, will be provided to the CITY on an hourly basis plus reimbursable expenses as agreed in writing at the time such services are authorized. 4.2 Basis and Amount of Compensation for Basic Services Design Survey $ 32,450.00 Engineer Plans for paving and utility improvements $ 168,270.00 Preparation of Quantity Takeoff $ 3,800.00 Construction Controls $ 7,200.00 Prints, plots, deliveries, mileage $ 3,200.00 TOTAL $ 214,920.00 The total amount of the engineering contract is $214,920.00. 4.3 Basis and Amount of Compensation for Reimbursable Expenses (See attached fee schedule) 4.4 Basis and Amount of Compensation for Additional Services (See attached fee schedule) 4.5 Partial Payments for Services Partial fee payments may be applied for at monthly intervals, based upon statements which reflect the percentage of work completed for the various items listed under Scope of Services, Reimbursable Expenses and Additional Services. These statements shall be prepared by the ENGINEER and must be verified and approved by the CITY. 4.6 Delay If ENGINEER’S design services or service during construction of the PROJECT are delayed or suspended in whole or in part by the CITY for more than one year for reasons beyond ENGINEER’S control the various rates of compensation, including Additional Services, provided for elsewhere in this AGREEMENT shall be subject to equitable adjustment. Page 6 5. TERMINATION, SUSPENSIONS OR ABANDONMENT 5.1 Termination The CITY or the ENGINEER may terminate this AGREEMENT for reasons identified elsewhere in this AGREEMENT. In the event such termination becomes necessary, the party effecting termination shall so notify the other party, and termination will become effective thirty (30) calendar days after receipt of the termination notice. Irrespective of which party shall effect termination or the cause therefor, the CITY shall within thirty (30) calendar days of termination remunerate ENGINEER for services rendered and costs incurred, in accordance with the ENGINEER’S prevailing fee schedule and expense reimbursement policy. Services shall include those rendered up to the time of termination. All plans, field survey, and other data related to the PROJECT shall become the property of CITY upon termination of the AGREEMENT and shall be promptly delivered to the CITY in a reasonably organized form. Should CITY subsequently contract with a new Engineer for continuation of services on the PROJECT, ENGINEER shall cooperate in providing information. No amount shall be due for lost or anticipated profits. 5.2 Suspension If the Project is suspended by the CITY for more than 30 consecutive days, the ENGINEER shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the ENGINEER’S compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the ENGINEER’S services. 5.3 Abandonment This Agreement may be terminated by the City upon not less than seven (7) days written notice to the ENGINEER in the event that the Project is permanently abandoned. If the Project is abandoned by the CITY for more than ninety (90) consecutive days, the ENGINEER or the CITY may terminate this Agreement by giving written notice. 5.4 Failure to Pay Failure of the CITY to make payments to the ENGINEER in accordance with this Agreement shall be considered substantial nonperformance and cause for termination. If the CITY fails to make payment to ENGINEER within thirty (30) days of a statement for services properly performed, the ENGINEER may, upon fourteen (14) days written notice to the CITY, suspend performance of services under this Agreement. Unless ENGINEER receives payment in full within fourteen (14) days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services under this section, the ENGINEER shall have no liability to the CITY for delay or damage caused the CITY because of such suspension of services. Page 7 6. GENERAL CONSIDERATIONS 6.1 Professional Standards Services performed by the ENGINEER under this AGREEMENT will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions. The ENGINEER shall comply with the applicable laws and rules of the current “Texas Engineering Practice Act”, the “Professional Land Surveying Practices Act” and the “Texas Board of Professional Land Surveying General Rules of Procedures and Practices”. The CITY’S approval, acceptance, use of or payment for all or any part of the ENGINEER’S services herein under or of the project itself shall in no way alter the ENGINEER’S obligations of the CITY’S rights thereunder. 6.2 Progress and Performance The provisions of this Contract and the compensation to ENGINEER have been agreed to in anticipation of continuous and orderly progress through the completion of the ENGINEER’S services. Time for performance shall be extended to the extent necessary for delays due to circumstances over which the ENGINEER has no control. If the ENGINEER’S services are suspended or delayed the times of performance shall be extended to the extent of such delay or suspension. A delay or suspension shall not terminate this agreement unless ENGINEER elects to terminate in accordance with the provisions of Section V of this Contract. If a delay or suspension extends for a period of greater than one year for reasons beyond the control of the ENGINEER, the fees and rates of compensation set forth in Section IV shall be subject to re-negotiating. 6.3 City Control It is understood and agreed that the CITY shall have complete control of the services to be rendered, and that no work shall be done under this Contract until the ENGINEER is instructed to proceed with the work. 6.4 Independent Agent ENGINEER and CITY agreed that ENGINEER and any officer, employee or agent of ENGINEER, in the performance of this Contract shall act in an independent capacity and not as an officer, agent or employee of the CITY. 6.5 Compliance with Laws ENGINEER shall comply with all Federal, State, and local laws and ordinances in the execution of all work in connection with this PROJECT. Page 8 6.6 No Additional Work Without Authorization Any provision in the contract notwithstanding, it is specifically understood and agreed that the ENGINEER shall not authorize or undertake any work pursuant to this contract, which would require the payment of any fee, expense or reimbursement in addition to the fee stipulated in Article 4 of this Contract, without having first obtained specific written authority therefor from the CITY. 6.7 Assignment & Subcontracting This contract shall not be assigned or subcontracted in whole or part without the written consent of the CITY. 6.8 Indemnification ENGINEER, its officers, agents and employees agree to indemnify, hold harmless, and defend the CITY, at ENGINEER’S cost, its officers, agents, and employees from and against any and all claims or suits for injuries, damages, loss, or liability of whatever kind of character, arising out of or in connection with the performance by the ENGINEER of those services contemplated by the Agreement, based upon negligent acts or omissions of ENGINEER, its officers, agents, employees, consultants and subcontractors, whether or not caused solely by the ENGINEER, its officers, agents, employees, consultants or subcontractors or jointly with any other party. 6.9 Insurance ENGINEER shall secure and maintain insurance that will protect him from claims under the Worker’s Compensation Act (statutory amounts). ENGINEER shall secure and maintain Commercial General Liability Insurance that will protect him from claims for bodily injury, death or property damage which may arise from the performance of his services under this CONTRACT, written on an occurrence basis, in the following amounts: For engineering design contracts in the amount of $10,000.00 or less, insurance in an amount not less than $1,000,000.00 per occurrence and $1,000,000.00 per annual aggregate for bodily injury or death and property damage. ENGINEER shall maintain Comprehensive Automobile Liability Insurance covering all owned, non-owned, and hired vehicles with combined single limit coverage of $500,000 for bodily injury, death or property damage, written on an occurrence basis. For engineering design contracts for more than $10,000.00, insurance in an amount not less than $1,000,00 per occurrence and $2,000,000 annual aggregate for bodily injury or death and property damage. ENGINEER shall maintain Comprehensive Automobile Liability Insurance covering all owned, non-owned, and hired vehicles with combined single limit coverage of $1,000,000 for bodily injury, death or property damage. Page 9 ENGINEER shall maintain, at no expense to CITY, a professional liability (errors and omissions) insurance policy placed with a company rated at least A-/VII by Best’s Key Rating Guide, authorized to do business in Texas. This coverage must be maintained for at least two (2) years after the PROJECT is completed. Coverage must be written on an occurrence basis. However, at its sole discretion, the CITY may accept coverage written on a claims-made basis if the policy provides for a retroactive date equivalent to the inception date of the CONTRACT or earlier, maintained during the full term of the CONTRACT. The minimum limits of coverage shall be in the following amounts: For engineering design contracts in the amount of $50,000 or less, insurance in an amount not less than five hundred thousand dollars ($500,000). For engineering design contracts over $50,000, insurance in an amount not less than one million dollars ($1,000,000). All policies, except Worker’s Compensation and Professional Liability, shall name the CITY as additional insured. All policies shall contain a waiver of subrogation in favor of the City and shall require the giving of written notice to CITY at least thirty (30) days prior to cancellation, non-renewal or material modification of any policies, evidenced by return receipt of United States Certified Mail. ENGINEER shall furnish CITY with copies of said policies or certificates evidencing such coverage. 6.10 Property All documents, including drawings, field notes, surveys, tracings, calculations, computer input and output, digital or computer files, etc., prepared by the ENGINEER pursuant to this contract shall become the property of the CITY. The ENGINEER may retain copies of all documents. Any reuse of the documents shall conform to The Texas Engineering Practice Act. 6.11 Governing Law This CONTRACT has been made under and shall be governed by the laws of the State of Texas. The parties agree that the performance and all matters related thereto shall be in Dallas County, Texas. Page 10 7. DOCUMENT EXECUTION IN WITNESS WHEREOF, the parties have executed this Agreement the ________ day of October, 2014. CITY OF UNIVERSITY PARK By: _________________________________ City Manager Attest: __________________________________ City Secretary Approved as to Form: By: __________________________________ City Attorney Or His Designee ENGINEER By: _________________________________ Binkley & Barfield - C&P, Inc. Michael Cummings, P.E. Attest: _________________________________ Secretary If ENGINEER’S firm is a corporation, affix corporate seal. SCHEDULE  OF  FEES January, 2014 SCHEDULE  OF FEESSCHEDULE  OF  FEES Rates  per  HourREIMBURSABLES Principal$200.00 Plotting:   Senior Project Manager$180.00 Senior Project Engineer$140.00 Translucent Bond Project Manager$160.00 24" x  36" Black & White$8.40 Project Engineer   $135.00 24" x  36" Color $36.00 Engineer I $110.00 11" x 17" Bond ‐ Black & White$0.35 Engineer II $95.00 11" x 17" Bond ‐ Color$1.25 E.I.T.$120.00 Sr. Civil Tech. $110.00 Sr. Civil Tech. I$95.00 Presentation Paper: Civil/Technician II$85.00 Direct Cost Plus 15% Designer$95.00          In‐House Printing/Copying: 24" x 36" Blacklines per sheet$2.00 24" x 36" 0.003 Mylar/sheet $18.00 Blackline Multi‐Sets/sheet$2.25 Clerical/Administration$75.00 In‐House Scanning:$1 per Square Foot Creating PDF FILE$5.00 Per Sheet Burn CD$25.00 MILEAGE Reimbursement to Employees$0.565 Deliveries and Special Printing:Direct Cost Plus 15% Long Distance TelephoneDirect Cost Plus 15% Travel Time     (Auto)         $0.565 per mile Air Travel        Direct Reimbursement q\files\docs\Fee Schedule with No Names 2014.xlsx 9/25/2014 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@78056D66\@BCL@78056D66.docx 2:37 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Gerry Bradley, Directorof Parks SUBJECT:Smith Park Playground Improvements BACKGROUND: Funding for the replacement of the Smith Park Playground has been approved within the Parks Department’s 2014-15 Capital Improvements Program. The project will include the replacement of the existing playground, the installation of rubberized surfacing, shade structures, and the installation of new tables, benches and drinking fountain. The improvements to the Smith Park Playground will conform to guidelines established at similar playgrounds within the City’s park system. The cost of the project, including a grant from the manufacturer is $ 191,110.30. Staff is requesting an additional $5,000.00 for funding project contingency; bringing the total project budget to $196,110.30. The project’s cost is under budget and the manufacturer’s pricing is listed on the Buy Board, meeting all established purchasing guidelines. RECOMMENDATION: Staff is requesting City Council approval of staff’s recommendation to support a purchase order to GameTime (Total Recreation Products, Inc.) in the amount of $191,110.30 for the Smith Park Playground Improvements QuantityQuantityQuantityQuantity Part #Part #Part #Part #DescriptionDescriptionDescriptionDescription Unit PriceUnit PriceUnit PriceUnit Price AmountAmountAmountAmount 1 RDU Game Time - TJ-08084-14-2A1R1 Custom PowerScape 5-12 Play Unit with Shade $56,757.00 $56,757.00 1 GRANT Game Time - GameTime Grant Matching Funds ($22,358.80)($22,358.80) 1 RDU Game Time - TJ-08084-14-2A2R2 Custom PowerScape 2-5 Play Unit With Shade $41,193.00 $41,193.00 1 GRANT Game Time - GameTime Grant Matching Funds ($16,227.53)($16,227.53) 1 RDU Game Time - 2 Bay PowerScape Swings with (2) Belt Seats, (1) Tot Seat and (1) Adaptive Seat $3,571.00 $3,571.00 6 T964-S6 UltraSite - 6' Charleston Bench, with back slat, surface mounted - Thermo Frame - Price Includes Discount of $1,025.10 $968.15 $5,808.90 2 PLX-36RB UltraSite - 36 Gallon Lexington Receptacle With Rain Bonnet Lid and Plastic Liner, surface mounted - Powder Coated - Price Includes Discount of $289.80 $821.10 $1,642.20 1 P238-V6 UltraSite - 6' Extra Heavy Duty Table, Diamond - PC Frame - Price Includes Discount of $113.85 $645.15 $645.15 2 P238H-V8 UltraSite - 8' Double Sided Extra Heavy Duty ADA Table, Diamond - PC Frame - Price Includes Discount of $244.20 $691.90 $1,383.80 1 PIP91514R2 GT-Impax - 5185 SF of Poured in Place Rubber Surfacing, 50% Black/50% Standard Color, Aromatic Binder, 8' Critical Fall Height - Price Includes Discount of $7,647.60, Freight and Installation of surfacing materials only. $59,828.16 $59,828.16 by Total Recreation Products, Inc. 17802 Grant Road Cypress, Texas 77429 Phone: 281-351-2402 Toll Free: 800-392-9909 Fax: 281-351-2493 QUOTE #69380 09/19/2014 TJ-08084-14 Rev 2 City of University Park - Smith Park City of University Park Attn: Gerry Bradley 4420 Worcola St. Dallas, TX 75206 Phone: 214-987-5486 Fax: 214-987-5499 gbradley@uptexas.org Ship To Zip: 75022 Page 1 of 4 QuantityQuantityQuantityQuantity Part #Part #Part #Part #DescriptionDescriptionDescriptionDescription Unit PriceUnit PriceUnit PriceUnit Price AmountAmountAmountAmount 1 INSTALL Game Time - Installation and Demo - Installation of above equipment, demo of existing unit, swings, whirl and 6 benches, unbolting existing tables and trash receptacles (customer responsible for moving to storage), removal and disposal of existing ewf, 5185 SF of compacted subbase for new poured in place surfacing, cutting and re-pouring concrete for new equipment to fit into area, install also includes security fence with 2 keep out signs. No other site work, demolition or concrete work included. Acquisition of any and all permits is the sole responsibility of the customer. $50,598.15 $50,598.15 freight calculated to Installer's Zip 75022: GRANT MATCHING FUNDS ARE AVAILABLE THROUGH Nov. 15th, 2014 OR UNTIL EXHAUSTION OF FUNDS. DUE TO RISING FUEL COSTS, FREIGHT SHOWN IS ESTIMATED FREIGHT. ACTUAL FREIGHT WILL BE DETERMINED AT THE TIME OF YOUR ORDER. PLEASE CONTACT US TO VERIFY CURRENT FREIGHT CHARGES PRIOR TO PLACING YOUR ORDER. Contract: Buy Board Contract #423-13 SubTotal: Discount: Estimated Freight: Total Amount: $182,841.03 ($178.55) $8,447.82 $191,110.30 Important Terms & Conditions - Please Review To place an order, you must provide one of the following: a Purchase Order assigned to GameTime; or this Price Quotation, signed by an authorized purchaser, with a check made payable to GameTime. GameTime will also accept payment by Visa, MasterCard, or American Express. A current approved credit application is required for Net 30 terms. This quotation explicitly excludes any and all items not expressly specified or identified above. No other product, equipment, or service is included, regardless of any Contract Document, Contract Section, Plans, Specifications, Drawing, or Addendum. Delivery for most GameTime equipment is approximately 5-6 weeks after all order documents have been received and payment terms have been approved. A current, approved credit application is required for N30 terms. To place an order, you must provide a purchase order or a signed Total Recreation Products, Inc. (hereafter described as TRP) quote, assigned to GameTime. Neither general contractor nor subcontractor contracts can be accepted. Purchase documents that contain indemnity or hold harmless conditions cannot be accepted. Retainage is not permitted. The following must be received before your order can be processed: complete billing and shipping addresses, a contact name and phone #, and all color choices. Manufacturer's colors may vary from year to year. You are responsible for ensuring that any required submittal approvals are completed before placing your order for processing. TRP reserves the right to limit submittals to one copy. Shop drawings, bluelines, sepias, are not available. Closeout documents may be limited to GameTime or TRP standard issue. If Sales Tax Exempt, a copy of your tax exemption form or resale certificate must accompany your order, or any applicable sales tax, will be added to your invoice. Most GameTime products are shipped from the Ft. Payne, AL plant. GameTime cannot hold orders or store equipment. Equipment is invoiced when shipped. If a cash sale, your payment must be received in full before the order will be processed. Contractors must also provide copies of current, fully executed bid/performance/payment bonds, as applicable. Pricing shown does not include any charges for permits, bonding, prevailing wage, or additional insured certifications. Unless otherwise noted, any quantity of surfacing or playcurbs quoted has been calculated specifically for the equipment and layout shown. No additional surfacing or curbing is included, and no allowance has been made, for an unleveled, convoluted or larger site, or for a different layout. Neither GameTime nor TRP is responsible for any surface, curbing, border, or drain that is provided by others. Also please confirm that your area is adequate for the equipment that you are purchasing. QUOTE #69380 09/19/2014 TJ-08084-14 Rev 2 City of University Park - Smith Park Page 2 of 4 Installation charges, if quoted, are for a "standard" installation unless specifically noted to be otherwise. Installation charges are due upon completion. Standard installations are based upon a soil work site, that is freely accessible by truck, (no fencing, tree/landscaping or utility obstacles, etc.), and level, (+/- 1-2% maximum slope). An accessible water source must be available to the installer. Any site work that is not expressly described is excluded. Standard installation does not include any extra or additional machinery, drillers, etc., for rock excavation. If rock conditions are encountered, additional charges will apply. Standard installations generally require from 2-10 business days to complete, depending upon the amount and type of equipment, site conditions, weather, and the installer's schedule. Work may or may not be performed in consecutive days. Playcurbs are staked in, not set in concrete. Engineered wood fiber and shredded rubber surfacings are spread, not compacted, rolled, or watered. Landscape timbers are not warranted. The Customer is responsible for locating and clearly marking all underground utilities in the installation area before any installation work can begin. The installer is not responsible for damages, repairs, or discontinuance of business due to damaged utilities. If applicable, sprinkler system locates, re-working and repairs are excluded from installation charges. Installation of all products, (equipment, borders, fall surfacing and amenities) are as quoted and approved by acceptance of quotes and drawings. As a precautionary measure, work in progress areas will be taped off at the end of the workday. Pier spoils from installation shall be spread at site, site will be left rough grade. Trash disposal is the responsibility of the Customer. The installer is not responsible for any damages or re-work resulting from after hours events or activities during the work in progress period. Temporary fencing is only provided by specific request, and additional charges will apply. Collectively and/or individually, not the manufacturer, TRP, their representatives, nor the installation company shall be held liable for any damages resulting from misuse, vandalism, or neglect. Any deviations from approved and accepted placement of all items, along with additional work, over and above quoted items, will be chargeable to the customer. Once work is completed the customer will be notified if present at the job site, and all responsibility of any new work will be transferred to the customer. The customer is responsible for maintaining the integrity of completed installation work until all components have seated and/or cured (concrete footings, etc.). Your project site must be completely prepared and ready to receive your equipment before any installation work begins. Acquisition of any and all permits is the sole responsibility of the customer. Additional charges may be billed for any extra hours or trips needed as a result of the work site not being ready. Neither the installation contractor, GameTime nor TRP will be responsible for delays caused by shortages, incorrect parts, weather conditions, other contractors, or lack of site readiness. If you are receiving your equipment, you are responsible for unloading and accepting delivery from the freight company and reporting any damaged freight or shortages on the freight bill at the time. You will also be responsible for a complete inventory of your received equipment and reporting any discrepancies to us immediately. Neither the freight company nor the manufacturer will resolve shipment discrepancies that are not reported immediately. Make sure that all items have been received before any type of installation work is scheduled. The freight carrier will be instructed to call your designated contact 24 hours before delivery to arrange a delivery appointment. Once accepted, orders can only be changed or canceled with the consent of GameTime and TRP, and on terms that will indemnify them against loss. Changed or canceled orders are subject to a $100.00 service charge. Additionally, canceled orders are subject to a 25% restocking fee, plus freight charges (to and from). Built-to-order equipment orders are non-cancelable. Changes to orders that have been shipped and invoiced are subject to the above $100.00 service charge plus additional restocking/return charges of 25%. Non-returnable items shall be charged at full invoice value. Any return transportation charges shall be for the Buyer's account. Replacement parts are also subject to the cancellation/returns policy. Please carefully review any research information that has been sent to you and confirm that you are ordering the correct replacement parts for your equipment. This quotation is valid 30 days. After 30 days, please request an updated quote. Prices may be subject to material and fuel surcharges at the time of shipment and are subject to change without notice. Current prices will apply at the time of shipment. Acceptance of this quote indicates your agreement to GameTime's credit terms, which are net 30 days, FOB shipping with approved credit. Any deviations from this proposal may invalidate the quoted pricing and/or terms. THIS QUOTATION IS SUBJECT TO POLICES IN THE CURRENT GAMETIME PARK AND PLAYGROUND CATALOG AND THE FOLLOWING TERMS AND CONDITIONS. OUR QUOTATION IS BASED ON SHIPMENT OF ALL ITEMS AT ONE TIME TO A SINGLE DESTINATION, UNLESS NOTED, AND CHANGES ARE SUBJECT TO PRICE ADJUSTMENT. PURCHASES IN EXCESS OF $1,000.00 TO BE SUPPORTED BY YOUR WRITTEN PURCHASE ORDER MADE OUT TO GAMETIME, C/O TOTAL RECREATION. Acceptance of quotation: Accepted By (printed): _________________________________ P.O. No: _____________________________ Signature: ___________________________________________ Date: ________________________________ Title: _______________________________________________ Phone: ______________________________ Facsimilie: __________________________________________ Purchase Amount: $191,110.30 QUOTE #69380 09/19/2014 TJ-08084-14 Rev 2 City of University Park - Smith Park Page 3 of 4 Order Information: Bill To: _____________________________________________ Ship To: _________________________________________ Company: ___________________________________________ Company: ________________________________________ Attn: ________________________________________________ Attn: ____________________________________________ Address: _____________________________________________ Address: _________________________________________ City, State, Zip: _______________________________________ City, State, Zip: ___________________________________ Contact: ______________________________________________ Contact: _________________________________________ Email Address: _______________________________________ Email Address:_____________________________________ Tel: _________________________________________________ Tel: ____________________________________________ Fax: _________________________________________________ Fax: ___________________________________________ QUOTE #69380 09/19/2014 TJ-08084-14 Rev 2 City of University Park - Smith Park Page 4 of 4 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@CC05CE60\@BCL@CC05CE60.docx 12:17 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:George Ertle, Assistant to the City Manager SUBJECT:Consider approval of a License Agreement with Extenet Systems, Inc. for Distributed Antenna Systems and small cell networks in the City’s public rights-of-way BACKGROUND: Approximately one year ago, ExteNet Systems, Inc. ("ExteNet") approached the City about placing Distributed Antenna Systems ("DAS") or small cell networks in Town's rights-of-way. These systems are used to support cell phone networksand consist of antenna nodes mounted on existing utility poles that areconnected by fiber optic cable. The fiber optic cables connect to a central hub location, located at the Chase Bank building in Snider Plaza. Each antenna node consists of two cabinets, one of which is a control box, and the other is a battery back-up unit. Each node also hasa small power meter box and disconnect switch, each of which will not exceed three feet (3') in height, two feet (2') in width, and eighteen inches (18") in depth. ExteNet has a pole license agreement with Oncor and all facilities will be located in the alley rights-of-way. Equipment will be located thirteen feet (13’) above grade to avoid interference with Sanitation vehicles operating in the alleys. Initially, ExteNet represented that a license was not needed for the use of Cityrights-of- way. In further discussions, it was agreed that this system is not used to provide for telecommunicationsaccess lines, but for cell systems, and a license is needed. The Town of Highland Park and the City of University Park worked together toa license agreement with the assistance of Boyle & Lowry, L.L.P. The License Agreement provides for a payment of $200 per node per month, or 5% of gross receipts attributable to the City, whichever is greater. It isestimated that there will be 7nodes in the City, which would represent a payment of approximately $16,800per year. The License Agreement requires ExteNet to provide proof of insurance and to indemnify the Cityand its agents. The Town of Highland Park approved an identical version of this license agreement on September 8, 2014. RECOMMENDATION: Staff recommends approval. The Public Utilities Advisory Committee reviewed this agreement on July 14, 2014 and recommended approval. 1 LICENSE AGREEMENT THIS AGREEMENT (“License Agreement”) is made and entered into as of this _________day of ___________, 2014, (the “Effective Date”) by and between the Cityof UniversityPark, a municipal corporation and home-rule municipality of the State of Texas with its principal offices located at ______________University Park,TX 75____“Licensor” or the “City”) and ExteNet Systems, Inc.,a Delawarecorporation with its principal place of officeslocated at 3030 Warrenville Road, Lisle, Illinois 60532(“Licensee” or “Company”or “ExteNet”), each referred to as a “Party” or jointly as the “Parties”. RECITALS WHEREAS, ExteNet, is a certificated telecommunications provider licensed by the Texas Public Utility Commission to offer facilities-based and resale telecommunications services in the state, but does not currently offer retail telecommunications service in UniversityPark; and WHEREAS, the Cityowns and/or controls and regulates public street and alley rights- of-way and public utility easements within the boundaries of the Cityof UniversityPark; and WHEREAS, ExteNetdesires to install and operate a DASor small cell Network within the boundaries of the City, subject to the requirements of this License Agreement and pursuant to city ordinances and state and federal laws; and WHEREAS, the installation, maintenance, and operation of ExteNet’s DAS Network on publicrights-of-way will be performed in a manner consistent with all applicable City ordinances and any other applicable regulations; and WHEREAS, ExteNethas entered into one or more Pole Attachment Agreements with Oncoror Southwestern Bell d/b/a AT&T or other utility company with existing poles that serve the utility company’s network (hereafter also referred to, in the singular or plural, as “utility company” or “utility companies”)for the purpose of installing its small cell or DAS Network on utility companypoles erected on or about public rights-of-way; and WHEREAS, installation of ExteNet's DAS Network is in the public interest and will further the convenience of the business community and citizens of the Cityof UniversityPark; and WHEREAS, the Cityis willing to grant ExteNeta non-exclusive license to install, maintain, operate, repair and replace its DAS or small cell Network or micro or small cell installations on existing power or telephone poles within discrete segments of the rights-of-way, primarily alleys or rear easements, subject to the requirements of this License Agreement and the rights granted to Licensee herein, and pursuant to permits issued by the City’s Director of Engineering Services; WHEREAS, Licensee’s DASor small cellNetwork is subject to the Communications Act of 1934, as amended, including but not limited to Section 253 thereof, 47 U.S.C. § 253 2 (hereinafter referred to as the “Federal Telecommunications Laws”), which authorize the Cityto regulate its Rights-of-Way. WHEREAS, the License Agreement is consistent with Section 54.205 of the Public Utility Regulatory Act (Texas Utilities Code) which reserves “a municipality’s historical right to control and receive reasonable compensation for access to the municipality's public streets, alleys, or rights-of-way or to other public property”; and WHEREAS, the Cityhereby setsforth rights, duties and obligations of ExteNetin this License Agreement. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN SET FORTH, IT IS AGREED BY THE PARTIES AS FOLLOWS: ARTICLE 1 DEFINITIONS As used herein, the following terms shall have the following meanings. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular include the plural. The word “shall” is always mandatory and not merely permissive. 1.1 “Aerial Project” means the construction or installation of Network Facilities above ground in the public Rights-of-Way, by installing new wooden and metal utility poles to which Network Facilities are then attached, or by attaching Network Facilities to existing utility poles. 1.2 “AT&T” shall mean Southwestern Bell Telephone Company/b/a AT&T Texas, AT&T Kansas, AT&T Missouri, AT&T Arkansas and/or AT&T Oklahoma (AT&T)for the purpose of installing its DAS or small cell Network on Southwestern Bell Telephone Company, d/b/a AT&T Texas, AT&T Kansas, AT&T Missouri, AT&T Arkansas and/or AT&T Oklahoma (AT&T). 1.3“Cable Service” shall have the meaning set forth in Section 602 of the Communications Act of 1934, as amended, 47 U.S.C. § 522(6). 1.4“DAS Network” or “Distributed Antenna System Network”or “small cell network”means the Licensee’s network of spatially separated antenna nodes which, as to size, will not exceed three feet in height, two feet in width and one foot in depth, located in the Cityof University Park Public Rights-of-Way, on currently existing Oncor or other utility company distribution poles or poles installed by Oncor due to electric delivery system needs or other utility company pole installed for existing system needs and not installed for purposes of a DAS or small cell network,and as identified in Exhibit "A" and connected to a common source via fiber optic cable providing DAS wireless service within a geographic area, and shall not include any additional poles not owned by Oncor or other utility company and further shall not include any equipment 3 in excess of or not describedin Exhibit “A.” DAS Network does not mean a cellular tower as defined by city ordinance or federal or state law. “DAS” and “small cell” shall have the same meaning and use of one word or phrase shall include the other. 1.5“Director” means the Licensor’s Director of Engineering Services -Cityof UniversityPark. 1.6“Facility” shall mean each antenna site, space or equipment used by Licensee for the purpose of providing services. 1.7“Gross Revenues” means all revenues received by Licensee from the operation of the Network utilizing Oncor distribution poles or other existing utility company poles in the Rights- of-Way, including, but not limited to all rents, payments, fees and other amounts actually collected from any Third Party whose connections do not qualify as access lines under Texas PUC Substantive Rule 26.461 and received by Licensee and allocable to the period within the Term or any Renewal Term pursuant to any sublease agreement, together with any option fees collected from any actual or prospective Third Party for telecommunications services provided with respect to the DAS or small cell Network, but exclusive of: (a) anyreimbursements or pass-throughfrom or contributions by Third Party to Licensee: i. for utility charges, taxes and other pass-through expenses, or ii. in connection with work performed or equipment installed by Licensee; (b) construction management or supervision fees related to the installation of the Third Party’s equipment; (c) initial contributions of capital by Third Party to reimburse Licensee in whole or in part for the installation of the Network Facilities in the DAS Network; and (d) “upfront bonuses” or other incentive fees or remuneration paid by Third Parties to Licensee as an incentive or reward for securing multiple sites for Third Parties or which are not totally and directly related to the location of the Third Parties on the DAS or small cell Network. For the purpose of this definition, all revenues from telecommunications services that actually qualify as access lines under Texas PUC Substantive Rule 26.461 shall be excluded from Gross Revenues. The obligation to include revenues from wholesale or retail customers ends when their contracts expire or terminate. 1.8“Licensed Areas” means the portions of the Rights-of-Way in which Licensee is authorized to construct and install Network Facilities, as depicted and described on Exhibit “A” attached hereto and incorporated herein by reference for all purposes allowed by law and for which work a permit has been obtained by the Licensee from the City. 1.9“Network Facilities” means Licensee’s communications equipment and facilities necessary to serve the DAS or small cell Network, including fiber optic cables and copper wiring, currently 4 existing Oncor poles, guying, conduits, manholes, hand holes, pull boxes, control boxes, repeaters, power sources, fittings, access points, or other physical devises used to provide DAS service and similar furnishing and improvements located within, or above the Public Rights-of- Way, but not including any separate poles or antennas. 1.10 “Node”means a remote communications point of a distributed antenna system (DAS) or small cell system consisting of at least one antenna for the transmission and reception of a wireless service provider’s RF signals and one or more of the following attached to a utility pole, streetlight pole, or other support structure: equipment cabinets, amplifiers, receivers, battery back-up units, meters, power supply cabinets, disconnect switches, and/or related couplers, cables, wires, conduit, brackets, through bolts, and other equipment and hardware necessary for the operation of the DAS or small cell network and/orprovision of wireless or wireline telecommunications service. 1.11“Oncor” means the electric delivery company known asOncor or any successor electric delivery company. 1.12“Projects” means Aerial Projects and Underground Projects, collectively, asthose terms are defined in this License Agreement. 1.13“Rights-of-Way” or “Public Rights-of-Way” means the surface of, air space above, and space below, any public highways, roads, streets, alleys, sidewalks and utility easements, as the same may now or hereafter exist within the boundaries of the Cityand within the City’s jurisdiction now or hereafter-held by the Cityor over which the Cityexercises any rights of management control, but only as necessary to build the DASor small cellNetwork as identified in Exhibit “A,”and for purposes of this License are limited to alleys or easement in the rear of properties, with other locations only allowed with permission of the City Manager or designee. The term includes any Texas Department of Transportationright-of-way. 1.14“Small cell”means the Licensee’s network of spatially separated antenna nodes which, as to size, will not exceed three feet in height, two feet in width and one foot in depth, located in the Cityof UniversityPark Public Rights-of-Way, on currently existing Oncor or other utility company distribution poles or poles installed by Oncor due to electric delivery system needs or other utility company pole installed for existing system needs and not installed for purposes of a DAS or small cell network,and as identified in Exhibit "A" and connected to a common source via fiber optic cable providing DAS wireless service within a geographic area, and shall not include any additional poles not owned by Oncor or other utility company and further shall not include any equipment in excess of or not describedin Exhibit “A.” DAS or small cell Network does not mean a cellular tower as defined by city ordinance or federal or state law. “DAS” and “small cell” shall have the same meaning and use of one word or phrase shall include the other. 1.15“Texas PUC” means the Public Utility Commission of Texas. 5 1.16“Third Party” means any person or entity that is not a Party. 1.17“Underground Project” means the construction or installation of Network Facilities in, through, or below the surface of the Rights-of-Way. ARTICLE 2 GRANT OF LICENSE AND OTHER PERMISSION 2.1 The Cityhereby grants ExteNeta non-exclusive license to use and occupy that portion of the Rights-of-Way asshown in Exhibit “A,” limited to alleys and easements in the rear of properties, which for purposes of this Agreement are limited to alleys or other easement in the rear of properties or other right-of-way locations only with permission of the City Manager or designee, to locate, erect, install, construct, replace, reconstruct, repair, relocate, maintain and operate its DAS or small cell Network in, across or under the Rights-of-Way in Exhibit “A” including all necessary Network Facilities in connection with the DASor small cell Network only, subject to the laws of the State of Texas and the City’s charter and laws as they exist now or may be amended from time to time and subject to the conditions outlined in this License Agreement. Licensee shall installits Network Facilities consistent with the City’s Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, and as such ordinances and standards may hereafter be amended. ExteNet may use fewer locations than shown on Exhibit “A.” At the conclusion of construction, ExteNet shall provide “as-built” plans, in paper and digital format. 2.2 The Licensee’s right to use and occupy the Public Rights-of-Way shall not be exclusive and the Cityreserves the right to grant a similar use of same to itself or any person or entity at any time during the period of this License Agreement. 2.3 The Licensee shall not have the ability to expand its DAS Network or small cell network and Network Facilities beyond Rights-of-Way as depicted in Exhibit “A.” Any additions or expansions of the Licensee’s DASor small cell Network beyond that shown in Exhibit “A” shall require the approval of an amendment or supplement to this License Agreement by the City Council. This License Agreement authorizes ExteNetor its agents to construct, install, own and operate the DAS or small cell Network and Network Facilities in public Rights-of-Way, together with the right to enter the Licensed Areas to maintain, locate, upgrade, repair, move, reconstruct, relocate, remove and replace Network Facilities in accordance with the City's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, and as such ordinances and standards may hereafter be amended. 2.4 Consistent with the City's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, as amended, the Director shall assign priorities among competing private uses of the Public Right-of-Way according to the order completed permit applications are received. 2.5 In consideration for the rights granted under this License Agreement, Licensee waives all claims, demands, causes of action, and rights it may assert against the Cityincluding but not 6 limited to any loss, damage, or injury to any equipment or any loss or degradation of services not caused solely by the City. 2.6 Licensee shall use Network Facilities in the Licensed Areas solely for the purpose of operating the DAS or small cell Network including all services associated with and ancillary to a distributed antenna system, including RF Transport services, facilities-based backhaul services, lease of broadband communications services and Network Facilities to other communications providers and to enterprises, as well as transport for in-building wireless networks. 2.7 This License Agreement only concerns the right to use the right-of-way. This License does not grant any permission or authority to attach to poles owned by a private entity. Permission to attach to poles must be obtained from the entity that owns the pole. 2.8All uses of the Licensed Areas not described herein are prohibited, including Cable Service. Nothing in this License Agreement shall be deemed to prohibit Licensee from using Network Facilities to offer Cable Service if Licensee first obtains a separate State-Issued Certificate of Franchise Authority from the Texas PUC and a cable system franchise from Licensor, nor shall Licensee be prohibited fromoffering wholesale communications connections and services to Third Party operators of Cable Service licensed by and through the Texas PUC and the City. 2.9 In case of conflict between this licensee and the Right-of-Way Management ordinance, the Right-of-Way Management ordinance shall prevail. 2.10 ExteNet’s DAS Network or Distributed Antenna System Network or small cell network will not exceed, one facility or node per pole, which shall not be greater thanthree feet in height, two feet in width and one foot in depth, located in the Cityof UniversityPark Public Rights-of-Way, on currently existing Oncor or other utility company distribution poles or poles installed by Oncor due to electric delivery needsor other utility company pole installed for existing system needs and not installed for purposes of a DAS or small cell network, and as identified in Exhibit "A" and connected to a common source via fiber optic cable providing DAS wireless service within a geographic area, and shall not include any additional poles not owned by Oncor or other utility company and further shall not include any equipment in excess of or not described in Exhibit “A.” DAS Network does not mean a cellular tower as defined by city ordinance or federal or state law. Each facility or node shall display the name of the company owning the node and an identification number. All work shall be coordinated with the City’s Public Works Department. 2.11 ExteNet’s DAS or small cell Network or equipment shall be installed in a safe manner, meeting all Codes and in a manner that will not interfere with the use of the streets or sidewalk by the travelling public. Each node or facility shall be at least thirteen feet (13’) above street or alley grade. If that height is not possible, ExteNet shall either not install the node or shallask the City Public Works 7 Director for an exception and place the node at the location approved by the Public Works Director. 2.12If new conduit is installed by ExteNet, ExteNetagrees to reserve and make available space or innerductof at least two inches (2”) for City use. ARTICLE 3 TERM 3.1 Initial Term. The initial term of this License Agreement shall commence upon execution by both parties and, unless earlier terminated pursuant to any provision hereof, shall expire ten (10) years after the Effective Date, on December 31, 2024. 3.2 Renewal Term(s). Upon application by the Licensee, this License Agreement may be renewed for up to three additional successive five (5) year terms by the Citypursuant to the procedures established in this Section, and in accordance with the applicable laws,regulations, and the rules of the State of Texas. a. At least six (6) months prior to the expiration of the License Agreement, the Licensee shall inform the CityManager in writing of its intent to seek renewal of the License Agreement. During this timeperiod, the parties may re-negotiate terms of the License Agreement. b. Upon determination by the CityManager that the Licensee’s performance is satisfactory, including payment of all fees, each renewal, subject to the agreed re-negotiation of compensation and other terms, may be granted for one period of five (5) years. c. Cityshall not unreasonably withhold any Renewal Term of the License Agreement upon such terms and conditions as the Parties may agree provided that at the time Licensee requests renewal Licensee is in substantial compliance with all terms set forth in this License Agreement, including the payment of allfees. ARTICLE 4 HOLDING OVER 4.1 In any circumstance not described in Article 3 whereby Licensee remains in occupancy of the Rights-of-Way after expiration of this License Agreement, as extended, such holding over shall not be deemed to operate as a renewal or extension of this License Agreement, but shall only create a right of use from month to month (the sum of which months shall be “Hold Over Period”) provided that Licensee continues to make all required payments and conforms to all other requirements of this License Agreementand the Right-of-Way Management ordinance and all other applicable law, and provided further thatthis License Agreement may be terminated at any time during the Hold Over Period by Licensor or Licensee upon sixty (60) days written notice to the other. 8 ARTICLE 5 EARLY TERMINATION 5.1 Licensee or Licensor shall have the right to terminate this License Agreement early, without any further right or obligation to the other party by giving the other party ninety (90) days advance written notice and by removing the DAS or shall cell Network and all Network Facilities from public Rights-of-Way within ninety (90) days of the effective date of the notice. ARTICLE 6 ABANDONMENT OF NETWORK FACILITIES 6.1 Whenever Licensee intends to abandon any of its Network Facilities within a Right-of-Way, it shall submit to the CityManagerand designeean application describing the Network Facilities it proposes to be abandoned and the date of the proposed abandonment. Citymay require Licensee, at Licensee’s expense: (a) to remove the Network Facilities from the Public Right-of- Way; or (b) to modify the Network Facilities in order to protect the public health and safety or otherwise serve the public interest. If the Licensee fails to respond to the City’s request to remove or modify the Network Facilities within sixty (60) days, the Network Facilities proposed to be abandoned shall upon the sole election and determination of the Citybe considered the property of the Cityand subject to the City’s use, modification, demolition, removal or conveyance without any further compensation or benefit therefor being provided to Licensee. If Citydetermines that any Network Facilities so abandoned must be demolished, modifiedand/or removed to protect the public health and safety or otherwise serve the public interest then Licensee shall be responsible for and liable to the Cityfor any and all costs associated with such demolition, modification and/or removal. 6.2 Any fiberoptic cable abandoned by Licensee shall be considered the property of the City. 6.3 Notwithstanding the foregoing, Licensee shall have no obligation to remove any pole or conduit that is owned by a Third Party provided that said pole or conduit is properly permitted, constructed and installed and that such Third Party owner is then currently licensed by and through the Texas PUC and the City. 6.4 If Licensee has been granted permission to and has installed a new utility pole pursuant to an Aerial Project under this License Agreement and a Third Party has acquired rights to attach its facilities to that pole, Licensee shall notify Licensor in writing of its intention to abandon such pole in place, and Licensor shall at no cost or expense to Licensor havethe right to take ownership of such pole in its own name or require that such pole be transferred to a Third Party having attached facilities to it provided that said pole is properly permitted, constructed and installed and that such Third Party transferee is licensed by and through the Texas PUC and the City. 6.5 In lieu of removing conduits installed by Licensor pursuant to an Underground Project, Licensee may elect to transfer ownership of the conduits to a Third Party having an appropriate license from the Texas PUC and the Cityto own such facilities in public Rights-of-Way, or may 9 abandon such conduits in place and transfer ownership to Licensor, but only with approval of the Licensor. 6.6 If ExteNetabandons any Network Facilities in place pursuant to this section, Licensee shall remain responsible for any such pole or conduit, save and except to the extent only that Licensee transfers such pole or conduit to a Third Party. Notwithstanding the provisions in section 6.5, at no time and under no circumstances shall Citybe deemed the owner or responsible party for any property abandoned in place by ExteNetsave and except only properly installed fiber optic cable belonging to the City. ARTICLE 7 FEES AND PAYMENTS 7.1 To compensate the Cityfor the use and occupancy of the Public Rights-of-Way or Oncor Polesor other utility poles, Licensee shall be required to pay the following fees: (a)Fees. (1)Licensee shall pay a minimum monthly fee of two hundred dollars ($200.00) per each facilitybuilt as shown on the “as built” plans. If “as built” plans are not provided, the compensation will be based on the facilities as shown in Exhibit “A” including any facilities which may be added upon proper amendment of this License. The minimum monthlyamount may be renegotiated each five (5) years. Licensee shall submit to the City a list of the facilities and the locations of the facilities when the system is built out and by December 31, 2015 and each subsequent year until the system is completely built out. Licensee shall update the build out list within sixty (60) days of any changes. (2)The Licensee shall pay the Cityfor the use of Public Rights-of-Way fees totaling five percent (5%) of Gross Revenues from the DAS or small cell Network. The percentage of Gross Revenuesfees will be paid during the Initial Term any subsequent Renewal Term(s) of this License Agreement and any Hold Over Period on a monthly basis as prescribed under subsection (c). If the five percent (5%) of gross revenues fee exceeds the minimum monthly payment, the minimum monthly payment shall not be due for that quarter. (b)Fiber Strands. In addition to the payments, Licensee shall make an in-kind contribution to the City of four (4) strandsof the fiber installed in the Telecommunications Network (“Licensed Fiber”). In the event that such consideration is declared illegal by any court, legislature or governmental agency of competent jurisdiction, Licensee and the Cityshall negotiate for mutually acceptable alternate consideration. The connection of electronic equipment to the Licensed Fiber shall be the responsibility of the Cityand will be made at the sole cost and expense of the City. The costs of construction, maintenance, repairand operation of the City’s network, facilities and equipment not comprising a part of the Telecommunication Network shall be the sole responsibility of the City. The Citywill enjoy the use of the Licensed Fiber under the terms and conditions of an indefeasible right of use (IRU) agreement to be negotiated by the parties within thirty (30) business days of CityCouncil approval of this License Agreement, which will be included as Exhibit “B” to this License Agreement. 10 (c) Remittance of Fees. Each monthly fee payment will be due on or before the first day of each month. Each payment shall be accompanied by a statement, substantially in the form provided in Exhibit “C,” which mathematically verifies the accuracy of the payment. Exhibit “B” is a financial report which will include Gross Revenues received during the applicable reporting period, a calculation of five percent (5%) of Gross Revenues, with property taxes excluded from such Gross Revenues, and an explanation that the annual payment is made pursuant to this License Agreement. The financial report will be certified by an officer of the Licensee and will be accompanied by supporting documents to verify the accuracy of the reported information. The last payment under this License Agreement shall be paid within thirty (30) calendar days following termination or expiration of the License Agreement including any renewal term(s) and any Hold Over Period. 7.2 Annexation. Subsequent to the Effective Date of this License Agreement, should the City exercise the right to annex any area in which the Licensee has installed a portion of its DAS Network, the Licensee shall be responsible for paying additional fees under this License Agreement associated with DAS Network that previously was found outside the City’s geographic boundaries, but following annexationwill lie within the new Cityboundaries. The effective date of the additional payment will be consistent with the annual payment process as defined in Section 7.1, above. The additional payment will be prorated by the number of months during the previous year following annexation. 7.3 Permit Fees. In addition to the aforementioned fees, the Licensee shall be required to obtain construction permits from the Director in order to install, construct, and maintain the DAS Network and Network Facilities in thePublic Rights-of-Way, including paying the appropriate permitting fees. 7.4 Late Fees. Fees are deemed paid only when Licensor actually receives payment. Any Fee payment not timely paid shall accrue simple interest at the rate of one-and-one-half percent (1½ %) per month or the legal rate from the date the amount first came due until paid. ARTICLE 8 RIGHT TO AUDIT 8.1 The City, or its designees, shall have the right to audit, examine or inspect, at the City’s election and at City’s expense, all of the Licensee’s records at any and all Licensee’s locations relating to the DAS Network (“Licensee’s Records”) during the term of the License Agreement and any renewal term or Hold Over Period and retention period herein. The audit, examination or inspection may be performed by a Citydesignee, which may include its internal auditors or an outside representative engaged by the City. The Licensee agrees to retain the Licensee’s Records for a minimum of four (4) years following termination of the License Agreement, unless there is an ongoing dispute under the License Agreement, then, such retention period shall extend until final resolution of the dispute. 8.2 The Licensee’s Records shall be made available at the Licensee’s designated offices within thirty (30) calendar days of the City’s request and shall include any and all information, materials and digital data of every kind and character generated in connection with or related to the 11 telecommunications network which is the subject of this License Agreement or other information generated as a result of this License Agreement. Examples of Licensee’s Records include but are not limited to billings, billing reports, remittance records, books, trial balances, subsidiary ledgers, general ledgers, audited financial statements, invoices, receipts, customer contracts and other documents that are necessary to substantiate Gross Revenues. The Licensee bears the cost of producing, but not reproducing any and all requested business records. 8.3 The Cityagrees that it will exercise the right to audit, examine or inspect only during regular business hours. The Licensee agrees to allow the City’s designee access to all of the Licensee’s Records deemed necessary by Cityor its designee(s), to perform such audit, inspection or examination. The Licensee also agrees to provide adequate and appropriate work space necessary to Cityor its designees to conduct such audits, inspections or examinations if required. 8.4 If an audit inspection or examination discloses that Licensee’s remittances to the Cityas previously reported for the period audited were underpaid, Licensee shall pay within thirty (30) days to the Citythe underpaid amount for the audited period together with interest at the Interest Rate of five percent (5%) from the date(s) such amount was originally due. Further, if such understatement was in excess of five percent (5%) of Licensee’s actual remittances to the City, the reasonable actual cost of the City’s audit shall be reimbursed to the Cityby the Licensee. 8.5 Failure by the Licenseeto comply with the provisions of this audit clause may result in termination by the Cityof all rights provided under this License Agreement to the Licensee. In the event of termination, the Licensee is responsible for the cost of termination and agrees to hold the Cityharmless for any and all claims resulting from termination due to the Licensee’s failure to comply with the audit clause. ARTICLE 9 LIMITED RIGHTS/SUBORDINATE USE 9.1 This License Agreement is intended to convey limited rights and interests as set forth herein only as to those alleys and locationsspecifically identified in the attached Exhibit “A” in which the Cityhas an actual interest. It is not a warranty of title or interest in any Rights-of-Way; and it does not confer rights otherthan as expressly provided herein, or as provided in the City’s charter, ordinances, enabling legislation or permits. This License Agreement does not deprive the Cityof any powers, rights or privileges it now has, or may later acquire in the future, to use, perform work on or to regulate the use of and to control public Rights-of-Way. 9.2 ExteNet’s use of the public Rights-of-Way is subject to theexisting uses andprior and continuing right of the Cityto use the specified Rights-of-Way for municipal purposes. ARTICLE 10 BREACH AND DEFAULT 10.1 Defaults Specific to Licensee. Licensee shall comply with the terms and provisions of this License Agreement and shall cause all persons using the Licensed Areas under the authority granted Licensee by this License Agreement to do the same. Licensee’sfailure to do so shall be a 12 material breach by Licensee of this License Agreement. The Licensee shall not be excused from complying with any of the terms and conditions of this License Agreement by the previous failure of the Licensor to insist upon or seek compliance with such terms and conditions. This entire License Agreement is made upon the condition that each and every one of the following events shall be deemed an “Event of Default” by Licensee of Licensee’s material obligations under this License Agreement: a. Licensee is in arrears in the payment of any Fee and does not cure such arrearage within thirty (30) days after receiving written notice from Licensor. b. Licensee fails to maintain any insurance required by this License Agreement. Notwithstanding the preceding sentence, such failure shall not be a material breach if within ten (10) days after notice from Licensor, Licensee provides to Licensor the required insurance and the required evidence thereof. Such insurance must apply retroactively so that there is no gap in the insurance coverage required by this License Agreement. c. Licensee is the subject of a voluntary or involuntary bankruptcy, receivership, insolvency or similar proceeding or an assignment is made of any of Licensee’s property for the benefit of creditors. d. Licensee fails to obtain or maintain any licenses, permits, or other governmental approvals pertaining to the use of the Rights-of-Way, or any bond required under this License Agreement or timely pay any taxes pertaining to the Rights-of-Way and does not cure such failure within thirty (30) days. 10.2 Default by Licensor or Licensee. This entire License Agreement is made upon the condition that either Party shall be deemed to have committed an Event of Default if either of them shall fail to or neglect to timely and completely do or perform or observe any provisions contained herein and such failure or neglect shall continue for a period of thirty (30) days after the Party in default has been notified in writing of such failure or neglect. The defaulting Party will take immediate corrective action to eliminate any such conditions(s) and will confirm in writing to the non-defaulting Party within thirty (30) days following receipt of written notice that the cited condition(s) has ceased or been corrected. Any condition which cannot be corrected within such thirty (30) day period will not be considered an Event of Default so long as thedefaulting Party diligently proceeds to correct such condition upon receipt of notice from the non-defaulting Party. 10.3 Remedies. Upon the occurrence of any Event of Default or at any time thereafter, Licensor or Licensee may, at its option and from time to time, exercise any or all or any combination of the following cumulative remedies in any order and repetitively: a. Terminate this License Agreement; b. Assert, exercise or otherwise pursue any and all rights or remedies, legal or equitable, against the Party in default; or 13 c. In the case of Licensor, unilaterally and without Licensee’s or any other person’s consent or approval, draw upon or obtain the value of any bond, in an amount sufficient to cure Licensee’s Event of Default. 10.4 ForceMajeure. Notwithstanding any other provision of this License Agreement, neither Party shall not be liable for delay in the performance of, or failure to perform, any of its obligations hereunder if such delay or failure is due in whole or substantial partto any fire, flood, accident, explosion, strike, labor disturbance, war, insurrection, sabotage, terrorist act, condemnation, prohibition or expropriation by any government or governmental agency, delays attributable to encountering hazardous materials orhistorical relics, unavailability or shortage of materials, or Acts of God, provided, however, that force majeure shall not excuse any failure, delay or refusal in making any payment when due. ARTICLE 11 NO ADVERSE IMPACT UPON OTHER AUTHORIZED USERS. 11.1 Licensee recognizes that its use of the Public Right-of-Way is non-exclusive with respect to utilities and other entities occupying such Right-of-Way, and that the Cityspecifically reserves the right to install, and permit others to install utility facilities in the Rights-of-Way. In permitting such work to be done by others, the Cityshall not be liable to Licensee for any damage caused by those persons or entities. Licensee shall adhere to the rules regarding the respective rights of such utilitiesand other entities as established by state and federal law, the UniversityPark Code and Charter, including all International Codes,as adopted, and by commonly accepted industry codes regarding engineering, safety, and construction of right-of- way facilities. 11.2 Licensee shall be required to relocate facilities at its own cost if required to do so by City due to a public works or other governmental use of the right-of-way. 11.3Except as permitted by applicable law or this License Agreement, ExteNetshall not damage, remove or impair the use of any public Rights-of-Way or any other authorized facilities therein, including without limitation, streets, sidewalks, sanitary sewers, storm drains, water mains, gas mains, poles, overhead or underground wires or conduits without the prior written approval of the Cityand of any other owner(s) of the affected property. 11.4Licensee may not impede, obstruct or otherwise interfere with the installation, existence and operation of any other facility in the public Rights-of-Way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical infrastructure, cable television and telecommunication wires, public safety and Citynetworks, and other telecommunications, utility, or municipal property unless the owner(s) of the affected property expressly authorize Licensee’s actions in writingor Licensee can show City that such facilities have been abandoned. 11.5If the Cityrequires Licensee to adapt or conform its Network Facilities, or in any way or manner to alter, relocate or change its property to enable any other corporation or person, except the City, to use, or to use with greater convenience, any Right-of-Way, Licensee shall not be required to make any such changes until such other corporation or person shall have undertaken, 14 with solvent bond, to reimburse Licensee for any loss and expense which will be caused by, or arise out of such removal, change, adaptation, alteration, conformance or relocation of Licensee’s Facilities; provided, however, that the Cityshall never be liable for such reimbursement. 11.6Upon request, the Licensee will remove or raise or lower its Network Facilities to permit the moving of houses or other bulky structures. The reasonable and necessary expense of such temporary rearrangements shall be paid by the party or parties requesting them and the Licensee may require payment in advance. The Licensee shall be given not less than forty-eight(48) hours advance notice to arrange for such temporary rearrangements. ARTICLE 12 SUPERVISION BY CITYOFLOCATION OF POLES AND CONDUITS 12.1 In the event Licensee finds it necessary to install poles on Public Rights-of-Way in order to complete its DAS Network, such poles shall be of sound material and reasonably straight, and shall be set so that they will not interfere with the flow of water in any gutter or drain, and so that they will not unduly interfere with ordinary travel on the streets or sidewalks. The Cityshall have the option, but not the obligation, to exercise any and all lawful, reasonable and proper control related to the location and route of all poles, stubs, guys, anchors, conduits, fiber and cables placed and constructed by the Licensee in the installation, construction and maintenance of its DAS Network in the City. ARTICLE 13 CONSTRUCTION AND RESTORATION STANDARDS 13.1 Prior to the performance of the initial construction and installation of the DASor small cell Network, Licensee shall submit engineering plans to the Director for review and approval. The construction, installation, maintenance, repair and removal of Network Facilities shall be accomplished without cost or expense to the Cityand shall be in accordance with theCity's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, as amended, and shall be accomplished in such manner as not to endanger persons or property or unreasonably obstruct access to, travel upon or other use of the specified public Rights-of-Way. 13.2 Prior to beginning any excavation or boring project on Public Rights-of-Way, Licensee shall comply with the provisions of the Texas One Call utility locator service at least forty-eight (48)hours in advance. Licensee has the responsibility to protect and support the various utility facilities of other providers during construction. 13.3 Licensee shall, at its own cost, after the installation, removal or relocation of its Network Facilities, repair and return the public Right-of-Way and any nearby or adjacent private property, if any, in which the Network Facilities are or have been located to a safe and satisfactory condition in accordance with the City's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, as amended. 15 13.4 If Licensee installs an Underground Project, Licensee shall maintain membership, for the life of the Network Facilities, in the Texas One Call utility locator service for subsurface installations. Licensee shall field mark, at its sole expense, the locations of its underground Network Facilities in accordance with the recommendation of the Texas One Call utility locator service and the requirements of all applicable laws. 13.5 ExteNetshall be responsible for any damage to Citystreets, existing utilities, curbs and sidewalks due to its installation, maintenance, repair or removal of its Network Facilities in the Public Right-of-Way, and shall repair, replace and restore in kind any such damage at its sole cost and expense in accordance with all applicable Cityrequirements. 13.6 The Cityshall have the authority at any time to order and require Licensee to remove and abate any Network Facilities that are in violation of the UniversityPark Code. In case Licensee, after receipt of written notice and a reasonable opportunity to cure, fails or refuses to comply, the Cityshall have the authority to remove the same at the expense of Licensee, all without compensation or liability for damages to Licensee. ARTICLE 14 AS-BUILT MAPS AND RECORDS 14.1 ExteNetshall maintain accurate maps and other appropriate records of its Network Facilities as they are actually constructed in the Rights-of-Way, including, for Underground Project, including the use of Auto CAD/GIS digital format. ExteNet will provide the maps to the City upon completion of construction. ARTICLE 15 REMOVAL AND RELOCATION OF NETWORK FACILITIES 15.1 If ExteNetdesires to remove or relocate its Network Facilities in the Rights-of-Way, it shall give the Citynot less than ten (10) business days prior written notice of its intent to do so. Before proceeding with removal or relocation work, ExteNetshall obtain such additional permits as may be required by the Cityand conform with all requirements of this License Agreement and the City's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual. 15.2 Licensee shall remove or relocate, without cost or expense to the City, the Network Facilities it installs under this License Agreement if and when made necessary by (i) the construction, repair, relocation, or maintenance of a public improvement project in, on, under or about the Public Rights-of-Wayor public utility easement; (ii) to protect or preserve the public health or safety; or (iii) where the Cityaffords Licensee a technically and financially reasonable alternative location for installation of Licensee’s Network Facilities. The Citywill notify Licensee as soon as reasonably possible after the requirement to remove or relocate Network Facilities becomes known, and will to the extent reasonably possible assist Licensee in finding substitute Rights-of-Way. Said removal or relocation shall be completed within ninety (90) days following written notification orsuch shorter period as the Citymay reasonably direct in the case 16 of an emergency. If Licensee fails to remove or relocate its Network Facilities within such period, the Citymay cause the same to be done at the sole expense of licensee, and without liability to the City. The Citywill to the extent reasonably possible cooperate with Licensee to relocate its Network Facilities at minimal disruption to its services. Nothing in this section shall be construed as preventing the Licensee from recovering the cost of removal or relocation from a Third Party that makes the request for removal or relocation of utilities. ARTICLE 16 INDEMNIFICATION 16.1 ExteNetshall exercise due care to avoid any action that may cause damage to property of theCityor property of any other person or entity whose facilities occupy, abut or adjoin the Public Rights-of-Way. 16.2 LICENSEE HEREBY COVENANTS, REPRESENTS AND WARRANTS TO RELEASE THE CITY, AND THE CITY’S ELECTED OFFICIALS, THE RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AND REPRESENTATIVES OF THE CITY AND ITS/THEIR SUCCESSORS, IN BOTH THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, AND THE AFFLIATES OF AND PERSONS AND ENTITIES RELATED TO ALL OF THE FOREGOING, INDIVIDUALLY AND COLLECTIVELY, (HEREINAFTER COLLECTIVELY REFERRED TO AS “CITY-RELATED PARTIES”) FROM, AND SHALL INDEMNIFY, DEFEND AND HOLD THE CITY RELATED PARTIES HARMLESS AGAINST ALL ALLEGATIONS, CLAIMS (INCLUDING WITHOUT LIMITATION CLAIMS OF PERSONAL INJURY, ENVIRONMENTAL INJURY, BODILY INJURY, SICKNESS, DISEASE, DEATH, PROPERTY DAMAGE, CONSEQUENTIAL DAMAGES, DESTRUCTION, OR OTHER IMPAIRMENT), DEMANDS, LEGAL ACTIONS, EQUITABLE ACTIONS, COSTS (INCLUDING ALL COURT COSTS, REASONABLE ATTORNEYS’ FEES, EXPERTS’ FEES OR OTHER COSTS INCURRED IN CONNECTION WITH INVESTIGATING, PREPARING, PROSECUTING OR SETTLING ANY LEGAL OR ALTERNATIVE DISPUTE RESOLUTION ACTION OR PROCEEDING), EXPENSES, LIABILITIES, ASSESSMENTS, TAXES, COSTS, FEES, LIENS, PENALTIES, FINES, LOSSES, DAMAGES, JUDGMENTS, OR PENALTIES OF WHATEVER NATURE OR DESCRIPTION, WHETHER KNOWN OR UNKNOWN (COLLECTIVELY “LIABILITIES”) INCURRED BY ANY CITY-RELATED PARTY, WHICH LIABILITIES, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, AROSE FROM OR MAY IN THE FUTURE ARISE FROM, OR ARE ALLEGED TO HAVE ARISENFROM, ANY OF THE FOLLOWING: 17 (i) LICENSEE’S EXERCISE OF ITS RIGHTS UNDER THE LICENSE; (ii) LICENSEE'S ACTIVITIES UNDER THE LICENSE, INCLUDING ANY DELIBERATE, INTENTIONAL, RECKLESS AND/OR NEGLIGENT ACT(S) OR OMISSION(S) OR WILLFUL MISCONDUCT OF LICENSEE, ANY AGENT, OFFICER, DIRECTOR, REPRESENTATIVE, EMPLOYEE, CONSULTANT OR SUBCONTRACTOR OF LICENSEE, AND THEIR RESPECTIVE OFFICERS, AGENTS EMPLOYEES, DIRECTORS AND REPRESENTATIVES WHILE IN THE EXERCISE OF THE RIGHTS OR PERFORMANCE OF THE DUTIES UNDER THE LICENSE; (iii) LICENSEE’S USE OF THE RIGHTS-OF-WAY OR THE RIGHTS GRANTED TO LICENSEE WITH RESPECT TO THE RIGHTS-OF- WAY; (iv) LICENSEE’S USE OF THE CITY’S FIBER OPTICSYSTEM; (v)LICENSEE’S OPERATIONS ON ANY LAND OR IN ANY STRUCTURE OWNED BY THE CITY; (vi) THE INSTALLATION, USE OR PRESENCE OF LICENSEE’S EQUIPMENT ON ANY LAND OR IN ANY STRUCTURE OWNED BY THE CITY; OR (vii) ANY CLAIM MADE OR LOSS INCURRED BY LICENSEE’S CUSTOMERS WHICH ARISES FROM, OR IS ALLEGED TO HAVE ARISEN FROM, ANY INTERRUPTION OR QUALITY OF THE SERVICES DELIVERED BY LICENSEE BY MEANS OF THE FIBER OPTIC, DAS OR SMALL CELL SYSTEM OR ANY OTHER SYSTEM FOR WHICH THE LICENSEE IS USING THE RIGHT-OF- WAY. FOR PURPOSES OF THIS INDEMNITY AND RELEASE, THE TERM “ARISE FROM” MEANS OCCURS IN CONNECTION WITH OR AS A RESULT OF OR IS CAUSED BY. 18 THE INDEMNITIES AND RELEASE IN THIS SECTION WILL APPLY EVEN IF THE DAMAGE OR LOSS IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR STRICT LIABILITY OF A CITY-RELATED PARTY. THIS SECTION 16.2 SURVIVES THE TERMINATION OF THIS LICENSE. 16.3 LICENSEE SHALL BE LIABLE TO THE CITY FOR DAMAGES SUSTAINED BY THE CITY AND RESULTING FROM THE ACTS AND OMISSIONS OF ANY CONTRACTOR, SUBCONTRACTOR, OR ANY PARTY INVOLVED DIRECTLY OR INDIRECTLY IN THE CONSTRUCTION AND INSTALLATION OF LICENSEE’S DAS NETWORK AND UNDER LICENSEE’S DIRECT CONTROL. ANY ACT OR OMISSION OF SUCH PARTY SHALL BE CONSIDERED AN ACT OR OMISSION OF THE LICENSEE. THIS SECTION 16.3 SURVIVES THE TERMINATION OF THIS LICENSE. 16.4Promptly upon learning of any claim for which it seeks indemnification under this License Agreement, Licensor shall give written notice to ExteNetof the claim. ExteNet, as the indemnifying Party, shall bear the cost of and shall have the right to controlthe defense, the right to select counsel of its own choice, and the right to settle the claim. Licensor shall cooperate and assist ExteNetin investigating and defending against the claim. If ExteNetdoes not provide the indemnity and defense, or if ExteNetdoes not make diligent effort to settle the claim or provide for a defense, Licensor may assume control of the matter with counsel of its own choosing and either make a reasonable settlement of the claim or undertake a defense, all at Licensee’s sole cost and expense. 16.5Neither party will be liable to the other for any special, consequential or other indirect damages arising under this License Agreement. ARTICLE17 INSURANCE 17.1 Not later than the Effective Date of this License Agreement, and at all times thereafter when Licensee is occupying or using the Licensed Areas in any way, Licensee shall obtain and cause to be in full force and effect the following insurance: a. Commercial General Liability Insurance. This insurance, to be on the comprehensive form, shall protect the Licensee against any and all claims arising from injuries to members of 19 the public or damage to property or others arising out of any act or omission of the Licensee, its agents, employees, or subcontractors, in connection with the Licensee’s work in and about the Licensed Areas in connection with this License Agreement. In addition, this general liability insurance policy shall specifically insure the contractual liability of the Licensee assumed under the provisions for indemnifying the City. More particularly, Licensee shall provide Commercial General Liability Insurance as follows: Bodily Injury/Property Damage: $1,000,000.00 per occurrence $1,000,000.00 aggregate To include: Premises/Operations Products/Completed Operations Independent Contractors Contractual Liability Personal & Advertising Injury Broad Form Property Damage Coverage must be written on an occurrence form. The General Aggregate shall apply on a per project basis. b. Business Automobile Liability Insurance. This insurance, to be on the comprehensive form, shall protect the Licensee against any and all claims or injuries to members of the public and damage to property of others arising from the use of automobiles and trucks in connection with the Licensee’s work in and about the Licensed Areas, and shall cover operation on or off the site of such work of all motor vehicles licensed for highway use, whether they are owned, non- owned, or hired by the Licensee. The policy shall include an "all states" endorsement. Liability limits for automobile liability insurance coverage shall be: Minimum Combined Bodily Injury and Property Damage Limit: $1,000,000 per occurrence; or Minimum Bodily Injury Limit: $500,000.00 per person, Minimum Property Damage: $500,000.00 per occurrence; and Uninsured Motorist: Statutory Limits. c. Workers’ Compensation and Employer's Liability Insurance. This insurance shall protect the Licensee against any and all claims brought under the Workers’ Compensation law for the State of Texas. It shall also protect the Licensee against claims for injury to, disease or death of workmen engaged in work in and about the Licensed Areas under this License Agreement which, for any reason, may not fall within the provisions of the Workmen's Compensation Act. Liability limits for this insurance shall be: Coverage A Statutory Coverage Coverage B Employer’s Liability with minimum limits for bodily injury: (a) by accident $1,000,000.00 each accident (b) by disease, $1,000,000 per employee with a per policy aggregate of $1,000,000.00. d. Umbrella or Excess Liability Insurance. The Licensee shall effect and maintain an umbrella liability policy as follows: $5,000,000.00 combined single limit per occurrence $5,000,000.00 aggregate. 17.2 Licensee shall, at its own expense, procure and pay for and maintain throughout the period of this License Agreement the insurance coverage described herein-above written by companies 20 approved by the State of Texas and acceptable to the Cityof UniversityPark including by way of example and not limitation, commercial general liability, automobile liability, umbrella or excess liability and workers' compensation in forms and amounts satisfactory to Citywithin ten (10) days after execution of this License Agreement. The Cityreserves the right to review the insurance requirements and to reasonably adjust insurance and limits when the Citydetermines that changes in statutory law, court decisions, or the claims history of the industry or the Licensee require adjustment of the coverage. 17.3 All policies except workers’ compensation must name the Cityand its officers, employees, board members, and elected representatives as additional insured’s. A waiver of subrogation in favor of the Cityand its officials, employees, and officers shall be contained in the Workers’ Compensation insurance policy. Licensee shall cause coverage for additional insured’s to be incorporated into each insurance policy by endorsement with respect to claims arising out of Licensee’s operations, activities and obligations under this License Agreement. 17.4 All policies shall require that the insurer will provide Licensor with at least thirty (30) days prior notice of any cancellation or non-renewal. 17.5 Licensee will provide Licensor with proof of required insurance. Such proof must be legally binding andmust evidence that the policy described by the certificate is in full force and effect and that the policy satisfies each requirement of this License Agreement applicable to the policy. For purposes of this section, insurance requirements may be metthrough self-insurance, provided; however, that any self-insurance meets all the requirements for the insurancecoverage as required herein. However, for the Cityto accept self-insurance,the Licensee must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the City, based on financial information requested by and furnished by the City. 17.6 Licensee shall immediately advise the CityAttorney’s Office of actual or potential litigation that may develop and affect an existing carrier's obligation to defend and indemnify. 17.7 This Article creates no right of recovery of an insurer against the City. The required insurance policies shall protect the Licensee and the City. The insurance shall be primary coverage for losses covered by the policies. ARTICLE 18 PERFORMANCE BOND 18.1 Licensee shall obtain and maintain at its sole cost a corporate surety bond securing performance of its obligations and guaranteeing faithful adherence to the requirements of the License Agreementfor the protection of the City. The surety bond must be: a. in an amount not less than One hundred Thousand Dollars ($100,000.00); b. issued by a surety company licensed to do business in the State of Texas and reasonably acceptable to the City; and 21 c. reasonably acceptable to the CityAttorney. 18.2 The Licensee shall obtain this bond no later than the thirtieth (30th) day after the effective date of this License Agreement and prior to construction or installation of any Network Facilities in the Rights-of-Way. 18.3 The rights reserved to the Cityunder the bond are in addition to all other rights. No action, proceeding or exercise of a right regarding the bond shall affect the City’s rights to demand full and faithful performance under this License Agreement or limit the Licensee’s liability for damages. ARTICLE 19 TREE TRIMMING 19.1 The right, license, privilege and permission is hereby granted to the Licensee, its contractors and agents, to trim trees upon and overhanging the streets, avenues, highways, alleys, sidewalks and public places of the Cityso as to prevent the branches of such trees from coming in contact with the aerial wires, fiber or cables of the Licensee, and when so directed by the City, said trimming shall be done under the supervision and direction of the Cityor of any Cityofficial to whom said duties have been or may be delegated. ARTICLE 20 EMERGENCY NOTIFICATION TO EXTENET 20.1 The ExteNetCall Center shall be available to Citystaff 24 hours-per-day, 7 days-per-week, regarding problems or complaints resulting from the Network Facilities. TheDirector may contact Licensee by telephone at a number which shall be provided by Licensee in conjunction with all permit applications. ARTICLE 21 NOTICES 21.1 All notices permitted or required hereunder shall be in writing and shall be transmitted via certified United States mail, return receipt requested, or by private delivery service and shall be addressed as follows or to such different addresses as the Parties may from time to time designate by giving written notice to the other party of such change: If to the City, to: Copy to: Cityof UniversityPark Attn: CityManager 4300 MacArthur Avenue, Suite 160 University Park, TX 75209 Telephone 214-559-9444 22 If to ExteNet, to Copy to: ExteNet Systems, Inc.ExteNet Systems, Inc. Attn: CFO Attn: General Counsel 3030 WarrenvilleRoad, Suite 340 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 Lisle, Illinois 60532 Telephone: 630-505-3800 Telephone: 630-505-3800 Notices shall be deemed effective upon receipt. ARTICLE 22 ASSIGNMENT 22.1 The rights granted by this License Agreement inure to the benefit of Licensee and shall not be assigned, transferred, sold or disposed of, in whole or in part, by voluntary sale, merger, consolidation or otherwise by force or involuntary sale, withoutthe expressed prior written consent of the City, which consent shall not be unreasonable withheld, delayed or conditioned. 22.2 Notwithstanding the provisions of Section 16.1, a transfer of this License Agreement may occur without Cityapproval in the following circumstance: (i) an assignment or transfer to entities that control, are controlled by, or are under common control with Licensee, or (ii) the acquisition of all or substantially all of Licensee’s assets in the UniversityPark market by reason of a merger, acquisition or other business reorganization. In order to effect an assignment of this License Agreement as listed in (i) and (ii) above without Cityapproval, the Licensee must provide the CityManagera Notice of Assumption at least thirty (30) days prior to the assignment which contractually binds the purchasing or acquiring party to meet all the obligations of this License Agreement. 22.3 Licensor acknowledges that Licensee’s business plan includes leasing the capacity of its Network Facilities to Third Parties, often by long-term conveyances that extend for the entire useful life of the Network Facilities. Such long-term leases are agreed to be within the scope of Licensee’s intended use and shall not be deemed assignmentsrequiring Licensor’s consent, provided that Licensee has delegated none of its obligations under this License Agreement to the lessee of the Network Facilities, and Licensor may continue to look solely to Licensee for performance hereunder. 22.4 Licensee may also assign this License Agreement, without Licensor's consent and without prior notice to Licensor, to an institutional mortgagee or lender providing financing to Licensee with respect to Licensee's DAS Network or Network Facilities in the event such institutional mortgagee or lender exercises its foreclosure right against Licensee and operates the DAS Network or Network Facilities; provided such institutional mortgagee or lender is capable of assuming all of the obligations of the Licensee under this License Agreement and further provided that any assignment will not be effective against Licensor unless and until written notice of such assignment and exercise of rights is provided to Licensor. 23 ARTICLE 23 FUTURE CONTINGENCY 23.1 Notwithstanding anything contained in this License Agreement to the contrary, in the event that this License Agreement, in whole or in part, is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, unlawful, or otherwise inapplicable, the Licensee and the Cityshall meet and negotiate an amended License Agreement that is in compliance with the authority’s decision or enactment and, unless explicitly prohibited, the amended License Agreement shall provide the Citywith a level of compensation comparable to that set forth in this License Agreement. ARTICLE 24 MISCELLANEOUS 24.1 Choice of Laws. This License Agreement shall be construed and enforced in accordance with the laws of the State of Texas without regard to the conflict of law provisions thereof. Exclusive venue shall be had in Dallas County, Texas. 24.2 Entire Agreement. This License Agreement, together with its attached exhibits, contains the entire understanding between the Parties with respect to the subject matter hereof. There are no representations, agreements or understanding (whether oral or written) between or among the Parties relating to the subject matter of this License Agreement which are not fully expressed herein. This License Agreement can be amended, supplemented, modified or changed only by a written document executed by both Parties. 24.3 Reservation of Rights by Parties. Except as specifically set forth herein to the contrary, the Cityand ExteNeteach reserve all rights under applicable state and federal law. 24.4 Authority. The signer of this License Agreement for the Licensee and the Cityhereby represents and warrants that he or she has full authority to execute this License Agreement on behalf of the Licensee or the Cityrespectively. 24.5 Waiver. None of the material provisions of this License Agreement may be waived or modified except expressly in writing signed by the Licensee and City, as authorized by City Council. Failure of either party to require the performance of any term in this License Agreement or the waiver by either party of any breach thereof shall not prevent subsequent enforcement of this term and shall not be deemed a waiver of any subsequent breach. 24.6 Severability. If any clause or provision of the License Agreement is illegal, invalid, or unenforceable under present or future laws effective during the term of this License Agreement, then and in that event it is the intention of the parties hereto that the remainder of this License Agreement shall not be affected thereby, and it is also the intention of the parties that in lieu of each clause or provision of this License Agreement that is illegal, invalid, or unenforceable, there be added as part of this License Agreement a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable. 24 24.7 Captions. The captions contained in this License Agreement are for convenience of reference only and in no way limit or enlarge the terms and conditions of this License Agreement. 24.8 Third Party Beneficiaries. No person or entity shall be a third party beneficiary to this License Agreement or shall have any right or cause of action hereunder. 24.9 No Partnership. This License Agreement and the transactions and performances contemplated hereby shall not create any manner of partnership, joint venture or similar relationship between the Parties. 24.10 Attorneys’ Fees. If any action, suit or proceeding is brought by either Party hereunder to enforce this License Agreement or for failure to observe any of the covenants of this License Agreement or to vindicate or exercise any rights or remedies hereunder, the prevailing Party in such proceeding shall be entitled to recover from the other Party reasonable attorneys’ fees and other reasonable litigation costs (as determined by the court). 24.11 This Agreement shall be effective 30 days after passage. IN WITNESS WHEREOF the Parties have caused this License Agreement to be executed by their duly authorized representatives. CITYOF UNIVERSITYPARK ExteNet By:____________________ By:____________________ Name:Name: __________________ Title: Mayor Title: President and CEO Date: _____________, 2014 Date: _____________, 2014 25 Exhibit “A” Diagram of Facilities Allowed Under this Agreement and Map showing Location Where Facilities Are Allowed in City Right-of-Way 26 Exhibit “B” Fiber Indefeasible Right of Use Agreement 27 Exhibit “C” Form of statement to be submitted with monthly fee 28 CERTIFIED PAYMENT FORM Please find attached the followingsupporting documentation for each category: Gross Revenue Collected by ExteNet Systems, Inc._______________ Fee:_______________ Fee is to be five percent (5%) Of Gross Revenuesor a minimum payment of $200.00 per month per facility, whichever is greater. Indicate if fee is based upon percentage or minimum (underline applicable choice). Property Taxes ________________ I, ____________________ (name), in my capacity as ______________________ (title) for ExteNet Systems, Inc., am hereby authorized by ExteNet Systems, Inc. to make this filing on behalf of ExteNet System Inc., and do hereby certify that to the best of my knowledge and belief, the foregoing information is true and correct. ____________________________________________________ Signature Date _____________________________ Printed Name STATE OF _____§ COUNTY OF______§ BEFORE ME, the undersigned on this day personally appeared ____________(Name), ________________ (Title) and attested that she/he is authorized to sign on behalf of ExteNet Systems, Inc., and proved to me through the presentation of a valid Driver’s License to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she/he executed the same for the purposes and consideration therein expressed. M__. _______________furthermore attested that he/she is signing this document in his/her capacity as ______________ for and on behalf of ExteNet Systems, Inc., and that such capacity makes his/her signature valid and binding to ExteNet Systems, Inc. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ______ day of _________________, 20____. ___________________________________ NOTARY OF PUBLIC, State of ________ My Commission Expires:_________ 1 EXHIBIT“B” DARKFIBERINDEFEASIBLERIGHTOFUSEAGREEMENT This Dark Fiber Indefeasible Right of Use Agreement ("Agreement") is entered into this ___ day of ___________, 2014 by and between ExteNet Systems, Inc. ("Grantor"), and the City of University Park, Texas (“City"). Grantor and City are sometimes referred to herein individually as a “Party” or collectively as the “Parties.” Background WHEREAS, this Agreement is made in light of the following premises and circumstances, all of which are a part of this Agreement: A.Grantor, a Delaware corporation will be the owner of certain fiber optic cables comprising a component of a fiber network that Grantor plans to install in, over and/or under the public rights of way (“ROW”) within the geographic boundaries of City for the provision of providing telecommunications service (the “Network”); B.City is a political subdivision of the State of Texas with jurisdiction over the ROW for certain purposes; C.The planned route of such fiber optic cable is depicted on the Fiber Route Map attached hereto as Exhibit 1; D.City is entitled to manage the public rights-of-way and to require fair and reasonable compensation based on principles of cost recovery as a condition to allowing Grantor access to the ROW; E.Grantor and City desire to enter into an agreement to govern the terms and conditions under which Grantor will reserve four Dark Fiber strand in Grantor’s fiber optic cable for the exclusive use of City in connection with implementation of the Network installation in the ROW. Agreement Terms and Conditions NOW THEREFORE, in consideration of the promises and mutual covenants contained herein and in the ROW Agreement, the Grantor and City hereby agree as follows: 1. Definitions For the purpose of this Agreement, the following terms when used herein shall have the following meanings: (i) “Access Point” means a Manhole, Vault, Handhole, Junction Box or Pedestal through which the University Park Cable may be accessed for the purposes of splicing fibers to 2 interconnect to other networks or facilities. (ii) “Authorized Contractors” means third party contractors (whether independent or affiliated with Grantor) that have been approved and authorized by Grantor to utilize Access Points and to make splices or perform other work on the University Park Cable as provided for in this Agreement. (iii) “Dark Fiber” means an unlit optical fiber strand in a Fiber Segment that is separate from and has not yet been connected to any of the equipment, electronics, lasers or additional Fiber Segments necessary to transmit optical signals via the fiber strand or to corresponding fiber strands in other adjacent Fiber Segments. (iv) “University Park Cable” means the several Fiber Segments, whether aerial or undergrounded, comprising the optical fiber components of the Network as deployed and depicted in the Fiber Route Map. (v) “Fiber Route Map” means the map of the composite routes of the various Fiber Segments comprising the fiber cabling to be installed as part of the Network, as depicted on the map attached as Exhibit 1as the same may be modified during or after construction of the Network. Exhibit 1shall be replaced with the “As-Built” Fiber Route Map following completion of the Network and thereafter shall be updated from time to time as necessary to reflect modifications to the Fiber Segments or additional Fiber Segments comprising the University Park Cable made in accordance with the provisions of this Agreement. (vi) “Fiber Segment” means a continuous run of multi-strand fiber optic cable covering a portion of the fiber cable route shown on the Fiber Route Map. (vii) “Handhole” means a buried box, with a lid that is even with the surface of the ground, used to store, terminate, splice or transfer fiber optic cable. (viii) “Junction Box” means a box where fiber optic cable splices and connections are made and accessed. (ix) “Licensed Fiber” means the four individual strand of Dark Fiber within each Fiber Segment of the University Park Cable, as the same may be modified in accordance with this Agreement that shall be reserved and/or designated for exclusive use by City in accordance with and subject to the terms of this Agreement. For avoidance of doubt, additional Fiber Segments that are connected to the Network following its initial construction and deployment in accordance with the Fiber Route Map set forth in Exhibit 1on the effective date of this Agreement shall be deemed a part of the University Park Cable and shall be subject to the foregoing obligations on the part of Grantor to reserve and/or designate four strand of Dark Fiber for exclusive use by City only if and to the extent that such Fiber Segments and any associated Equipment are located within the geographic boundaries of City and are made subject to the ROW Agreement on terms and conditions no less favorable to Grantor than those that are then in effect with respect to 3 the Network as initially constructed and deployed. (x) “Manhole” means a subsurface enclosure which qualified personnel may enter and use for the purpose of installing, operating and maintaining facilities. (xi) “Pedestal” means an above ground structure used to store, terminate, splice or transfer fiber optic cable. (xii) “ROW Agreement” meansthat certain License Agreement between the parties executed on _____________. (xiii) “Vault” means an underground structure used to store, terminate, splice or transfer fiber optic cable. 2. License 2.1 License Grant Subject to the terms, conditions and limitations set forth herein, Grantor hereby grants to City a license and right for the exclusive use of the Licensed Fiber for the transmission of optical signals generated by optical or other equipment owned or employed by City. The duration of the foregoing license shall continue in perpetuity so long as the University Park Cable installation remains in place. However, nothing herein shall obligate Grantor to continue to maintain and operate any Fiber Segment comprising a part of the University Park Cable or to maintain any attachment rights related thereto during any periods after Grantor and its successors in interest permanently cease to use such Fiber Segment (other than the Licensed Fiber) for the provision of services to their customers. For avoidance of doubt, Grantor or its successors in interest shall give City prior written notice and a reasonable opportunity to assume responsibility for maintaining and operating each Fiber Segment containing Licensed Fiber before removing such Fiber Segment in connection with the expiration or termination of the ROW Agreement or ceasing to use such Fiber Segment for the provision of services. Except where Grantor is otherwise legally obligated to remove a Fiber Segment ina shorter period of time, such prior notice shall be given at least ninety (90) days in advance of such removal. 2.2 Scope of Grant (i) Grantor shall provide City with access to the Licensed Fiber. To the extent that Grantor has authority to use and authorize third party use of Access Points, it will grant permission to Authorized Contractors to use such Access Points for splicing the Licensed Fiber for the purpose of interconnection to other compatible equipment or facilities as directed by City and at City’s sole cost. Grantor shall have no obligation whatsoever to install any additional fiber optic cable or to allocate any additional strands of the University Park Cable to meet the needs of City. 4 (ii) City shall undertake to obtain and provideall approvals, authorizations, coordination and supervision that is necessary in connection with its use of the Licensed Fiber. Without limiting the foregoing, City shall have the sole responsibility for performing all activities and paying all costs necessary to make the Licensed Fiber operational, including but not limited to: (i) splicing the Licensed Fiber to achieve interconnection between or within the applicable Fiber Segments and between the Licensed Fiber and fiber optic cable belonging to others, and (ii) providing, attaching and interconnecting equipment, electronics and lasers as required to transmit or receive optical signals via the Licensed Fiber. City shall further have the sole responsibility for paying all costs and for constructing or otherwise providing facilities needed to connect the Licensed Fiber to any other network or facilities via appropriate Access Points, and for performing all necessary fiber splices for interconnection of the Licensed Fiber to other network facilities. Except as otherwise approved by Grantor (such approval not to be unreasonably withheld) all such splices and other uses of Access Points shall be carried out only by Authorized Contractors and, to the extent practicable, only during regularly scheduled maintenance windows or at other times that are reasonably convenient for Grantor. (iii) Grantor and City agree and acknowledge that City’s use and operation of the Licensed Fiber does not and will not create or convey to City any ownership or property rights ofany nature in the Licensed Fiber or any portion of the University Park Cable or of any Access Points or of the Network. City may not encumber, offer as collateral, or allow any third party claims of any type on or against the Licensed Fiber. (iv) In the event that City or any agency thereof fails or refuses to give any approval or issue any permit that is purportedly required for the construction and installation of the Network or otherwise takes action to prevent or prohibit construction or implementation of the Network substantially as proposed by Grantor in the materials it has heretofore submitted to the City of University Park, then the license and right with respect to the Licensed Fiber as provided in this Agreement shall, without any action on the part of Grantor other than the giving of written notice thereof, be entirely null and void and of no further force or effect. 2.3 Designation of Licensed Fiber Strand (i) At any time following completion of the Network construction andinstallation, City may notify Grantor of its desire to access the Licensed Fiber reserved for its use by Grantor. Such notice shall be written and shall be provided no fewer than sixty (60) days prior to the date on which City desires to access the Licensed Fiber for purposes of interconnection. City’s notice shall identify all of the following: (1) the specific portions of the Licensed Fiber route (i.e., the Fiber Segments) in which City intends to light and use Licensed Fiber, (2)the Access Points City desires to use (if any) to access and splice the Licensed Fiber, (3)all personnel or contractors that City proposes to use to perform any work activity involving the Licensed Fiber, including but not limited to construction and installation of fiber drops or laterals for interconnection of the Licensed Fiber to ancillary Access Points or to lasers, electronics or other equipment, facilities or networks for purposes of lighting and using the Licensed Fiber, and (4) City’s plans for 5 interconnecting with and using the Licensed Fiber, including relevant technical and functional network specifications and design criteria for City’s systems that may facilitate consultation and cooperation of City and Grantor in the interest of efficient and effective implementation of City’s plans in accordance herewith. (ii) Within ten (10) days following receipt of such initial notice, Grantor shall provide City with a color-coded diagram designating the specific optical fiber strands within the designated Fiber Segments that have been designated as the Licensed Fiber for all purposes hereunder. (iii) Grantor shall have the right to determine in advance whether City’s personnel and/or proposed contractors are qualified to perform such work activities and may disapprove any proposed personnel or contractor in its sole reasonable discretion. Grantor shall identify the reasons for such disapproval in writing and City may propose alternate personnel or contractors. (iv) City is solely responsible for obtaining all public, private or government approvals, authorizations, permits, certifications, easements, rights of way and attachment rights beyond those required for installation and maintenance of the University Park Cable, if any, that are necessary in order for City to light and transmit or receive signals using the Licensed Fiber, and shall provide documentary evidence thereof as and when reasonably requested by Grantor. (v) At City’s request or in the event that Grantor refuses to approve City’s selected contractor as an Authorized Contractor, Grantor will either propose or exert commercially reasonable efforts to cause one of its Authorized Contractors to propose to perform the work necessary for City’s proposed interconnection of equipment and other network facilities with the Licensed Fiber on a time and materials basis at then prevailing commercially reasonable rates for work of substantially similar complexity and difficulty in the relevant market. 2.4 Limitations and Requirements for Use of Licensed Fiber Strand (i) Grantor and City agree and acknowledge that City may use the Licensed Fiber in the University Park Cable for any lawful purpose for which the fiber strand is technically suited, provided that City shall use the Licensed Fiber solely for public purposes, shall not use it for the provision of any commercial telecommunications services in competition with the business of Grantor or for the benefit of any competitor of Grantor, and shall not permit any third party to use or operate the Licensed Fiber except at the direction of City in furtherance of public purposes. (ii) If Grantor determines for any reason that it is necessary to relocate, modify, underground or otherwise alter (“Relocation or Modification”) all or any portion of the University Park Cable, including the Licensed Fiber (whether such Licensed Fiber is then lit and/or in use by City), Grantor shall provide City written notification prior to making the proposed relocation, modification or alteration. Such notice shall be given at least 6 sixty (60) days in advance except in circumstances in which Grantor is legallyobligated to take action more promptly and the prior notification requirement of this section shall not apply to emergency situations, in which case Grantor will give notice as quickly as is reasonably practicable. City shall have no responsibility for costs and expenses relating to any such Relocation or Modification of the University Park Cable. But if and to the extent that such Relocation or Modification is required by reason of events or circumstances beyond Grantor’s reasonable control, Cityshall have sole responsibility for costs and expenses relating to any necessary rearrangement, relocation, modification or alteration of any of City’s fiber drops or laterals or other equipment, electronics or lasers installed to light the Licensed Fiber, or other facilities City has interconnected to the Licensed Fiber (“City Facilities Relocation or Modification”) that may result therefrom. However, if and to the extent that such Relocation or Modification is made at Grantor’s discretion or for Grantor’ benefit, Grantor shall bear the reasonable cost of the City Facilities Relocation or Modification resulting therefrom. (iii) Any equipment, electronics, lasers, or interconnecting fiber or other network facilities provided by City shall be installed and maintained in accordance with the requirements and specifications of the then current editions of the National Electrical Code (NEC), and the National Electrical Safety Code (NESC), each of which are incorporated by reference in this Agreement. Further, City and its consultants and contractors shall at all times comply with the applicable rules and regulations of the Occupational Safety and Health Act of 1970 (OSHA), with all applicable state and federal statutes and laws, and with all applicable regulations, rules and orders issued by any state or federal agency having jurisdiction thereof, including without limitation the Federal Communications Commission and the Texas Public Utility Commission. (iv) Grantor reserves the right to make periodic inspections at any time of any part of City’s equipment, electronics, lasers, or facilities (including interconnected fiber or copper cable) utilized by City in conjunction with the Licensed Fiber for purposes of assuring compliance with the terms and conditions hereof and with applicable laws, rules and regulations as reasonably necessary to prevent or detect interference with or damage to the Network or breaches of City’s obligations hereunder. Except in the case of an emergency, Grantor shall give City 48 hours’ notice before carrying out such inspections and City shall be permitted, but not required, to have a representative present for such inspections. Such inspections shall be conducted at Grantor’s expense. City agrees that such periodicinspections by Grantor, or the failure to do so, shall not relieve City of anyresponsibility, obligation or liability whether assumed under this Agreement or otherwiseexisting. 2.5 Fees. Grantor provides the Licensed Fiber to Cityas a form of additional compensation to City pursuant to the ROW License Agreement. 7 3.Maintenance (i) Grantor shall maintain all facilities interconnected with or comprising a part of the University Park Cable that are owned by Grantor, including the Licensed Fiber, provided that Grantor’s obligation to maintain such facilities shall not in any way extend beyond the term of the ROW Agreement and provided further that such obligation shall cease earlier as to any Fiber Segment with respect to which Grantor and its successors in interests either: (1)loses the necessary attachment and access rights to enable such maintenance;or (2)permanently ceases to use such Fiber Segment (other than the Licensed Fiber) for the provision of services to their customers, provided that before removing any suchFiber Segment Grantor gives City prior written notice and an opportunity to assume responsibility for maintaining and operating such Fiber Segment as provided in Section 2.1. (ii) City shall have sole responsibility for maintaining all of its equipment, electronics, lasers, fiber and other facilities interconnected to the Licensed Fiber. City shall maintain its equipment, electronics, lasers and interconnecting fibers and facilities in good repair and in a manner that will not interfere with, or degrade the quality or reach of any signal, transmission or telecommunications carried on the University Park Cable. If City’s equipment or facilities should cause any type of interference with, or degradation of, any signal, transmission or telecommunications on the University Park Cable, City agrees to correct the condition. Grantor shall promptly notify City of any such problem with City’s equipment or facilities. Such correction shall be made within three (3) hours for any problem causing interference or disruption of any signal, transmission or telecommunications on the University Park Cable. Such correction shall be made within six (6) hours for any problem causing a degradation, but not disruption, of any signal, transmission or telecommunications on the University Park Cable. If City fails to take such corrective action, Grantor may in its sole discretion correct said condition. Grantor shall notify City in writing prior to performing such work whenever practicable. When Grantor reasonably believes, however, that such conditions pose an immediate threat to public safety or interfere with the performance of Grantor’s service obligations to its customers, or pose an immediate threat to the physical integrity of the University Park Cable or other facilities, Grantor may perform such work and/or take such action, including temporary disconnection of City’s equipment and facilities from the University Park Cable, that itreasonably deems necessary without first giving written notice to City. Cityshall be responsible for paying Grantor for all reasonable costs incurred by Grantor in taking such corrective actionson City’s behalf, except where it is ultimately determined that the problem was not in fact caused by City’s equipment or facilities. In the latter case, Grantor shall bear the cost of any reconnection or restoration of City’s equipment or facilities that is made necessary as a result of Grantor’s mistaken actions. Grantor shall be indemnified by City for such work in accordance with Section 5 below. 4. Liability and Damages (i) Only as arising under this Agreement and not in its capacity as a municipality or otherwise, City, its personnel, agents and contractors shall exercise reasonable caution to 8 avoid damaging the facilities of Grantor and shall make an immediate report to Grantor of the occurrence of any such damage caused by its personnel, agents or contractors. (ii) Grantor shall not be liable to City for any special, indirect, or consequential damages arising from any interruption or degradation of City’s communications carried on Licensed Fiber. 5. Mutual Release Each of Grantor and City hereby agrees to hold harmless the other from and against any third party demand, claim, action, suitor proceeding (“Claim”) and any resulting loss, liability, cost, expense or fine, including court and appeal costs and reasonable attorneys' fees and expenses (“Losses”), that are caused by or arise out of the actual or alleged acts or omissions, whethernegligent or willful, of either Party, its personnel, agents or contractors, in connection with the performance under this Agreement or otherwise in connection with the construction (including any excavation), installation, operation, maintenance or use of the University Park Cable or the Licensed Fiber or any equipment or facilities interconnected or associated therewith. 6. Assignment (i) City may not assign, sub-license, or transfer in any manner, in whole or in part, its rights, duties or obligations under this Agreement, provided that, pursuant to Section 2.4 above, City may authorize the use of the Licensed Fiber by any entity for public purposes. (ii) Neither this Agreement nor any term or provision hereof, nor any inclusion by reference shall be construed as being for the benefit of any person or entity not a signatory hereto. 7. Termination The Parties shall have the right to terminate this Agreement and the license granted herein under the following circumstances: (i)Grantor. Grantor may terminate this Agreement (a) upon thirty (30) working days written notice with an opportunity to cure within ten (10) working days therefrom in the event that City commits a material breach of this Agreement or the ROW Agreement or uses the Licensed Fiber for any unlawful purpose, or (b) immediately upon written notice pursuant to Section 2.2.(iv). (ii)City. Upon sixty (60) calendar days written notice, City may terminate this Agreement, for any reason or for no reason (i.e., for convenience). (iii)In the event of termination in accordance herewith for any reason, City shall 9 remove all equipment, electronics, lasers and fiber or other facilities interconnected to the University Park Cable within sixty (60) days after the effective date of the termination. All costs of any kind arising from removal of City’ equipment, lasers and fiber, or other facilities shall be borne entirely by City. 8. General Provisions 8.1 Notices (i)All notices requiredor permitted to be given to either party by the other party under any provisions of this Agreement shall be in writing. Notice shall be deemed served when deliveredby hand or sent by a nationally recognized overnight courier service to the other party’saddress set forth below during normal business hours. If a Notice is mailed, service is deemed complete upon the earlier of actual delivery or the close of business on the third business day following the date when the Notice is placed in a receptacle regularly maintained by the U.S. Postal Service addressed to the party at the address set forth below with postage pre-paid. (ii)Notices shall be given to the following: If to the City of University Park: City of University Park Attn: City Administrator 4300 MacArthur Avenue, Suite 160 University Park, Texas 75209 With a copy to: ____________________ ____________________ ____________________ If to ExteNet Systems, Inc: ExteNet Systems, Inc. Attn: CFO 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 630-505-3800 With a copy to: 10 ExteNet Systems, Inc. Attn: General Counsel 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 630-505-3800 Or to such other addresses and persons as City or Grantor mayhereafter designate in a notice given in accordance with this Section 8.1. 8.2 Non-Waiver Failure of Grantor to take action to enforce compliance with any of the terms or conditions of this Agreement, or to give notice or declare this Agreement or any authorization granted hereunder terminated, or to exercise any right or privilege hereunder, shall not be construed as a continuing or future waiver of such term, condition, right or privilege, but the same shall be and remain at all times in full force and effect. 8.3 Headings All headings contained in this agreement are for convenience only and are not intended to affect the meaning or interpretation of any part of this Agreement. 8.4 Governing Law and Venue This Agreement and the rights and obligations contained in it shall be construed in accordance with, and governed by, the laws of the State of Texas, without regard to its choice of law provisions. Venue shall be in Dallas County, Texas. 8.5 Counterparts This Agreement may be executed in any number of counterparts, each of which when executed shall be deemed an original, but all of which together shall constitute one and the same instrument. 8.6 Confidentiality The parties acknowledge that Grantor will disclose proprietary and confidential network and business information to City in order to perform this Agreement. City agrees to take all reasonable steps to protect such proprietary and confidential information from public disclosure, and to make available such information internallyonly to City personnel with a need to know or to its legal counsel. City shall not disclose the contents of this Agreement except as required by state law in response to a formal request pursuant to the 11 Texas Public Information Act. City shall notify Grantor within 48 hours of receiving a request under the Texas Public Information Act for information about this Agreement. 8.7. Venue Venue for any complaint, cause, case or action arising from or related to this Agreement shall be in a state or federalcourt of competent jurisdiction sitting in Dallas County, in the State of Texas. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. City of University Park (City) ExteNet (Grantor) By: __________________________________ By: _______________________________ CEO Date: ____________________________Date: ________________________ 12 Exhibit 1 Fiber Route Map dated _______ 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@7C05E509\@BCL@7C05E509.docx 1:31 PM 10/01/14 AGENDA MEMO 8/19/2014Agenda TO:Honorable Mayor and City Council FROM:Gerry Bradley, Directorof Parks SUBJECT:Parks Department’s 2014-15 Capital Improvements Program BACKGROUND: With the recent approval of the 2014-15 CIP budgets, staff plans to review the Parks CIP projects with City Council regarding design, costs and project scheduling. Parks 2014-15 Capital Improvements Program 23900 -Median Upgrades (Turtle Creek Blvd. Owsley Park) $ 60,000 25400 -University Blvd. entrance portal $ 150,000 25800 -Elena’s Children’s Park Improvements $ 40,000 26000 -Park Furniture Replacement $ 50,000 26100 -Goar Park restroom structure $ 75,000 26600 -Preston Road landscape and lighting $ 180,000 26700 -Tennis Court resurfacing program $ 50,000 26900 -Tollway Wall Landscape $ 40,000 27200 -Smith Park playground replacement $ 290,000 RECOMMENDATION: Staff is requesting City Council’s approval in moving forward with the Parks Department’s 2014-15 CIP program. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@78057978\@BCL@78057978.docx 6:39 PM 09/30/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Greg Spradlin, Chief of Police SUBJECT:CONSIDER AND ACT: on an ordinance amending the residential parking district to remove the 3000 block of Fondren and the addition of the north side of the 4300 block of Hyer BACKGROUND: In 2012Southern Methodist University purchased homes on the 3000 block of Fondren Drive for future expansion purposes. In 2013 those homes were demolished, therefore the need for being a part of the residential parking district is unnecessary and the ordinance is being amended to remove this area. Secondly, a petition was signed by 75% of the north sideof the 4300 block of Hyer Street to be included inthe residential parking district near Highland Park High School. The amended ordinance being considered also includes the addition of the north side of the 4300 block of Hyer Street. RECOMMENDATION: Staff recommends approval of this amendment. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@C005084D\@BCL@C005084D.docx 2:47 PM 10/02/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Elizabeth Anderson, Purchasing Manager SUBJECT:Cooperative Purchase of Two Vehicles for Parks Department BACKGROUND: The Parks Department is scheduled to replace a Stump Grinder and a multi-purpose maintenance truckwith new vehicles. The Stump Grinder is available from Vermeer via BuyBoardcontract # 424-13 in the amount of $17,601.82. The truckand accessories for fertilizing and chemical application are available from Professional Turf Products via BuyBoard contract #447-14 in the amount of $52,653.88. The total purchase amount is $70,255.70. Attached is a memo from Jim Gau, Jr., Fleet Manager, a Vehicle Procurement Requisition, and the quotes prepared by Vermeer and Professional Turf Products. RECOMMENDATION: Staff recommends the purchase of the two vehiclesat a total cost of $70,255.70 Purchases made through BuyBoard satisfy all competitive bidding requirements. 9/4/2014 Jim Gau Jr Equipment Services City of University Park Brent Jones Parks Assistant Director Brent, Attached please find the VPR's for the Stump Grinder and Toro Truck and accessories that you have determined as suitable replacements for your department. Equipment Services has no issues with the main mechanical components of the two units that you have specified. If these are what you want to purchase sign the VPR's and forward to Tom Tvardzik at your convenience. Fleet Manager Equipment Services City of University Park, Texas VEHICLE PROCUREMENT REQUISITION (VPR) Date 9 -'-/-I L/ ____;_ _____ _ INSTRUCTIONS: Department manager-complete the header portion of this form and forward the VPR to the Fleet Manager. This document and its attachments serve as the official requisition for a vehicle and ensure that all approvals have been made. Vehicle description: User Department: Account Number: Lf7-9 D-9070 Type of purchase: 1. Planned replacement 2. Early replacement 3. Upgrade 4. Addition 0 0 0 Dept. mgr. signature Dept. head signature Anticipated City Council meeting approval date: ____ _ 1. Initial Request 2. User Department or Fleet Manager submits VPR. User department includes brief written attachment describing need for and intended use of vehicle (not required for planned replacement of like equipment). \\Ciient\P$\Finance\Fieet\Vehicle Procurement Request form.doc 1 3. Assemble prices Purchasing Agent and Fleet Manager assemble quotes, conduct bid process , or collect pricing from cooperative purchasing contracts. Purchasing Agent copies information to user department, who reviews and makes selection by signing below. ~o~ cr-g-;cr 4. Executive approval Fleet Manager forwards VPR and supporting documents to Finance Director and City Manager for approval, who forward VPR to Purchasing Agent. 5. Agenda preparation Purchasing Agent prepares agenda memo regarding compliance with City purchasing policy and State purchasing law and submits to City Secretary alon~ith user department memo and bid tabulation. 6t::L -9-21.:-1'/ Purchasing Agent Date 6. City Council Approval Date 7. Purchase Order execution and order placement Purchasing Agent sets up Purchase Order and places order with vendor. Purchasing Agent sends PO copy to Fleet Manager 8. Vehicle delivery and acceptance Vendor delivers vehicle to Equipment Services Division. Fleet Manager or designee accepts delivery and approves payment of invoice for vehicle . Fleet Manager forwards approval to Accounts Payable Specialist for payment. \\Ciient\P$\Finance\Fieet\Vehicle Procurement Request form.doc 2 July 22, 2014 Brent Johns City of University Park Vermeer Texas-Louisiana, Inc. is pleased to provide the following: Vermeer 1 exas-Lou•s•ana 3025 N. STATE HWY 161 IRVING, TX 75062 Phone(972)255-3500 Quoted by: Jared Davis 214-796-7246 jdavis@vermeertexas.com Make Model Descnpt1on Senal Number Warranty Transaction VERMEER SC292 Code 000016299 Thank you for your interest in Vermeer Equipment -We look forward to earning and keeping your business. SC292 Descri tion TLR30 1993 Tilt bed trailer chain and binder system SC292 26.5 Hp Kohler with EFI 4 wheels with hydraulic steering Yellow Jacket cutter system BuyBoard Contract #424-13 0123 YES SALE-NEW Total machme pnce excludmg any applicable taxes 20.467 23 Less the followmg trade-ms and/or cred1ts· 17,601.82 Thank you for your interest in Vermeer Equipment-We look forward to earning and keeping your business Page 1 of 2 July 22, 2014 Vermeer T exas-Lou1s1ana 3025 N. STATE HWY 161 Brent Johns IRVING, TX 75062 City of University Park Phone(972)255-3500 Quoted by: Jared Davis 214-796-7246 jdavis@vermeertexas.com Vermeer Texas-Louisiana, Inc. is pleased to provide the following: Make Model Descnpt1on Senal Number Warranty Transaction VERMEER SC292 SC292 0123 YES I hereby agree to the conditions of this order, expressed in the foregoing, constituting a purchase order contract. I hereby certify that I am 21 years of age or older and acknowledge receipt of a copy of this order. In order to secure buyer's obligations under this Agreement and any extension, renewal or modification thereof, buyer hereby grants to Dealer a security interest in all of the goods described herein and all accessions and thereto and all O! .r Non-refundable deposits 1 Buyer understands, acknowledges and agrees that if he/she fails to pay seller the remaining balance upon receipt of above goods and/or services any non-refundable deposit shall be forfeited. Buyers signature: Salesman: Accepted by: Date SALE-NEW ------ Thank you for your interest in Vermeer Equipment -We look forward to earning and keeping your business Page 2 of 2 City of University Park, Texas VEHICLE PROCUREMENT REQUISITION (VPR) Date 9--t./ .-J Lj ----=------ INSTRUCTIONS: Department manager-complete the header portion of this form and forward the VPR to the Fleet Manager. This document and its attachments serve as the official requisition for a vehicle and ensure that all approvals have been made. Vehicle description: User Department: Account Number: Type of purchase: To eo woe~<av.l ~ J-ID'X-D P~e.\(S 1. Planned replacement ){ 2. Early replacement o 3. Upg~de o 4. Addition o Dept. mgr. signature Dept. head signature Anticipated City Council meeting approval date: ____ _ 1. Initial Request User Department or Fleet Manager submits VPR. User department includes brief written attachment describing need for and intended use of vehicle (not required for planned replacement of like equipment). 2. Specifications Fleet Ma ager reviews request and assists user department with develo ent of vehi e specifications. Fleet Manager approves specs. 9-'/-JY Date \\Ciient\P$\Finance\Fieet\Vehicle Procurement Request form.doc 3. Assemble prices Purchasing Agent and Fleet Manager assemble quotes, conduct bid process, or collect pricing from cooperative purchasing contracts. Purchasing Agent copies information to user department, who reviews and makes selection by signing below. ulr~r Date ift,fiy Date 5. Agenda preparation Purchasing Agent prepares agenda memo regarding compliance with City purchasing policy and State purchasing law and submits to City Secretary along with user department memo and bid tabulation . &2---- Purchasing Agent Date 6. City Council Approval Date 7. Purchase Order execution and order placement Purchasing Agent sets up Purchase Order and places order with vendor. Purchasing Agent sends PO copy to Fleet Manager 8. Vehicle delivery and acceptance Vendor delivers vehicle to Equipment Services Division. Fleet Manager or designee accepts delivery and approves payment of invoice for vehicle. Fleet Manager forwards approval to Accounts Payable Specialist for payment. \\Ciient\P$\Finance\Fieet\Vehicle Procurement Request form.doc 2 ' . .. Ship To Bill To Contact Address City State Postal Code Phone Fax hnl Qty 11 11 11 Comments: Professional Turf Products, L.P. I 0 I 0 North Industrial Blvd. Euless, Texas 76039 Will Dutton (888) 776-8873 ext. 5410 duttonw@proturf.com City of University Park BUYBOARD (CONTRACT# 447-14) "J' Brent C. Jones 5200 Pleasant Valley Road Dallas, TX TX 75205-1711 Model# 7385 41240 120-0703 120-0704 120-0705 41243 41232 125-8121 41157 07316 07339 07375 07317 117-4830 07419 07420 107-8037 117-4836 115-7825 41256 41253 DTC Comments: Proposal Description Toro Workman HDX-D (Kubota) MPWM Sprayer 200 Gallon Gray 0.60 gpm nozzle@ 40 PSI White 0.80 gpm nozzle @ 40 PSI Light Blue 1.00 gpm nozzle@ 40 PSI Pivoting Hose Reel MPWM Foam Marker Kit for MPWM Finish Kit for MPWM ProFoam Concentrate (4 one gal. per case) High Flow Hydraulic Kit (HDX Models) Deluxe Hard Cab (Does not include doors) Cab -Sliding Window Door Kit Light Kit "Right Side" for HD & HDX Cab Right I Left Mirrors Rear PTO Kit Hand Throttle (Daihatsu units only) Reverse Alarm Trailer Signal Wiring Kit Horn Kit Vi con Vicon mount kit One (1) rear facing light-cab mounted Workman Sprayer System SubTotal Destination Tax (Estimated) TOTAL mfidential Property of Professional Turf Products Date Tax Rate Destination Trade-In Finance Account Type Unit $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ Count on it. 9/4/2014 2.00% Contract Extended 21 ,676.32 12,462.64 106.14 106.14 106.14 2,579.67 1,658.31 281 .13 196.51 1,380.44 3,858.63 1,098.55 421 .22 249.89 789.29 147.39 302.31 140.43 28.20 2,981.46 1,983.07 100.00 52 ,653.88 52,653.88 Included 52,653.88 Page 1 c .. . ' For all New Equipment, Demo units may be available for up to 20% savings. For all New Equipment, Refurbished units may be available for up to 40% savings. Terms & Conditions: 1. Orders are considered contractual. Order cancellations are subject to fees up to 10% of the original order value. 2. New equipment delivery time is estimated at six weeks from the time credit is approved & documents are executed. 3. Pricing, including finance options, valid for 30 days from time of quotation. 4. After 30 days all prices are subjectto change without notice. 5. Used and Demo equipment is in high demand and availability is subject to change. A. Upon firm customer commitment to purchase, said equipment availablity will be determined and "locked". B. In the event equipment is unavailable at time of order, PTP will employ every resource to secure an acceptable substitute. C. PTP strongly advises the customer to issue a firm PO as quickly as possible after acceptance of quotation. 6. "Trade In Allowances" will be treated as a credit for future parts purchases on PTP account unless other arrangements have been made. Returns Policy: 1. All returns are subject to restocking, refurbishing, usage, and shipping fees. 2. All returns must be able to be sold as new. 3. Items missing parts are non returnable. 4. Professional Turf Products will have sole discretion as to the resalable condition of the product 5. This policy does not apply to items that are defective, or shipped incorrectly by PTP or one of its vendors. Payment: 1. Terms are net 10 unless prior arrangements have been made. 2. Quoted prices are subject to credit approval. A. PTP will work with third party financial institutions to secure leases when requested to do so. B. When using third party financiers, documentation fees & advance payments may be required. C. For convenience, monthly payments are estimated based on third party rate factors in effect at time of the quotation. D. PTP assumes no liability in the event credit becomes unavailable or rates change during the approval process. 3. There will be a service charge equal to 1.5% per month (18% per annum) on all past due invoices. 4. By Law we are required to file a "Notice to Owner" of our intent to file lien in the event of payment default. This notice must be sent within 60 days of the date the original invoice and will happen automatically regardless of any special payment arrangements that may have been made. Authorized Signature: -----------------------Date: ____________ _ mfidential Property of Professional Turf Products Page 2 c 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@C0056DFB\@BCL@C0056DFB.docx 2:47 PM 10/02/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Elizabeth Anderson, Purchasing Manager SUBJECT:InterlocalAgreement for Cooperative Purchasing with the City of Glenn Heights BACKGROUND: Attached is an interlocalagreement with the City of Glenn Heights. Approval of this agreement would facilitate cooperative purchasing between University Park and Glenn Heights. The City of Glenn Heights has a contract with Emergicon for EMS billing services, ePCR software, and hardware. The University Park Finance and Fire Departments would like to take advantage of this contract as it offers these services for a commission of 11%, vs. the 14% that University Park is currently paying. The interlocal agreement also allows for other cooperative purchasing between our two cities. This type of cooperative purchasing is allowed through the Interlocal Cooperation Act (Texas Government Code, Chapter 791). The City participates in similar arrangements with a number of purchasing cooperatives and individual municipalities. RECOMMENDATION: Staff recommends approval of the attached Interlocal Agreement with the City of Glenn Heights for cooperative purchasing. ATTACHMENTS: Interlocal agreement CITY OF GLENN HEIGHTS/CITY OF UNIVERSITY PARK INTERLOCAL COOPERATION AGREEMENT –PAGE 1 STATE OF TEXAS § § INTERLOCAL COOPERATION AGREEMENT COUNTY OF DALLAS § This lnterlocal Cooperation Agreement ("Agreement") is between the City ofGlenn Heights, Texas ("Glenn Heights") and the City ofUniversity Park("University Park"), (individuallyas the “Party” or collectively as the “Parties”), acting by and through their respective authorized officers. RECITALS: WHEREAS, this Agreement is authorized by Chapter 791 of the Texas Government Code and Subchapter F, Chapter 271, Texas Local Government Code(the “Code”); and WHEREAS, Section 271.102 of the Code authorizes a local government to participate in a cooperative purchasing program with another local government or a local cooperative organization; and WHEREAS, a local government that purchases goods and services pursuant to a cooperative purchasing program with another local government satisfies the requirement of the Code to seek competitive bids for the purchase of the goods and materials; and WHEREAS, eachParty has and will on an annual basis obtain competitive bids for the purchase of goods and services; and WHEREAS, the Parties desire to enter into a cooperative purchasingprogram which will allow each Party to purchase goods and services under each other's competitively bid contracts pursuant to Subchapter F, Chapter 271,of theCode; NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties agree as follows: ARTICLE I PURPOSE The purpose of this Agreement is to establish a cooperative purchasing program between the Parties, which will allow each Party to purchase goods and services under each other's competitively bid contracts pursuant to Subchapter F, Chapter 271,of theCode. ARTICLE II TERM 1.This Agreement shall take effect upon execution by the Parties. This Agreement shall be in effect from date of execution until terminated by either Party to this Agreement by written notice to the other Party stating the date of such termination. CITY OF GLENN HEIGHTS/CITY OF UNIVERSITY PARK INTERLOCAL COOPERATION AGREEMENT –PAGE 2 2.Prior to any cooperative purchases under this agreement, the Parties will designate which Party shall be responsible for the bidding process for a particular purchase. 3.The Parties agree that all specifications for said items shall be determined in cooperation with each other, with final approval with the Party responsible for final bid process. 4.Each Party shall be responsible for placing orders directly with and payment to the vendor under each contract entered into pursuant to the cooperative purchasing program, and shall be responsible for the vendors compliance with all conditions of delivery and quality of the purchased items. Neither Party shall be obligated to purchase any item merely by virtue of that Party’s approving specifications for said item, or by requesting to be included in an "open" contract for such items. 5.Each Party shall designate an official representative to act in all matters relating to this cooperative purchasing program, including the designation of specific contracts in which the Party desires to participate. ARTICLE III TERMINATION Either Party may terminate this Agreement by providing thirty (30) days’prior written notice to the other Party. ARTICLE IV PURCHASING The City Manager orother designee for each Party is authorized to act on behalf of the respective Party in all matters relating to this cooperative purchasing program. Each Partyshall make payments to the other Partyor directly to the vendor under the contract made pursuant to Subchapter F, Chapter 271,of the Code.Each Partyshall be responsible for the respective vendor's compliance with provisions relating to the quality of items and termsof delivery. ARTICLE V MISCELLANEOUS 1.Relationship of Parties: This Agreement is not intended to create, nor should it beconstrued as creating, a partnership, association, joint venture or trust. 2.Notice. Any notice required or permitted to be delivered hereunder shall be deemed received when sent in the United States Mail, Postage Prepaid, Certified Mail, Return Receipt Requested, or by hand-delivery or facsimile transmission addressed to the respective Partyat the address set forth below the signature of the Party. 3.Amendment. This Agreement may be amended by the mutual written agreement of both parties hereto. CITY OF GLENN HEIGHTS/CITY OF UNIVERSITY PARK INTERLOCAL COOPERATION AGREEMENT –PAGE 3 4.Severability. In the event anyone or more of the provisions contained in this Agreement shallfor any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. 5.GoverningLaw. The validity of this Agreement and any of its terms and provisions,as well as the rights and duties of the Parties,shall be governed by the laws of the State of Texas,and venue for any action concerning this Agreement shall be in the State District Court of Dallas County, Texas. 6,Entire Agreement. This Agreement represents the entire agreement among the parties with respect to the subject matter covered by this Agreement. There is no other collateral, oral orwritten agreement between the parties that in any manner relates tothe subject matter of this Agreement. 7,Recitals. The recitals to this Agreement are incorporated herein. 8.Counterparts. This Agreement may be executed in any number of counterparts, each of whom shall be deemed an original and constitute one and the same instrument. EXECUTED this _____ day of ___________________________2014. CITY OFGLENN HEIGHTS, TEXAS By:______________________________ _______________________, Mayor ATTEST: By:__________________________________ _______________________, City Secretary APPROVED AS TO FORM: By:__________________________________ Joe Gorfida, Jr., City Attorney CITY OF GLENN HEIGHTS/CITY OF UNIVERSITY PARK INTERLOCAL COOPERATION AGREEMENT –PAGE 4 EXECUTED this _____ day of _________________________ 2014. CITY OF UNIVERSITY PARK, TEXAS By:______________________________ Olin B. Lane, Mayor ATTEST: By:__________________________________ Christine Green, City Secretary APPROVED AS TO FORM: By:__________________________________ Name:Robert L. Dillard III Title:City Attorney (RLD; 9-17-14; TM68306) 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@CC05DE87\@BCL@CC05DE87.docx 12:17 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Christine Green, City Secretary SUBJECT:Minutes of the September 16, 2014 City Council Meeting BACKGROUND: Minutes of the September 16, 2014 meeting are included for the Council’s review. RECOMMENDATION: City Hall 3800 University Blvd. University Park, TX 75205 City of University Park Meeting Minutes - Draft City Council 5:00 PM Council ChamberTuesday, September 16, 2014 PRE-MEETING WORK SESSION(S) 3:15 - 4:00 P.M. The City Council met in open work session to review possible improvements to the Miracle Mile / Lovers Lane. No action was taken. Council Conference Room, 2nd floor, City Hall. 4:00 - 5:00 P.M. The City Council met in open work session to receive agenda item briefings from staff. No action was taken. Council Conference Room, 2nd floor, City Hall. CALL TO ORDERI. Rollcall Councilmember Bob Begert, Councilmember Dawn Moore, Councilmember Tommy Stewart, Councilmember Taylor Armstrong and Mayor Olin Lane Present:5 - INVOCATION: Councilmember Dawn MooreA. PLEDGE OF ALLEGIANCE: Councilmember Dawn MooreB. INTRODUCTION OF COUNCIL: Mayor Olin Lane, Jr.C. Page 1City of University Park September 16, 2014City Council Meeting Minutes - Draft INTRODUCTION OF STAFF: City Manager Robbie CorderD. City Manager Robbie Corder introduced new Director of Information Services Dale Harwell. He was selected for the position from among a group of highly qualified candidates. Dale has 14 years of experience in municipal technology, and worked for other area cities including Hurst and Euless. Dale Harwell addressed the Council and said that he is excited to begin working for the City. Other staff in attendance included Community Information Officer Steve Mace, Chief of Police Greg Spradlin, Director of Public Works Bud Smallwood, City Secretary Christine Green, Director of Parks & Recreation Gerry Bradley, Library Director Sharon Martin, Acting Community Development Director Jacob Speer, Fire Chief Randy Howell, and Director of Finance Tom Tvardzik. AWARDS AND RECOGNITION - NoneII. CONSENT AGENDAIII. 14-179 Consider approval of a request by Christ the King to conduct a 5K benefit run City Manager Corder said that 500 - 700 participants are expected for this 5K run organized by Christ the King Catholic Church. This Action Item was approved. 14-180 Consider approval of a park reservation request and route through University Park for the Susan G. Komen 3-Day Walk City Manager Corder said that 1500 - 2000 participants are expected for the Susan G. Komen 3-Day Walk. The participants will be walking through University Park on Sunday, November 9 with a rest stop in Goar Park. This event has taken place in the city for the past several years without any problems. This Action Item was approved. 14-183 Consider approval of the minutes of the September 9, 2014 City Council meeting with or without corrections Mayor Lane requested that the "A11" reference be removed from the September 9 minutes under the "Second public hearing on the proposed FY2105 budget and tax rate" item. The Minutes were approved with the requested change. Page 2City of University Park September 16, 2014City Council Meeting Minutes - Draft Approval of the Consent Agenda A motion was made by Councilmember Stewart, seconded by Councilmember Begert, to approve the Consent Agenda. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - MAIN AGENDAIV. 14-184 Public hearing on proposed FY15 Budget and property tax rate Mayor Lane opened the public hearing. Director of Finance Tom Tvardzik presented the FY2015 proposed budget and tax rate. He said this is the third and final public hearing required before adoption of the budget. The budget will be considered for adoption at the conclusion of this public hearing. The total budget for FY15 is $47.3 million, an increase of 2.4% or $1.2 million more than last year's budget. The tax rate is being lowered to 26.979 cents per $100 tax rate, down from 27.432 cents in FY14. However, the City property tax levy will increase due to the 7.61% increase in the certified taxable value. The average University Park homeowner will pay an additional $168 in property taxes next year because of an increase in property values - the average single family home increased in value by 8.44%. The Mayor stated that the City Council has now held three public hearings regarding the proposed 2015 tax rate and budget, has viewed presentations on the proposed budget, and considered the property tax rate necessary to support that budget. Notices regarding these public hearings have been published on the City's website, in the Park Cities News and in the Dallas Morning News. The Mayor asked if anyone wanted to speak. There were no speakers, and the public hearing was closed. 14-185 Consider and act on an ordinance adopting the FY2015 Budget Finance Director Tom Tvardzik reviewed the FY15 budget highlights. He stated that the budget totals $47,262,209, a 2.4% increase from fiscal 2014. Relevant aspects of the proposed budget have been reviewed and approved by three different City Advisory Committees. The budget and related tax rate have been the subject of three separate public hearings. He asked the City Council to consider approval of the Fiscal Year 2015 Budget ordinance, thereby adopting the fiscal year 2015 Budget. A motion was made by Councilmember Armstrong, seconded by Councilmember Moore, that this Ordinance be adopted. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - Enactment No: ORD No. 14/022 Page 3City of University Park September 16, 2014City Council Meeting Minutes - Draft 14-186 Ratify property tax rate of $0.26979 as reflected in FY2015 budget Finance Director Tom Tvardzik said that with the approval of the Fiscal Year 2015 budget, Texas Local Government Code Section 102.007(c) requires that the City Council take a separate vote ratifying the property tax increase reflected in the budget. He said the statement requiring ratification has been published in a newspaper of general circulation within the county, and is also contained on the cover of the city manager's FY15 budget memo. It reads as follows: "THIS BUDGET WILL RAISE MORE TOTAL PROPERTY TAXES THAN LAST YEAR'S BUDGET BY $1,043,441 OR 6.48%, AND OF THAT AMOUNT, $284,907 IS TAX REVENUE TO BE RAISED FROM NEW PROPERTY ADDED TO THE TAX ROLL THIS YEAR." He asked the Council to consider ratifying the property tax increase, and the related property tax rate of 26.979 cents per hundred dollars of property value, as reflected in the fiscal 2015 budget. A motion was made by Councilmember Taylor Armstrong, seconded by Councilmember Dawn Moore, to ratify the property tax rate. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - 14-187 Consider and act on an ordinance levying 2014 ad valorem taxes and setting tax rate Finance Director Tom Tvardzik introduced this ordinance adopting and levying the 2014 tax rate, supporting the fiscal 2015 budget. The proposed rate of 26.979 cents per $100 taxable value is a decrease from the prior year rate of 27.432 cents. He asked the Council to consider approval of the 2014 property tax rate ordinance. A motion was made by Councilmember Armstrong, seconded by Mayor Lane, that this Ordinance be adopted. The motion carried by the following vote: Aye:Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 4 - Nay:Councilmember Begert1 - Enactment No: ORD No. 14/023 Page 4City of University Park September 16, 2014City Council Meeting Minutes - Draft 14-188 Consider and act on an ordinance adopting the FY2015 pay plan Finance Director Tom Tvardzik said that this is the fourth and final budget item tonight, the ordinance adopting the pay plan for Fiscal Year 2015. Along with some structural pay grade changes within the Public Safety function, the plan includes a 2% raise for all full-time positions within the City. The 2015 pay plan has been reviewed and recommended by the Employee Benefits Advisory Committee. A motion was made by Councilmember Taylor Armstrong, seconded by Councilmember Dawn Moore, that this ordinance be adopted. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - Enactment No: ORD No. 14/024 14-181 Consider and act on an ordinance abandoning water line easements of the Preston Road Fresh Water District to the abutting owners City Manager Corder said the the City Council has previously approved abandonments of easements for the Preston Road Fresh Water District in December 2012, June 2013, and August 2014 for specific properties. The easements were designated for installation and maintenance of water mains for the Preston Road Fresh Water District, though these water mains were never installed. This is a blanket ordinance abandoning the easement at any and all locations within the City of University Park. This will eliminate the need to bring future abandonment requests to the City Council each time a property owner in the District wants to redevelop a lot. A motion was made by Councilmember Stewart, seconded by Councilmember Begert, that this Ordinance be adopted. The motion carried by the following vote: Aye:Councilmember Begert, Councilmember Moore, Councilmember Stewart, Councilmember Armstrong, and Mayor Lane 5 - Enactment No: ORD No. 14/025 PUBLIC COMMENTSV. Corinna Chandler, 3459 McFarlin Blvd., addressed the Council about pedestrian safety in school zones. She has a 6th grader at McCulloch Intermediate School. She doesn't like kids riding their bikes on the sidewalks. She witnessed a child on a bike hit another child while passing her on the sidewalk today, and she wants the Police Department to help improve pedestrian safety near the schools. ADJOURNMENTVI. Page 5City of University Park 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@7805415B\@BCL@7805415B.docx 2:37 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO: Honorable Mayor and City Council FROM: Robbie Corder, City Manager SUBJECT:Discuss: Request from Karin Zaner, 3548 Milton,to address the City Council BACKGROUND: The City Council received a letter from Karin Zaner on October 1st, 2014, requesting an opportunity to address the City Council. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@7805DF60\@BCL@7805DF60.docx 2:37 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO: Honorable Mayor and City Council FROM: Gene R. Smallwood, P.E. SUBJECT:Engineering Proposal for Mile Per Year Stanhope / Shenandoah and Other Alleys project (Project 47050) BACKGROUND: City Council approved the FY 15 Capital Budget on September 9, 2014 which includes a Mile Per Year project designed to replace the water and sanitary sewer mains and pavement in five (5)locations. These locations were selected based on the high number of water main breaks in recent years. Staff solicited a proposal from Binkley and Barfield to provide the necessary surveying and engineering services associated with development of plansand specifications for the construction. A copy of the proposal, in the amount of $214,920.00, is attached for Council review. As mentioned, funds are identified for this work in the Capital Budget. RECOMMENDATION: Staff recommends that City Councilapprove the Binkley & Barfield proposal in the amount of $214,920.00 and authorize the City Manager to execute a contract with Binkley and Barfield for the work. Page 1 CONTRACT FOR PROFESSIONAL ENGINEERING SERVICES for UNIVERSITY PARK PROJECT #BC14071 THIS AGREEMENT made and entered into on the date last stated below between the City of University Park, hereinafter called “CITY”, acting by and through Robbie Corder, City Manager, duly authorized to act on behalf of the CITY and, Binkley & Barfield - C&P, Inc., hereinafter called “ENGINEER”, acting by and through Michael Cummings, P.E., duly authorized to so act on behalf of the ENGINEER. WHEREAS, the CITY desires PROFESSIONAL engineering/surveying services in connection with the design of pavement and utility replacement in the locations as follows: o 8” Water Line in Normandy from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Normandy Avenue and San Carlos Drive from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Stanhope Avenue and Shenandoah Street from Roland Avenue to Armstrong Parkway o Paving, Water and Sanitary Sewer Replacement in Alley between McFarlin Blvd. and Larchmont Avenue from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Hyer Street and Grassmere Lane from Loma Alto Drive to Douglas Avenue for the City of University Park, hereinafter called “the PROJECT”; and WHEREAS, the CITY has determined that the ENGINEER has experience in the area involved in the Project and is qualified to perform the work, and the ENGINEER is willing to enter into a contract with the CITY to perform the engineering services desired by the CITY in connection with the PROJECT. THE CITY AND ENGINEER AGREE AS FOLLOWS: The CITY hereby retains the ENGINEER to perform engineering services in connection with the PROJECT described above. 1. SCOPE OF SERVICES The scope of Engineering/Surveying services to be performed by the ENGINEER shall be as follows: Page 2 1.1 Approach to Project Survey by conventional method and prepare engineering plans and construction takeoff for the design of pavement and utility replacement in the locations as follows: o 8” Water Line in Normandy from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Normandy Avenue and San Carlos Drive from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Stanhope Avenue and Shenandoah Street from Roland Avenue to Armstrong Parkway o Paving, Water and Sanitary Sewer Replacement in Alley between McFarlin Blvd. and Larchmont Avenue from Armstrong Parkway to Douglas Avenue o Paving, Water and Sanitary Sewer Replacement in Alley between Hyer Street and Grassmere Lane from Loma Alto Drive to Douglas Avenue 1.2 Detailed Scope of Services  Preliminary site investigation  Design Survey (conventional method)  Locate Existing Utilities (Actual physical location where possible by conventional survey methods but on all else the location will be based on existing plans and information furnished by the City and franchise utilities)  Assist City with franchise utility coordination.  Engineer Plans for paving and utility improvements as discussed.  Preparation of a Quantity Takeoff.  Furnish construction controls as required. 2. CITY’S RESPONSIBILITIES So as not to delay the services of ENGINEER, the CITY shall do the following in a timely manner: 2.1 Provide Existing Data City to furnish: Existing engineering plans Property owner information Franchise utility contacts. Existing data delivered to the ENGINEER by the CITY remains the property of the CITY and must be returned to the CITY after completion of the PROJECT. Page 3 2.2 Provide Standards After authorization to proceed, if required by the Scope of Work, provide CITY standard bidding and contract documents which are to be used for public bidding of the PROJECT. The CITY agrees to bear total responsibility for accuracy and content of CITY furnished documents. If required by the Scope of Work, the ENGINEER shall provide all bid item descriptions, item quantities, special provisions, technical specifications, plans and other project specific information that is required for bidding the PROJECT. 2.3 Provide Access Arrange for access to, and make all provisions for, ENGINEER or ENGINEER’S Sub- consultants to perform services under this AGREEMENT. 2.4 City Representative CITY shall designate a representative to act as a contact person on behalf of the CITY. 2.5 Franchise Utilities CITY shall assist in the project coordination with the Franchise Utilities. CITY shall furnish the current list of contacts for all Franchise Utilities. 3. SCHEDULE The ENGINEER’S services shall be performed in a timely manner consistent with sound professional practices. The ENGINEER will complete the work according to the following schedule: Preliminary site investigation 1 Week Design Survey 8 Weeks Engineer Plans for paving and utility improvements 36 Weeks Franchise utility coordination 2 Weeks Preparation of Quantity Takeoff 1 Week Construction Controls Total 48 Weeks The time limits set forth in the schedule does not include allowances for review time by the CITY and/or approval by authorities having jurisdiction over the PROJECT. Any adjustments made to the agreed upon schedule shall be made in writing and acceptable to both parties. The ENGINEER shall begin work within 10 days of receipt of the executed Agreement and written Notice to Proceed. Page 4 3.1 Completion of Services ENGINEER’S services under each item of the finalized Scope of Work shall be considered complete on the date when the submissions for that item have been accepted by CITY. 3.2 Changes If the CITY requests significant modifications or changes in the Scope of Services, general scope, extent or character of the PROJECT, the time of performance of ENGINEER’S services, the various rates of compensation and schedule shall be adjusted equitably. 3.3 Written Authorization for Additional Work Any provision in this Contract notwithstanding, it is specifically understood and agreed that the ENGINEER shall not authorize or undertake any work pursuant to this Contract which would require the payment of any fee, expense or reimbursement in addition to the fees stipulated in Section 4. (Payment for Services) of this Contract, without first having obtained the specific written authority to do so from the CITY. 4. PAYMENT FOR SERVICES 4.1 Terms Terms used in describing the applicable method of payment for services provided by the ENGINEER shall have the meaning indicated below: Basic Engineering Fee: Basic Engineering Fee shall mean those expenses incurred by the ENGINEER in prosecuting the PROJECT Scope of Services. Reimbursable Expenses Reimbursable Expenses shall mean the actual expenses incurred by ENGINEER in the interest of the PROJECT not covered under the Scope of Services, for courier or express mail service and telegrams, reproduction of reports, drawings, specifications, bidding documents, and similar PROJECT-related items in addition to those required under Section I. Page 5 Additional Services Additional services not covered under the Scope of Services, will be provided to the CITY on an hourly basis plus reimbursable expenses as agreed in writing at the time such services are authorized. 4.2 Basis and Amount of Compensation for Basic Services Design Survey $ 32,450.00 Engineer Plans for paving and utility improvements $ 168,270.00 Preparation of Quantity Takeoff $ 3,800.00 Construction Controls $ 7,200.00 Prints, plots, deliveries, mileage $ 3,200.00 TOTAL $ 214,920.00 The total amount of the engineering contract is $214,920.00. 4.3 Basis and Amount of Compensation for Reimbursable Expenses (See attached fee schedule) 4.4 Basis and Amount of Compensation for Additional Services (See attached fee schedule) 4.5 Partial Payments for Services Partial fee payments may be applied for at monthly intervals, based upon statements which reflect the percentage of work completed for the various items listed under Scope of Services, Reimbursable Expenses and Additional Services. These statements shall be prepared by the ENGINEER and must be verified and approved by the CITY. 4.6 Delay If ENGINEER’S design services or service during construction of the PROJECT are delayed or suspended in whole or in part by the CITY for more than one year for reasons beyond ENGINEER’S control the various rates of compensation, including Additional Services, provided for elsewhere in this AGREEMENT shall be subject to equitable adjustment. Page 6 5. TERMINATION, SUSPENSIONS OR ABANDONMENT 5.1 Termination The CITY or the ENGINEER may terminate this AGREEMENT for reasons identified elsewhere in this AGREEMENT. In the event such termination becomes necessary, the party effecting termination shall so notify the other party, and termination will become effective thirty (30) calendar days after receipt of the termination notice. Irrespective of which party shall effect termination or the cause therefor, the CITY shall within thirty (30) calendar days of termination remunerate ENGINEER for services rendered and costs incurred, in accordance with the ENGINEER’S prevailing fee schedule and expense reimbursement policy. Services shall include those rendered up to the time of termination. All plans, field survey, and other data related to the PROJECT shall become the property of CITY upon termination of the AGREEMENT and shall be promptly delivered to the CITY in a reasonably organized form. Should CITY subsequently contract with a new Engineer for continuation of services on the PROJECT, ENGINEER shall cooperate in providing information. No amount shall be due for lost or anticipated profits. 5.2 Suspension If the Project is suspended by the CITY for more than 30 consecutive days, the ENGINEER shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the ENGINEER’S compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the ENGINEER’S services. 5.3 Abandonment This Agreement may be terminated by the City upon not less than seven (7) days written notice to the ENGINEER in the event that the Project is permanently abandoned. If the Project is abandoned by the CITY for more than ninety (90) consecutive days, the ENGINEER or the CITY may terminate this Agreement by giving written notice. 5.4 Failure to Pay Failure of the CITY to make payments to the ENGINEER in accordance with this Agreement shall be considered substantial nonperformance and cause for termination. If the CITY fails to make payment to ENGINEER within thirty (30) days of a statement for services properly performed, the ENGINEER may, upon fourteen (14) days written notice to the CITY, suspend performance of services under this Agreement. Unless ENGINEER receives payment in full within fourteen (14) days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services under this section, the ENGINEER shall have no liability to the CITY for delay or damage caused the CITY because of such suspension of services. Page 7 6. GENERAL CONSIDERATIONS 6.1 Professional Standards Services performed by the ENGINEER under this AGREEMENT will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions. The ENGINEER shall comply with the applicable laws and rules of the current “Texas Engineering Practice Act”, the “Professional Land Surveying Practices Act” and the “Texas Board of Professional Land Surveying General Rules of Procedures and Practices”. The CITY’S approval, acceptance, use of or payment for all or any part of the ENGINEER’S services herein under or of the project itself shall in no way alter the ENGINEER’S obligations of the CITY’S rights thereunder. 6.2 Progress and Performance The provisions of this Contract and the compensation to ENGINEER have been agreed to in anticipation of continuous and orderly progress through the completion of the ENGINEER’S services. Time for performance shall be extended to the extent necessary for delays due to circumstances over which the ENGINEER has no control. If the ENGINEER’S services are suspended or delayed the times of performance shall be extended to the extent of such delay or suspension. A delay or suspension shall not terminate this agreement unless ENGINEER elects to terminate in accordance with the provisions of Section V of this Contract. If a delay or suspension extends for a period of greater than one year for reasons beyond the control of the ENGINEER, the fees and rates of compensation set forth in Section IV shall be subject to re-negotiating. 6.3 City Control It is understood and agreed that the CITY shall have complete control of the services to be rendered, and that no work shall be done under this Contract until the ENGINEER is instructed to proceed with the work. 6.4 Independent Agent ENGINEER and CITY agreed that ENGINEER and any officer, employee or agent of ENGINEER, in the performance of this Contract shall act in an independent capacity and not as an officer, agent or employee of the CITY. 6.5 Compliance with Laws ENGINEER shall comply with all Federal, State, and local laws and ordinances in the execution of all work in connection with this PROJECT. Page 8 6.6 No Additional Work Without Authorization Any provision in the contract notwithstanding, it is specifically understood and agreed that the ENGINEER shall not authorize or undertake any work pursuant to this contract, which would require the payment of any fee, expense or reimbursement in addition to the fee stipulated in Article 4 of this Contract, without having first obtained specific written authority therefor from the CITY. 6.7 Assignment & Subcontracting This contract shall not be assigned or subcontracted in whole or part without the written consent of the CITY. 6.8 Indemnification ENGINEER, its officers, agents and employees agree to indemnify, hold harmless, and defend the CITY, at ENGINEER’S cost, its officers, agents, and employees from and against any and all claims or suits for injuries, damages, loss, or liability of whatever kind of character, arising out of or in connection with the performance by the ENGINEER of those services contemplated by the Agreement, based upon negligent acts or omissions of ENGINEER, its officers, agents, employees, consultants and subcontractors, whether or not caused solely by the ENGINEER, its officers, agents, employees, consultants or subcontractors or jointly with any other party. 6.9 Insurance ENGINEER shall secure and maintain insurance that will protect him from claims under the Worker’s Compensation Act (statutory amounts). ENGINEER shall secure and maintain Commercial General Liability Insurance that will protect him from claims for bodily injury, death or property damage which may arise from the performance of his services under this CONTRACT, written on an occurrence basis, in the following amounts: For engineering design contracts in the amount of $10,000.00 or less, insurance in an amount not less than $1,000,000.00 per occurrence and $1,000,000.00 per annual aggregate for bodily injury or death and property damage. ENGINEER shall maintain Comprehensive Automobile Liability Insurance covering all owned, non-owned, and hired vehicles with combined single limit coverage of $500,000 for bodily injury, death or property damage, written on an occurrence basis. For engineering design contracts for more than $10,000.00, insurance in an amount not less than $1,000,00 per occurrence and $2,000,000 annual aggregate for bodily injury or death and property damage. ENGINEER shall maintain Comprehensive Automobile Liability Insurance covering all owned, non-owned, and hired vehicles with combined single limit coverage of $1,000,000 for bodily injury, death or property damage. Page 9 ENGINEER shall maintain, at no expense to CITY, a professional liability (errors and omissions) insurance policy placed with a company rated at least A-/VII by Best’s Key Rating Guide, authorized to do business in Texas. This coverage must be maintained for at least two (2) years after the PROJECT is completed. Coverage must be written on an occurrence basis. However, at its sole discretion, the CITY may accept coverage written on a claims-made basis if the policy provides for a retroactive date equivalent to the inception date of the CONTRACT or earlier, maintained during the full term of the CONTRACT. The minimum limits of coverage shall be in the following amounts: For engineering design contracts in the amount of $50,000 or less, insurance in an amount not less than five hundred thousand dollars ($500,000). For engineering design contracts over $50,000, insurance in an amount not less than one million dollars ($1,000,000). All policies, except Worker’s Compensation and Professional Liability, shall name the CITY as additional insured. All policies shall contain a waiver of subrogation in favor of the City and shall require the giving of written notice to CITY at least thirty (30) days prior to cancellation, non-renewal or material modification of any policies, evidenced by return receipt of United States Certified Mail. ENGINEER shall furnish CITY with copies of said policies or certificates evidencing such coverage. 6.10 Property All documents, including drawings, field notes, surveys, tracings, calculations, computer input and output, digital or computer files, etc., prepared by the ENGINEER pursuant to this contract shall become the property of the CITY. The ENGINEER may retain copies of all documents. Any reuse of the documents shall conform to The Texas Engineering Practice Act. 6.11 Governing Law This CONTRACT has been made under and shall be governed by the laws of the State of Texas. The parties agree that the performance and all matters related thereto shall be in Dallas County, Texas. Page 10 7. DOCUMENT EXECUTION IN WITNESS WHEREOF, the parties have executed this Agreement the ________ day of October, 2014. CITY OF UNIVERSITY PARK By: _________________________________ City Manager Attest: __________________________________ City Secretary Approved as to Form: By: __________________________________ City Attorney Or His Designee ENGINEER By: _________________________________ Binkley & Barfield - C&P, Inc. Michael Cummings, P.E. Attest: _________________________________ Secretary If ENGINEER’S firm is a corporation, affix corporate seal. SCHEDULE  OF  FEES January, 2014 SCHEDULE  OF FEESSCHEDULE  OF  FEES Rates  per  HourREIMBURSABLES Principal$200.00 Plotting:   Senior Project Manager$180.00 Senior Project Engineer$140.00 Translucent Bond Project Manager$160.00 24" x  36" Black & White$8.40 Project Engineer   $135.00 24" x  36" Color $36.00 Engineer I $110.00 11" x 17" Bond ‐ Black & White$0.35 Engineer II $95.00 11" x 17" Bond ‐ Color$1.25 E.I.T.$120.00 Sr. Civil Tech. $110.00 Sr. Civil Tech. I$95.00 Presentation Paper: Civil/Technician II$85.00 Direct Cost Plus 15% Designer$95.00          In‐House Printing/Copying: 24" x 36" Blacklines per sheet$2.00 24" x 36" 0.003 Mylar/sheet $18.00 Blackline Multi‐Sets/sheet$2.25 Clerical/Administration$75.00 In‐House Scanning:$1 per Square Foot Creating PDF FILE$5.00 Per Sheet Burn CD$25.00 MILEAGE Reimbursement to Employees$0.565 Deliveries and Special Printing:Direct Cost Plus 15% Long Distance TelephoneDirect Cost Plus 15% Travel Time     (Auto)         $0.565 per mile Air Travel        Direct Reimbursement q\files\docs\Fee Schedule with No Names 2014.xlsx 9/25/2014 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@78056D66\@BCL@78056D66.docx 2:37 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:Gerry Bradley, Directorof Parks SUBJECT:Smith Park Playground Improvements BACKGROUND: Funding for the replacement of the Smith Park Playground has been approved within the Parks Department’s 2014-15 Capital Improvements Program. The project will include the replacement of the existing playground, the installation of rubberized surfacing, shade structures, and the installation of new tables, benches and drinking fountain. The improvements to the Smith Park Playground will conform to guidelines established at similar playgrounds within the City’s park system. The cost of the project, including a grant from the manufacturer is $ 191,110.30. Staff is requesting an additional $5,000.00 for funding project contingency; bringing the total project budget to $196,110.30. The project’s cost is under budget and the manufacturer’s pricing is listed on the Buy Board, meeting all established purchasing guidelines. RECOMMENDATION: Staff is requesting City Council approval of staff’s recommendation to support a purchase order to GameTime (Total Recreation Products, Inc.) in the amount of $191,110.30 for the Smith Park Playground Improvements QuantityQuantityQuantityQuantity Part #Part #Part #Part #DescriptionDescriptionDescriptionDescription Unit PriceUnit PriceUnit PriceUnit Price AmountAmountAmountAmount 1 RDU Game Time - TJ-08084-14-2A1R1 Custom PowerScape 5-12 Play Unit with Shade $56,757.00 $56,757.00 1 GRANT Game Time - GameTime Grant Matching Funds ($22,358.80)($22,358.80) 1 RDU Game Time - TJ-08084-14-2A2R2 Custom PowerScape 2-5 Play Unit With Shade $41,193.00 $41,193.00 1 GRANT Game Time - GameTime Grant Matching Funds ($16,227.53)($16,227.53) 1 RDU Game Time - 2 Bay PowerScape Swings with (2) Belt Seats, (1) Tot Seat and (1) Adaptive Seat $3,571.00 $3,571.00 6 T964-S6 UltraSite - 6' Charleston Bench, with back slat, surface mounted - Thermo Frame - Price Includes Discount of $1,025.10 $968.15 $5,808.90 2 PLX-36RB UltraSite - 36 Gallon Lexington Receptacle With Rain Bonnet Lid and Plastic Liner, surface mounted - Powder Coated - Price Includes Discount of $289.80 $821.10 $1,642.20 1 P238-V6 UltraSite - 6' Extra Heavy Duty Table, Diamond - PC Frame - Price Includes Discount of $113.85 $645.15 $645.15 2 P238H-V8 UltraSite - 8' Double Sided Extra Heavy Duty ADA Table, Diamond - PC Frame - Price Includes Discount of $244.20 $691.90 $1,383.80 1 PIP91514R2 GT-Impax - 5185 SF of Poured in Place Rubber Surfacing, 50% Black/50% Standard Color, Aromatic Binder, 8' Critical Fall Height - Price Includes Discount of $7,647.60, Freight and Installation of surfacing materials only. $59,828.16 $59,828.16 by Total Recreation Products, Inc. 17802 Grant Road Cypress, Texas 77429 Phone: 281-351-2402 Toll Free: 800-392-9909 Fax: 281-351-2493 QUOTE #69380 09/19/2014 TJ-08084-14 Rev 2 City of University Park - Smith Park City of University Park Attn: Gerry Bradley 4420 Worcola St. Dallas, TX 75206 Phone: 214-987-5486 Fax: 214-987-5499 gbradley@uptexas.org Ship To Zip: 75022 Page 1 of 4 QuantityQuantityQuantityQuantity Part #Part #Part #Part #DescriptionDescriptionDescriptionDescription Unit PriceUnit PriceUnit PriceUnit Price AmountAmountAmountAmount 1 INSTALL Game Time - Installation and Demo - Installation of above equipment, demo of existing unit, swings, whirl and 6 benches, unbolting existing tables and trash receptacles (customer responsible for moving to storage), removal and disposal of existing ewf, 5185 SF of compacted subbase for new poured in place surfacing, cutting and re-pouring concrete for new equipment to fit into area, install also includes security fence with 2 keep out signs. No other site work, demolition or concrete work included. Acquisition of any and all permits is the sole responsibility of the customer. $50,598.15 $50,598.15 freight calculated to Installer's Zip 75022: GRANT MATCHING FUNDS ARE AVAILABLE THROUGH Nov. 15th, 2014 OR UNTIL EXHAUSTION OF FUNDS. DUE TO RISING FUEL COSTS, FREIGHT SHOWN IS ESTIMATED FREIGHT. ACTUAL FREIGHT WILL BE DETERMINED AT THE TIME OF YOUR ORDER. PLEASE CONTACT US TO VERIFY CURRENT FREIGHT CHARGES PRIOR TO PLACING YOUR ORDER. Contract: Buy Board Contract #423-13 SubTotal: Discount: Estimated Freight: Total Amount: $182,841.03 ($178.55) $8,447.82 $191,110.30 Important Terms & Conditions - Please Review To place an order, you must provide one of the following: a Purchase Order assigned to GameTime; or this Price Quotation, signed by an authorized purchaser, with a check made payable to GameTime. GameTime will also accept payment by Visa, MasterCard, or American Express. A current approved credit application is required for Net 30 terms. This quotation explicitly excludes any and all items not expressly specified or identified above. No other product, equipment, or service is included, regardless of any Contract Document, Contract Section, Plans, Specifications, Drawing, or Addendum. Delivery for most GameTime equipment is approximately 5-6 weeks after all order documents have been received and payment terms have been approved. A current, approved credit application is required for N30 terms. To place an order, you must provide a purchase order or a signed Total Recreation Products, Inc. (hereafter described as TRP) quote, assigned to GameTime. Neither general contractor nor subcontractor contracts can be accepted. Purchase documents that contain indemnity or hold harmless conditions cannot be accepted. Retainage is not permitted. The following must be received before your order can be processed: complete billing and shipping addresses, a contact name and phone #, and all color choices. Manufacturer's colors may vary from year to year. You are responsible for ensuring that any required submittal approvals are completed before placing your order for processing. TRP reserves the right to limit submittals to one copy. Shop drawings, bluelines, sepias, are not available. Closeout documents may be limited to GameTime or TRP standard issue. If Sales Tax Exempt, a copy of your tax exemption form or resale certificate must accompany your order, or any applicable sales tax, will be added to your invoice. Most GameTime products are shipped from the Ft. Payne, AL plant. GameTime cannot hold orders or store equipment. Equipment is invoiced when shipped. If a cash sale, your payment must be received in full before the order will be processed. Contractors must also provide copies of current, fully executed bid/performance/payment bonds, as applicable. Pricing shown does not include any charges for permits, bonding, prevailing wage, or additional insured certifications. Unless otherwise noted, any quantity of surfacing or playcurbs quoted has been calculated specifically for the equipment and layout shown. No additional surfacing or curbing is included, and no allowance has been made, for an unleveled, convoluted or larger site, or for a different layout. Neither GameTime nor TRP is responsible for any surface, curbing, border, or drain that is provided by others. Also please confirm that your area is adequate for the equipment that you are purchasing. QUOTE #69380 09/19/2014 TJ-08084-14 Rev 2 City of University Park - Smith Park Page 2 of 4 Installation charges, if quoted, are for a "standard" installation unless specifically noted to be otherwise. Installation charges are due upon completion. Standard installations are based upon a soil work site, that is freely accessible by truck, (no fencing, tree/landscaping or utility obstacles, etc.), and level, (+/- 1-2% maximum slope). An accessible water source must be available to the installer. Any site work that is not expressly described is excluded. Standard installation does not include any extra or additional machinery, drillers, etc., for rock excavation. If rock conditions are encountered, additional charges will apply. Standard installations generally require from 2-10 business days to complete, depending upon the amount and type of equipment, site conditions, weather, and the installer's schedule. Work may or may not be performed in consecutive days. Playcurbs are staked in, not set in concrete. Engineered wood fiber and shredded rubber surfacings are spread, not compacted, rolled, or watered. Landscape timbers are not warranted. The Customer is responsible for locating and clearly marking all underground utilities in the installation area before any installation work can begin. The installer is not responsible for damages, repairs, or discontinuance of business due to damaged utilities. If applicable, sprinkler system locates, re-working and repairs are excluded from installation charges. Installation of all products, (equipment, borders, fall surfacing and amenities) are as quoted and approved by acceptance of quotes and drawings. As a precautionary measure, work in progress areas will be taped off at the end of the workday. Pier spoils from installation shall be spread at site, site will be left rough grade. Trash disposal is the responsibility of the Customer. The installer is not responsible for any damages or re-work resulting from after hours events or activities during the work in progress period. Temporary fencing is only provided by specific request, and additional charges will apply. Collectively and/or individually, not the manufacturer, TRP, their representatives, nor the installation company shall be held liable for any damages resulting from misuse, vandalism, or neglect. Any deviations from approved and accepted placement of all items, along with additional work, over and above quoted items, will be chargeable to the customer. Once work is completed the customer will be notified if present at the job site, and all responsibility of any new work will be transferred to the customer. The customer is responsible for maintaining the integrity of completed installation work until all components have seated and/or cured (concrete footings, etc.). Your project site must be completely prepared and ready to receive your equipment before any installation work begins. Acquisition of any and all permits is the sole responsibility of the customer. Additional charges may be billed for any extra hours or trips needed as a result of the work site not being ready. Neither the installation contractor, GameTime nor TRP will be responsible for delays caused by shortages, incorrect parts, weather conditions, other contractors, or lack of site readiness. If you are receiving your equipment, you are responsible for unloading and accepting delivery from the freight company and reporting any damaged freight or shortages on the freight bill at the time. You will also be responsible for a complete inventory of your received equipment and reporting any discrepancies to us immediately. Neither the freight company nor the manufacturer will resolve shipment discrepancies that are not reported immediately. Make sure that all items have been received before any type of installation work is scheduled. The freight carrier will be instructed to call your designated contact 24 hours before delivery to arrange a delivery appointment. Once accepted, orders can only be changed or canceled with the consent of GameTime and TRP, and on terms that will indemnify them against loss. Changed or canceled orders are subject to a $100.00 service charge. Additionally, canceled orders are subject to a 25% restocking fee, plus freight charges (to and from). Built-to-order equipment orders are non-cancelable. Changes to orders that have been shipped and invoiced are subject to the above $100.00 service charge plus additional restocking/return charges of 25%. Non-returnable items shall be charged at full invoice value. Any return transportation charges shall be for the Buyer's account. Replacement parts are also subject to the cancellation/returns policy. Please carefully review any research information that has been sent to you and confirm that you are ordering the correct replacement parts for your equipment. This quotation is valid 30 days. After 30 days, please request an updated quote. Prices may be subject to material and fuel surcharges at the time of shipment and are subject to change without notice. Current prices will apply at the time of shipment. Acceptance of this quote indicates your agreement to GameTime's credit terms, which are net 30 days, FOB shipping with approved credit. Any deviations from this proposal may invalidate the quoted pricing and/or terms. THIS QUOTATION IS SUBJECT TO POLICES IN THE CURRENT GAMETIME PARK AND PLAYGROUND CATALOG AND THE FOLLOWING TERMS AND CONDITIONS. OUR QUOTATION IS BASED ON SHIPMENT OF ALL ITEMS AT ONE TIME TO A SINGLE DESTINATION, UNLESS NOTED, AND CHANGES ARE SUBJECT TO PRICE ADJUSTMENT. PURCHASES IN EXCESS OF $1,000.00 TO BE SUPPORTED BY YOUR WRITTEN PURCHASE ORDER MADE OUT TO GAMETIME, C/O TOTAL RECREATION. Acceptance of quotation: Accepted By (printed): _________________________________ P.O. No: _____________________________ Signature: ___________________________________________ Date: ________________________________ Title: _______________________________________________ Phone: ______________________________ Facsimilie: __________________________________________ Purchase Amount: $191,110.30 QUOTE #69380 09/19/2014 TJ-08084-14 Rev 2 City of University Park - Smith Park Page 3 of 4 Order Information: Bill To: _____________________________________________ Ship To: _________________________________________ Company: ___________________________________________ Company: ________________________________________ Attn: ________________________________________________ Attn: ____________________________________________ Address: _____________________________________________ Address: _________________________________________ City, State, Zip: _______________________________________ City, State, Zip: ___________________________________ Contact: ______________________________________________ Contact: _________________________________________ Email Address: _______________________________________ Email Address:_____________________________________ Tel: _________________________________________________ Tel: ____________________________________________ Fax: _________________________________________________ Fax: ___________________________________________ QUOTE #69380 09/19/2014 TJ-08084-14 Rev 2 City of University Park - Smith Park Page 4 of 4 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@CC05CE60\@BCL@CC05CE60.docx 12:17 PM 10/03/14 AGENDA MEMO 10/7/2014Agenda TO:Honorable Mayor and City Council FROM:George Ertle, Assistant to the City Manager SUBJECT:Consider approval of a License Agreement with Extenet Systems, Inc. for Distributed Antenna Systems and small cell networks in the City’s public rights-of-way BACKGROUND: Approximately one year ago, ExteNet Systems, Inc. ("ExteNet") approached the City about placing Distributed Antenna Systems ("DAS") or small cell networks in Town's rights-of-way. These systems are used to support cell phone networksand consist of antenna nodes mounted on existing utility poles that areconnected by fiber optic cable. The fiber optic cables connect to a central hub location, located at the Chase Bank building in Snider Plaza. Each antenna node consists of two cabinets, one of which is a control box, and the other is a battery back-up unit. Each node also hasa small power meter box and disconnect switch, each of which will not exceed three feet (3') in height, two feet (2') in width, and eighteen inches (18") in depth. ExteNet has a pole license agreement with Oncor and all facilities will be located in the alley rights-of-way. Equipment will be located thirteen feet (13’) above grade to avoid interference with Sanitation vehicles operating in the alleys. Initially, ExteNet represented that a license was not needed for the use of Cityrights-of- way. In further discussions, it was agreed that this system is not used to provide for telecommunicationsaccess lines, but for cell systems, and a license is needed. The Town of Highland Park and the City of University Park worked together toa license agreement with the assistance of Boyle & Lowry, L.L.P. The License Agreement provides for a payment of $200 per node per month, or 5% of gross receipts attributable to the City, whichever is greater. It isestimated that there will be 7nodes in the City, which would represent a payment of approximately $16,800per year. The License Agreement requires ExteNet to provide proof of insurance and to indemnify the Cityand its agents. The Town of Highland Park approved an identical version of this license agreement on September 8, 2014. RECOMMENDATION: Staff recommends approval. The Public Utilities Advisory Committee reviewed this agreement on July 14, 2014 and recommended approval. 1 LICENSE AGREEMENT THIS AGREEMENT (“License Agreement”) is made and entered into as of this _________day of ___________, 2014, (the “Effective Date”) by and between the Cityof UniversityPark, a municipal corporation and home-rule municipality of the State of Texas with its principal offices located at ______________University Park,TX 75____“Licensor” or the “City”) and ExteNet Systems, Inc.,a Delawarecorporation with its principal place of officeslocated at 3030 Warrenville Road, Lisle, Illinois 60532(“Licensee” or “Company”or “ExteNet”), each referred to as a “Party” or jointly as the “Parties”. RECITALS WHEREAS, ExteNet, is a certificated telecommunications provider licensed by the Texas Public Utility Commission to offer facilities-based and resale telecommunications services in the state, but does not currently offer retail telecommunications service in UniversityPark; and WHEREAS, the Cityowns and/or controls and regulates public street and alley rights- of-way and public utility easements within the boundaries of the Cityof UniversityPark; and WHEREAS, ExteNetdesires to install and operate a DASor small cell Network within the boundaries of the City, subject to the requirements of this License Agreement and pursuant to city ordinances and state and federal laws; and WHEREAS, the installation, maintenance, and operation of ExteNet’s DAS Network on publicrights-of-way will be performed in a manner consistent with all applicable City ordinances and any other applicable regulations; and WHEREAS, ExteNethas entered into one or more Pole Attachment Agreements with Oncoror Southwestern Bell d/b/a AT&T or other utility company with existing poles that serve the utility company’s network (hereafter also referred to, in the singular or plural, as “utility company” or “utility companies”)for the purpose of installing its small cell or DAS Network on utility companypoles erected on or about public rights-of-way; and WHEREAS, installation of ExteNet's DAS Network is in the public interest and will further the convenience of the business community and citizens of the Cityof UniversityPark; and WHEREAS, the Cityis willing to grant ExteNeta non-exclusive license to install, maintain, operate, repair and replace its DAS or small cell Network or micro or small cell installations on existing power or telephone poles within discrete segments of the rights-of-way, primarily alleys or rear easements, subject to the requirements of this License Agreement and the rights granted to Licensee herein, and pursuant to permits issued by the City’s Director of Engineering Services; WHEREAS, Licensee’s DASor small cellNetwork is subject to the Communications Act of 1934, as amended, including but not limited to Section 253 thereof, 47 U.S.C. § 253 2 (hereinafter referred to as the “Federal Telecommunications Laws”), which authorize the Cityto regulate its Rights-of-Way. WHEREAS, the License Agreement is consistent with Section 54.205 of the Public Utility Regulatory Act (Texas Utilities Code) which reserves “a municipality’s historical right to control and receive reasonable compensation for access to the municipality's public streets, alleys, or rights-of-way or to other public property”; and WHEREAS, the Cityhereby setsforth rights, duties and obligations of ExteNetin this License Agreement. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN SET FORTH, IT IS AGREED BY THE PARTIES AS FOLLOWS: ARTICLE 1 DEFINITIONS As used herein, the following terms shall have the following meanings. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular include the plural. The word “shall” is always mandatory and not merely permissive. 1.1 “Aerial Project” means the construction or installation of Network Facilities above ground in the public Rights-of-Way, by installing new wooden and metal utility poles to which Network Facilities are then attached, or by attaching Network Facilities to existing utility poles. 1.2 “AT&T” shall mean Southwestern Bell Telephone Company/b/a AT&T Texas, AT&T Kansas, AT&T Missouri, AT&T Arkansas and/or AT&T Oklahoma (AT&T)for the purpose of installing its DAS or small cell Network on Southwestern Bell Telephone Company, d/b/a AT&T Texas, AT&T Kansas, AT&T Missouri, AT&T Arkansas and/or AT&T Oklahoma (AT&T). 1.3“Cable Service” shall have the meaning set forth in Section 602 of the Communications Act of 1934, as amended, 47 U.S.C. § 522(6). 1.4“DAS Network” or “Distributed Antenna System Network”or “small cell network”means the Licensee’s network of spatially separated antenna nodes which, as to size, will not exceed three feet in height, two feet in width and one foot in depth, located in the Cityof University Park Public Rights-of-Way, on currently existing Oncor or other utility company distribution poles or poles installed by Oncor due to electric delivery system needs or other utility company pole installed for existing system needs and not installed for purposes of a DAS or small cell network,and as identified in Exhibit "A" and connected to a common source via fiber optic cable providing DAS wireless service within a geographic area, and shall not include any additional poles not owned by Oncor or other utility company and further shall not include any equipment 3 in excess of or not describedin Exhibit “A.” DAS Network does not mean a cellular tower as defined by city ordinance or federal or state law. “DAS” and “small cell” shall have the same meaning and use of one word or phrase shall include the other. 1.5“Director” means the Licensor’s Director of Engineering Services -Cityof UniversityPark. 1.6“Facility” shall mean each antenna site, space or equipment used by Licensee for the purpose of providing services. 1.7“Gross Revenues” means all revenues received by Licensee from the operation of the Network utilizing Oncor distribution poles or other existing utility company poles in the Rights- of-Way, including, but not limited to all rents, payments, fees and other amounts actually collected from any Third Party whose connections do not qualify as access lines under Texas PUC Substantive Rule 26.461 and received by Licensee and allocable to the period within the Term or any Renewal Term pursuant to any sublease agreement, together with any option fees collected from any actual or prospective Third Party for telecommunications services provided with respect to the DAS or small cell Network, but exclusive of: (a) anyreimbursements or pass-throughfrom or contributions by Third Party to Licensee: i. for utility charges, taxes and other pass-through expenses, or ii. in connection with work performed or equipment installed by Licensee; (b) construction management or supervision fees related to the installation of the Third Party’s equipment; (c) initial contributions of capital by Third Party to reimburse Licensee in whole or in part for the installation of the Network Facilities in the DAS Network; and (d) “upfront bonuses” or other incentive fees or remuneration paid by Third Parties to Licensee as an incentive or reward for securing multiple sites for Third Parties or which are not totally and directly related to the location of the Third Parties on the DAS or small cell Network. For the purpose of this definition, all revenues from telecommunications services that actually qualify as access lines under Texas PUC Substantive Rule 26.461 shall be excluded from Gross Revenues. The obligation to include revenues from wholesale or retail customers ends when their contracts expire or terminate. 1.8“Licensed Areas” means the portions of the Rights-of-Way in which Licensee is authorized to construct and install Network Facilities, as depicted and described on Exhibit “A” attached hereto and incorporated herein by reference for all purposes allowed by law and for which work a permit has been obtained by the Licensee from the City. 1.9“Network Facilities” means Licensee’s communications equipment and facilities necessary to serve the DAS or small cell Network, including fiber optic cables and copper wiring, currently 4 existing Oncor poles, guying, conduits, manholes, hand holes, pull boxes, control boxes, repeaters, power sources, fittings, access points, or other physical devises used to provide DAS service and similar furnishing and improvements located within, or above the Public Rights-of- Way, but not including any separate poles or antennas. 1.10 “Node”means a remote communications point of a distributed antenna system (DAS) or small cell system consisting of at least one antenna for the transmission and reception of a wireless service provider’s RF signals and one or more of the following attached to a utility pole, streetlight pole, or other support structure: equipment cabinets, amplifiers, receivers, battery back-up units, meters, power supply cabinets, disconnect switches, and/or related couplers, cables, wires, conduit, brackets, through bolts, and other equipment and hardware necessary for the operation of the DAS or small cell network and/orprovision of wireless or wireline telecommunications service. 1.11“Oncor” means the electric delivery company known asOncor or any successor electric delivery company. 1.12“Projects” means Aerial Projects and Underground Projects, collectively, asthose terms are defined in this License Agreement. 1.13“Rights-of-Way” or “Public Rights-of-Way” means the surface of, air space above, and space below, any public highways, roads, streets, alleys, sidewalks and utility easements, as the same may now or hereafter exist within the boundaries of the Cityand within the City’s jurisdiction now or hereafter-held by the Cityor over which the Cityexercises any rights of management control, but only as necessary to build the DASor small cellNetwork as identified in Exhibit “A,”and for purposes of this License are limited to alleys or easement in the rear of properties, with other locations only allowed with permission of the City Manager or designee. The term includes any Texas Department of Transportationright-of-way. 1.14“Small cell”means the Licensee’s network of spatially separated antenna nodes which, as to size, will not exceed three feet in height, two feet in width and one foot in depth, located in the Cityof UniversityPark Public Rights-of-Way, on currently existing Oncor or other utility company distribution poles or poles installed by Oncor due to electric delivery system needs or other utility company pole installed for existing system needs and not installed for purposes of a DAS or small cell network,and as identified in Exhibit "A" and connected to a common source via fiber optic cable providing DAS wireless service within a geographic area, and shall not include any additional poles not owned by Oncor or other utility company and further shall not include any equipment in excess of or not describedin Exhibit “A.” DAS or small cell Network does not mean a cellular tower as defined by city ordinance or federal or state law. “DAS” and “small cell” shall have the same meaning and use of one word or phrase shall include the other. 1.15“Texas PUC” means the Public Utility Commission of Texas. 5 1.16“Third Party” means any person or entity that is not a Party. 1.17“Underground Project” means the construction or installation of Network Facilities in, through, or below the surface of the Rights-of-Way. ARTICLE 2 GRANT OF LICENSE AND OTHER PERMISSION 2.1 The Cityhereby grants ExteNeta non-exclusive license to use and occupy that portion of the Rights-of-Way asshown in Exhibit “A,” limited to alleys and easements in the rear of properties, which for purposes of this Agreement are limited to alleys or other easement in the rear of properties or other right-of-way locations only with permission of the City Manager or designee, to locate, erect, install, construct, replace, reconstruct, repair, relocate, maintain and operate its DAS or small cell Network in, across or under the Rights-of-Way in Exhibit “A” including all necessary Network Facilities in connection with the DASor small cell Network only, subject to the laws of the State of Texas and the City’s charter and laws as they exist now or may be amended from time to time and subject to the conditions outlined in this License Agreement. Licensee shall installits Network Facilities consistent with the City’s Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, and as such ordinances and standards may hereafter be amended. ExteNet may use fewer locations than shown on Exhibit “A.” At the conclusion of construction, ExteNet shall provide “as-built” plans, in paper and digital format. 2.2 The Licensee’s right to use and occupy the Public Rights-of-Way shall not be exclusive and the Cityreserves the right to grant a similar use of same to itself or any person or entity at any time during the period of this License Agreement. 2.3 The Licensee shall not have the ability to expand its DAS Network or small cell network and Network Facilities beyond Rights-of-Way as depicted in Exhibit “A.” Any additions or expansions of the Licensee’s DASor small cell Network beyond that shown in Exhibit “A” shall require the approval of an amendment or supplement to this License Agreement by the City Council. This License Agreement authorizes ExteNetor its agents to construct, install, own and operate the DAS or small cell Network and Network Facilities in public Rights-of-Way, together with the right to enter the Licensed Areas to maintain, locate, upgrade, repair, move, reconstruct, relocate, remove and replace Network Facilities in accordance with the City's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, and as such ordinances and standards may hereafter be amended. 2.4 Consistent with the City's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, as amended, the Director shall assign priorities among competing private uses of the Public Right-of-Way according to the order completed permit applications are received. 2.5 In consideration for the rights granted under this License Agreement, Licensee waives all claims, demands, causes of action, and rights it may assert against the Cityincluding but not 6 limited to any loss, damage, or injury to any equipment or any loss or degradation of services not caused solely by the City. 2.6 Licensee shall use Network Facilities in the Licensed Areas solely for the purpose of operating the DAS or small cell Network including all services associated with and ancillary to a distributed antenna system, including RF Transport services, facilities-based backhaul services, lease of broadband communications services and Network Facilities to other communications providers and to enterprises, as well as transport for in-building wireless networks. 2.7 This License Agreement only concerns the right to use the right-of-way. This License does not grant any permission or authority to attach to poles owned by a private entity. Permission to attach to poles must be obtained from the entity that owns the pole. 2.8All uses of the Licensed Areas not described herein are prohibited, including Cable Service. Nothing in this License Agreement shall be deemed to prohibit Licensee from using Network Facilities to offer Cable Service if Licensee first obtains a separate State-Issued Certificate of Franchise Authority from the Texas PUC and a cable system franchise from Licensor, nor shall Licensee be prohibited fromoffering wholesale communications connections and services to Third Party operators of Cable Service licensed by and through the Texas PUC and the City. 2.9 In case of conflict between this licensee and the Right-of-Way Management ordinance, the Right-of-Way Management ordinance shall prevail. 2.10 ExteNet’s DAS Network or Distributed Antenna System Network or small cell network will not exceed, one facility or node per pole, which shall not be greater thanthree feet in height, two feet in width and one foot in depth, located in the Cityof UniversityPark Public Rights-of-Way, on currently existing Oncor or other utility company distribution poles or poles installed by Oncor due to electric delivery needsor other utility company pole installed for existing system needs and not installed for purposes of a DAS or small cell network, and as identified in Exhibit "A" and connected to a common source via fiber optic cable providing DAS wireless service within a geographic area, and shall not include any additional poles not owned by Oncor or other utility company and further shall not include any equipment in excess of or not described in Exhibit “A.” DAS Network does not mean a cellular tower as defined by city ordinance or federal or state law. Each facility or node shall display the name of the company owning the node and an identification number. All work shall be coordinated with the City’s Public Works Department. 2.11 ExteNet’s DAS or small cell Network or equipment shall be installed in a safe manner, meeting all Codes and in a manner that will not interfere with the use of the streets or sidewalk by the travelling public. Each node or facility shall be at least thirteen feet (13’) above street or alley grade. If that height is not possible, ExteNet shall either not install the node or shallask the City Public Works 7 Director for an exception and place the node at the location approved by the Public Works Director. 2.12If new conduit is installed by ExteNet, ExteNetagrees to reserve and make available space or innerductof at least two inches (2”) for City use. ARTICLE 3 TERM 3.1 Initial Term. The initial term of this License Agreement shall commence upon execution by both parties and, unless earlier terminated pursuant to any provision hereof, shall expire ten (10) years after the Effective Date, on December 31, 2024. 3.2 Renewal Term(s). Upon application by the Licensee, this License Agreement may be renewed for up to three additional successive five (5) year terms by the Citypursuant to the procedures established in this Section, and in accordance with the applicable laws,regulations, and the rules of the State of Texas. a. At least six (6) months prior to the expiration of the License Agreement, the Licensee shall inform the CityManager in writing of its intent to seek renewal of the License Agreement. During this timeperiod, the parties may re-negotiate terms of the License Agreement. b. Upon determination by the CityManager that the Licensee’s performance is satisfactory, including payment of all fees, each renewal, subject to the agreed re-negotiation of compensation and other terms, may be granted for one period of five (5) years. c. Cityshall not unreasonably withhold any Renewal Term of the License Agreement upon such terms and conditions as the Parties may agree provided that at the time Licensee requests renewal Licensee is in substantial compliance with all terms set forth in this License Agreement, including the payment of allfees. ARTICLE 4 HOLDING OVER 4.1 In any circumstance not described in Article 3 whereby Licensee remains in occupancy of the Rights-of-Way after expiration of this License Agreement, as extended, such holding over shall not be deemed to operate as a renewal or extension of this License Agreement, but shall only create a right of use from month to month (the sum of which months shall be “Hold Over Period”) provided that Licensee continues to make all required payments and conforms to all other requirements of this License Agreementand the Right-of-Way Management ordinance and all other applicable law, and provided further thatthis License Agreement may be terminated at any time during the Hold Over Period by Licensor or Licensee upon sixty (60) days written notice to the other. 8 ARTICLE 5 EARLY TERMINATION 5.1 Licensee or Licensor shall have the right to terminate this License Agreement early, without any further right or obligation to the other party by giving the other party ninety (90) days advance written notice and by removing the DAS or shall cell Network and all Network Facilities from public Rights-of-Way within ninety (90) days of the effective date of the notice. ARTICLE 6 ABANDONMENT OF NETWORK FACILITIES 6.1 Whenever Licensee intends to abandon any of its Network Facilities within a Right-of-Way, it shall submit to the CityManagerand designeean application describing the Network Facilities it proposes to be abandoned and the date of the proposed abandonment. Citymay require Licensee, at Licensee’s expense: (a) to remove the Network Facilities from the Public Right-of- Way; or (b) to modify the Network Facilities in order to protect the public health and safety or otherwise serve the public interest. If the Licensee fails to respond to the City’s request to remove or modify the Network Facilities within sixty (60) days, the Network Facilities proposed to be abandoned shall upon the sole election and determination of the Citybe considered the property of the Cityand subject to the City’s use, modification, demolition, removal or conveyance without any further compensation or benefit therefor being provided to Licensee. If Citydetermines that any Network Facilities so abandoned must be demolished, modifiedand/or removed to protect the public health and safety or otherwise serve the public interest then Licensee shall be responsible for and liable to the Cityfor any and all costs associated with such demolition, modification and/or removal. 6.2 Any fiberoptic cable abandoned by Licensee shall be considered the property of the City. 6.3 Notwithstanding the foregoing, Licensee shall have no obligation to remove any pole or conduit that is owned by a Third Party provided that said pole or conduit is properly permitted, constructed and installed and that such Third Party owner is then currently licensed by and through the Texas PUC and the City. 6.4 If Licensee has been granted permission to and has installed a new utility pole pursuant to an Aerial Project under this License Agreement and a Third Party has acquired rights to attach its facilities to that pole, Licensee shall notify Licensor in writing of its intention to abandon such pole in place, and Licensor shall at no cost or expense to Licensor havethe right to take ownership of such pole in its own name or require that such pole be transferred to a Third Party having attached facilities to it provided that said pole is properly permitted, constructed and installed and that such Third Party transferee is licensed by and through the Texas PUC and the City. 6.5 In lieu of removing conduits installed by Licensor pursuant to an Underground Project, Licensee may elect to transfer ownership of the conduits to a Third Party having an appropriate license from the Texas PUC and the Cityto own such facilities in public Rights-of-Way, or may 9 abandon such conduits in place and transfer ownership to Licensor, but only with approval of the Licensor. 6.6 If ExteNetabandons any Network Facilities in place pursuant to this section, Licensee shall remain responsible for any such pole or conduit, save and except to the extent only that Licensee transfers such pole or conduit to a Third Party. Notwithstanding the provisions in section 6.5, at no time and under no circumstances shall Citybe deemed the owner or responsible party for any property abandoned in place by ExteNetsave and except only properly installed fiber optic cable belonging to the City. ARTICLE 7 FEES AND PAYMENTS 7.1 To compensate the Cityfor the use and occupancy of the Public Rights-of-Way or Oncor Polesor other utility poles, Licensee shall be required to pay the following fees: (a)Fees. (1)Licensee shall pay a minimum monthly fee of two hundred dollars ($200.00) per each facilitybuilt as shown on the “as built” plans. If “as built” plans are not provided, the compensation will be based on the facilities as shown in Exhibit “A” including any facilities which may be added upon proper amendment of this License. The minimum monthlyamount may be renegotiated each five (5) years. Licensee shall submit to the City a list of the facilities and the locations of the facilities when the system is built out and by December 31, 2015 and each subsequent year until the system is completely built out. Licensee shall update the build out list within sixty (60) days of any changes. (2)The Licensee shall pay the Cityfor the use of Public Rights-of-Way fees totaling five percent (5%) of Gross Revenues from the DAS or small cell Network. The percentage of Gross Revenuesfees will be paid during the Initial Term any subsequent Renewal Term(s) of this License Agreement and any Hold Over Period on a monthly basis as prescribed under subsection (c). If the five percent (5%) of gross revenues fee exceeds the minimum monthly payment, the minimum monthly payment shall not be due for that quarter. (b)Fiber Strands. In addition to the payments, Licensee shall make an in-kind contribution to the City of four (4) strandsof the fiber installed in the Telecommunications Network (“Licensed Fiber”). In the event that such consideration is declared illegal by any court, legislature or governmental agency of competent jurisdiction, Licensee and the Cityshall negotiate for mutually acceptable alternate consideration. The connection of electronic equipment to the Licensed Fiber shall be the responsibility of the Cityand will be made at the sole cost and expense of the City. The costs of construction, maintenance, repairand operation of the City’s network, facilities and equipment not comprising a part of the Telecommunication Network shall be the sole responsibility of the City. The Citywill enjoy the use of the Licensed Fiber under the terms and conditions of an indefeasible right of use (IRU) agreement to be negotiated by the parties within thirty (30) business days of CityCouncil approval of this License Agreement, which will be included as Exhibit “B” to this License Agreement. 10 (c) Remittance of Fees. Each monthly fee payment will be due on or before the first day of each month. Each payment shall be accompanied by a statement, substantially in the form provided in Exhibit “C,” which mathematically verifies the accuracy of the payment. Exhibit “B” is a financial report which will include Gross Revenues received during the applicable reporting period, a calculation of five percent (5%) of Gross Revenues, with property taxes excluded from such Gross Revenues, and an explanation that the annual payment is made pursuant to this License Agreement. The financial report will be certified by an officer of the Licensee and will be accompanied by supporting documents to verify the accuracy of the reported information. The last payment under this License Agreement shall be paid within thirty (30) calendar days following termination or expiration of the License Agreement including any renewal term(s) and any Hold Over Period. 7.2 Annexation. Subsequent to the Effective Date of this License Agreement, should the City exercise the right to annex any area in which the Licensee has installed a portion of its DAS Network, the Licensee shall be responsible for paying additional fees under this License Agreement associated with DAS Network that previously was found outside the City’s geographic boundaries, but following annexationwill lie within the new Cityboundaries. The effective date of the additional payment will be consistent with the annual payment process as defined in Section 7.1, above. The additional payment will be prorated by the number of months during the previous year following annexation. 7.3 Permit Fees. In addition to the aforementioned fees, the Licensee shall be required to obtain construction permits from the Director in order to install, construct, and maintain the DAS Network and Network Facilities in thePublic Rights-of-Way, including paying the appropriate permitting fees. 7.4 Late Fees. Fees are deemed paid only when Licensor actually receives payment. Any Fee payment not timely paid shall accrue simple interest at the rate of one-and-one-half percent (1½ %) per month or the legal rate from the date the amount first came due until paid. ARTICLE 8 RIGHT TO AUDIT 8.1 The City, or its designees, shall have the right to audit, examine or inspect, at the City’s election and at City’s expense, all of the Licensee’s records at any and all Licensee’s locations relating to the DAS Network (“Licensee’s Records”) during the term of the License Agreement and any renewal term or Hold Over Period and retention period herein. The audit, examination or inspection may be performed by a Citydesignee, which may include its internal auditors or an outside representative engaged by the City. The Licensee agrees to retain the Licensee’s Records for a minimum of four (4) years following termination of the License Agreement, unless there is an ongoing dispute under the License Agreement, then, such retention period shall extend until final resolution of the dispute. 8.2 The Licensee’s Records shall be made available at the Licensee’s designated offices within thirty (30) calendar days of the City’s request and shall include any and all information, materials and digital data of every kind and character generated in connection with or related to the 11 telecommunications network which is the subject of this License Agreement or other information generated as a result of this License Agreement. Examples of Licensee’s Records include but are not limited to billings, billing reports, remittance records, books, trial balances, subsidiary ledgers, general ledgers, audited financial statements, invoices, receipts, customer contracts and other documents that are necessary to substantiate Gross Revenues. The Licensee bears the cost of producing, but not reproducing any and all requested business records. 8.3 The Cityagrees that it will exercise the right to audit, examine or inspect only during regular business hours. The Licensee agrees to allow the City’s designee access to all of the Licensee’s Records deemed necessary by Cityor its designee(s), to perform such audit, inspection or examination. The Licensee also agrees to provide adequate and appropriate work space necessary to Cityor its designees to conduct such audits, inspections or examinations if required. 8.4 If an audit inspection or examination discloses that Licensee’s remittances to the Cityas previously reported for the period audited were underpaid, Licensee shall pay within thirty (30) days to the Citythe underpaid amount for the audited period together with interest at the Interest Rate of five percent (5%) from the date(s) such amount was originally due. Further, if such understatement was in excess of five percent (5%) of Licensee’s actual remittances to the City, the reasonable actual cost of the City’s audit shall be reimbursed to the Cityby the Licensee. 8.5 Failure by the Licenseeto comply with the provisions of this audit clause may result in termination by the Cityof all rights provided under this License Agreement to the Licensee. In the event of termination, the Licensee is responsible for the cost of termination and agrees to hold the Cityharmless for any and all claims resulting from termination due to the Licensee’s failure to comply with the audit clause. ARTICLE 9 LIMITED RIGHTS/SUBORDINATE USE 9.1 This License Agreement is intended to convey limited rights and interests as set forth herein only as to those alleys and locationsspecifically identified in the attached Exhibit “A” in which the Cityhas an actual interest. It is not a warranty of title or interest in any Rights-of-Way; and it does not confer rights otherthan as expressly provided herein, or as provided in the City’s charter, ordinances, enabling legislation or permits. This License Agreement does not deprive the Cityof any powers, rights or privileges it now has, or may later acquire in the future, to use, perform work on or to regulate the use of and to control public Rights-of-Way. 9.2 ExteNet’s use of the public Rights-of-Way is subject to theexisting uses andprior and continuing right of the Cityto use the specified Rights-of-Way for municipal purposes. ARTICLE 10 BREACH AND DEFAULT 10.1 Defaults Specific to Licensee. Licensee shall comply with the terms and provisions of this License Agreement and shall cause all persons using the Licensed Areas under the authority granted Licensee by this License Agreement to do the same. Licensee’sfailure to do so shall be a 12 material breach by Licensee of this License Agreement. The Licensee shall not be excused from complying with any of the terms and conditions of this License Agreement by the previous failure of the Licensor to insist upon or seek compliance with such terms and conditions. This entire License Agreement is made upon the condition that each and every one of the following events shall be deemed an “Event of Default” by Licensee of Licensee’s material obligations under this License Agreement: a. Licensee is in arrears in the payment of any Fee and does not cure such arrearage within thirty (30) days after receiving written notice from Licensor. b. Licensee fails to maintain any insurance required by this License Agreement. Notwithstanding the preceding sentence, such failure shall not be a material breach if within ten (10) days after notice from Licensor, Licensee provides to Licensor the required insurance and the required evidence thereof. Such insurance must apply retroactively so that there is no gap in the insurance coverage required by this License Agreement. c. Licensee is the subject of a voluntary or involuntary bankruptcy, receivership, insolvency or similar proceeding or an assignment is made of any of Licensee’s property for the benefit of creditors. d. Licensee fails to obtain or maintain any licenses, permits, or other governmental approvals pertaining to the use of the Rights-of-Way, or any bond required under this License Agreement or timely pay any taxes pertaining to the Rights-of-Way and does not cure such failure within thirty (30) days. 10.2 Default by Licensor or Licensee. This entire License Agreement is made upon the condition that either Party shall be deemed to have committed an Event of Default if either of them shall fail to or neglect to timely and completely do or perform or observe any provisions contained herein and such failure or neglect shall continue for a period of thirty (30) days after the Party in default has been notified in writing of such failure or neglect. The defaulting Party will take immediate corrective action to eliminate any such conditions(s) and will confirm in writing to the non-defaulting Party within thirty (30) days following receipt of written notice that the cited condition(s) has ceased or been corrected. Any condition which cannot be corrected within such thirty (30) day period will not be considered an Event of Default so long as thedefaulting Party diligently proceeds to correct such condition upon receipt of notice from the non-defaulting Party. 10.3 Remedies. Upon the occurrence of any Event of Default or at any time thereafter, Licensor or Licensee may, at its option and from time to time, exercise any or all or any combination of the following cumulative remedies in any order and repetitively: a. Terminate this License Agreement; b. Assert, exercise or otherwise pursue any and all rights or remedies, legal or equitable, against the Party in default; or 13 c. In the case of Licensor, unilaterally and without Licensee’s or any other person’s consent or approval, draw upon or obtain the value of any bond, in an amount sufficient to cure Licensee’s Event of Default. 10.4 ForceMajeure. Notwithstanding any other provision of this License Agreement, neither Party shall not be liable for delay in the performance of, or failure to perform, any of its obligations hereunder if such delay or failure is due in whole or substantial partto any fire, flood, accident, explosion, strike, labor disturbance, war, insurrection, sabotage, terrorist act, condemnation, prohibition or expropriation by any government or governmental agency, delays attributable to encountering hazardous materials orhistorical relics, unavailability or shortage of materials, or Acts of God, provided, however, that force majeure shall not excuse any failure, delay or refusal in making any payment when due. ARTICLE 11 NO ADVERSE IMPACT UPON OTHER AUTHORIZED USERS. 11.1 Licensee recognizes that its use of the Public Right-of-Way is non-exclusive with respect to utilities and other entities occupying such Right-of-Way, and that the Cityspecifically reserves the right to install, and permit others to install utility facilities in the Rights-of-Way. In permitting such work to be done by others, the Cityshall not be liable to Licensee for any damage caused by those persons or entities. Licensee shall adhere to the rules regarding the respective rights of such utilitiesand other entities as established by state and federal law, the UniversityPark Code and Charter, including all International Codes,as adopted, and by commonly accepted industry codes regarding engineering, safety, and construction of right-of- way facilities. 11.2 Licensee shall be required to relocate facilities at its own cost if required to do so by City due to a public works or other governmental use of the right-of-way. 11.3Except as permitted by applicable law or this License Agreement, ExteNetshall not damage, remove or impair the use of any public Rights-of-Way or any other authorized facilities therein, including without limitation, streets, sidewalks, sanitary sewers, storm drains, water mains, gas mains, poles, overhead or underground wires or conduits without the prior written approval of the Cityand of any other owner(s) of the affected property. 11.4Licensee may not impede, obstruct or otherwise interfere with the installation, existence and operation of any other facility in the public Rights-of-Way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical infrastructure, cable television and telecommunication wires, public safety and Citynetworks, and other telecommunications, utility, or municipal property unless the owner(s) of the affected property expressly authorize Licensee’s actions in writingor Licensee can show City that such facilities have been abandoned. 11.5If the Cityrequires Licensee to adapt or conform its Network Facilities, or in any way or manner to alter, relocate or change its property to enable any other corporation or person, except the City, to use, or to use with greater convenience, any Right-of-Way, Licensee shall not be required to make any such changes until such other corporation or person shall have undertaken, 14 with solvent bond, to reimburse Licensee for any loss and expense which will be caused by, or arise out of such removal, change, adaptation, alteration, conformance or relocation of Licensee’s Facilities; provided, however, that the Cityshall never be liable for such reimbursement. 11.6Upon request, the Licensee will remove or raise or lower its Network Facilities to permit the moving of houses or other bulky structures. The reasonable and necessary expense of such temporary rearrangements shall be paid by the party or parties requesting them and the Licensee may require payment in advance. The Licensee shall be given not less than forty-eight(48) hours advance notice to arrange for such temporary rearrangements. ARTICLE 12 SUPERVISION BY CITYOFLOCATION OF POLES AND CONDUITS 12.1 In the event Licensee finds it necessary to install poles on Public Rights-of-Way in order to complete its DAS Network, such poles shall be of sound material and reasonably straight, and shall be set so that they will not interfere with the flow of water in any gutter or drain, and so that they will not unduly interfere with ordinary travel on the streets or sidewalks. The Cityshall have the option, but not the obligation, to exercise any and all lawful, reasonable and proper control related to the location and route of all poles, stubs, guys, anchors, conduits, fiber and cables placed and constructed by the Licensee in the installation, construction and maintenance of its DAS Network in the City. ARTICLE 13 CONSTRUCTION AND RESTORATION STANDARDS 13.1 Prior to the performance of the initial construction and installation of the DASor small cell Network, Licensee shall submit engineering plans to the Director for review and approval. The construction, installation, maintenance, repair and removal of Network Facilities shall be accomplished without cost or expense to the Cityand shall be in accordance with theCity's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, as amended, and shall be accomplished in such manner as not to endanger persons or property or unreasonably obstruct access to, travel upon or other use of the specified public Rights-of-Way. 13.2 Prior to beginning any excavation or boring project on Public Rights-of-Way, Licensee shall comply with the provisions of the Texas One Call utility locator service at least forty-eight (48)hours in advance. Licensee has the responsibility to protect and support the various utility facilities of other providers during construction. 13.3 Licensee shall, at its own cost, after the installation, removal or relocation of its Network Facilities, repair and return the public Right-of-Way and any nearby or adjacent private property, if any, in which the Network Facilities are or have been located to a safe and satisfactory condition in accordance with the City's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual, as amended. 15 13.4 If Licensee installs an Underground Project, Licensee shall maintain membership, for the life of the Network Facilities, in the Texas One Call utility locator service for subsurface installations. Licensee shall field mark, at its sole expense, the locations of its underground Network Facilities in accordance with the recommendation of the Texas One Call utility locator service and the requirements of all applicable laws. 13.5 ExteNetshall be responsible for any damage to Citystreets, existing utilities, curbs and sidewalks due to its installation, maintenance, repair or removal of its Network Facilities in the Public Right-of-Way, and shall repair, replace and restore in kind any such damage at its sole cost and expense in accordance with all applicable Cityrequirements. 13.6 The Cityshall have the authority at any time to order and require Licensee to remove and abate any Network Facilities that are in violation of the UniversityPark Code. In case Licensee, after receipt of written notice and a reasonable opportunity to cure, fails or refuses to comply, the Cityshall have the authority to remove the same at the expense of Licensee, all without compensation or liability for damages to Licensee. ARTICLE 14 AS-BUILT MAPS AND RECORDS 14.1 ExteNetshall maintain accurate maps and other appropriate records of its Network Facilities as they are actually constructed in the Rights-of-Way, including, for Underground Project, including the use of Auto CAD/GIS digital format. ExteNet will provide the maps to the City upon completion of construction. ARTICLE 15 REMOVAL AND RELOCATION OF NETWORK FACILITIES 15.1 If ExteNetdesires to remove or relocate its Network Facilities in the Rights-of-Way, it shall give the Citynot less than ten (10) business days prior written notice of its intent to do so. Before proceeding with removal or relocation work, ExteNetshall obtain such additional permits as may be required by the Cityand conform with all requirements of this License Agreement and the City's Rights-of-Way Construction Ordinance and the City’s Engineering Design Criteria and Construction Standards Manual. 15.2 Licensee shall remove or relocate, without cost or expense to the City, the Network Facilities it installs under this License Agreement if and when made necessary by (i) the construction, repair, relocation, or maintenance of a public improvement project in, on, under or about the Public Rights-of-Wayor public utility easement; (ii) to protect or preserve the public health or safety; or (iii) where the Cityaffords Licensee a technically and financially reasonable alternative location for installation of Licensee’s Network Facilities. The Citywill notify Licensee as soon as reasonably possible after the requirement to remove or relocate Network Facilities becomes known, and will to the extent reasonably possible assist Licensee in finding substitute Rights-of-Way. Said removal or relocation shall be completed within ninety (90) days following written notification orsuch shorter period as the Citymay reasonably direct in the case 16 of an emergency. If Licensee fails to remove or relocate its Network Facilities within such period, the Citymay cause the same to be done at the sole expense of licensee, and without liability to the City. The Citywill to the extent reasonably possible cooperate with Licensee to relocate its Network Facilities at minimal disruption to its services. Nothing in this section shall be construed as preventing the Licensee from recovering the cost of removal or relocation from a Third Party that makes the request for removal or relocation of utilities. ARTICLE 16 INDEMNIFICATION 16.1 ExteNetshall exercise due care to avoid any action that may cause damage to property of theCityor property of any other person or entity whose facilities occupy, abut or adjoin the Public Rights-of-Way. 16.2 LICENSEE HEREBY COVENANTS, REPRESENTS AND WARRANTS TO RELEASE THE CITY, AND THE CITY’S ELECTED OFFICIALS, THE RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AND REPRESENTATIVES OF THE CITY AND ITS/THEIR SUCCESSORS, IN BOTH THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, AND THE AFFLIATES OF AND PERSONS AND ENTITIES RELATED TO ALL OF THE FOREGOING, INDIVIDUALLY AND COLLECTIVELY, (HEREINAFTER COLLECTIVELY REFERRED TO AS “CITY-RELATED PARTIES”) FROM, AND SHALL INDEMNIFY, DEFEND AND HOLD THE CITY RELATED PARTIES HARMLESS AGAINST ALL ALLEGATIONS, CLAIMS (INCLUDING WITHOUT LIMITATION CLAIMS OF PERSONAL INJURY, ENVIRONMENTAL INJURY, BODILY INJURY, SICKNESS, DISEASE, DEATH, PROPERTY DAMAGE, CONSEQUENTIAL DAMAGES, DESTRUCTION, OR OTHER IMPAIRMENT), DEMANDS, LEGAL ACTIONS, EQUITABLE ACTIONS, COSTS (INCLUDING ALL COURT COSTS, REASONABLE ATTORNEYS’ FEES, EXPERTS’ FEES OR OTHER COSTS INCURRED IN CONNECTION WITH INVESTIGATING, PREPARING, PROSECUTING OR SETTLING ANY LEGAL OR ALTERNATIVE DISPUTE RESOLUTION ACTION OR PROCEEDING), EXPENSES, LIABILITIES, ASSESSMENTS, TAXES, COSTS, FEES, LIENS, PENALTIES, FINES, LOSSES, DAMAGES, JUDGMENTS, OR PENALTIES OF WHATEVER NATURE OR DESCRIPTION, WHETHER KNOWN OR UNKNOWN (COLLECTIVELY “LIABILITIES”) INCURRED BY ANY CITY-RELATED PARTY, WHICH LIABILITIES, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, AROSE FROM OR MAY IN THE FUTURE ARISE FROM, OR ARE ALLEGED TO HAVE ARISENFROM, ANY OF THE FOLLOWING: 17 (i) LICENSEE’S EXERCISE OF ITS RIGHTS UNDER THE LICENSE; (ii) LICENSEE'S ACTIVITIES UNDER THE LICENSE, INCLUDING ANY DELIBERATE, INTENTIONAL, RECKLESS AND/OR NEGLIGENT ACT(S) OR OMISSION(S) OR WILLFUL MISCONDUCT OF LICENSEE, ANY AGENT, OFFICER, DIRECTOR, REPRESENTATIVE, EMPLOYEE, CONSULTANT OR SUBCONTRACTOR OF LICENSEE, AND THEIR RESPECTIVE OFFICERS, AGENTS EMPLOYEES, DIRECTORS AND REPRESENTATIVES WHILE IN THE EXERCISE OF THE RIGHTS OR PERFORMANCE OF THE DUTIES UNDER THE LICENSE; (iii) LICENSEE’S USE OF THE RIGHTS-OF-WAY OR THE RIGHTS GRANTED TO LICENSEE WITH RESPECT TO THE RIGHTS-OF- WAY; (iv) LICENSEE’S USE OF THE CITY’S FIBER OPTICSYSTEM; (v)LICENSEE’S OPERATIONS ON ANY LAND OR IN ANY STRUCTURE OWNED BY THE CITY; (vi) THE INSTALLATION, USE OR PRESENCE OF LICENSEE’S EQUIPMENT ON ANY LAND OR IN ANY STRUCTURE OWNED BY THE CITY; OR (vii) ANY CLAIM MADE OR LOSS INCURRED BY LICENSEE’S CUSTOMERS WHICH ARISES FROM, OR IS ALLEGED TO HAVE ARISEN FROM, ANY INTERRUPTION OR QUALITY OF THE SERVICES DELIVERED BY LICENSEE BY MEANS OF THE FIBER OPTIC, DAS OR SMALL CELL SYSTEM OR ANY OTHER SYSTEM FOR WHICH THE LICENSEE IS USING THE RIGHT-OF- WAY. FOR PURPOSES OF THIS INDEMNITY AND RELEASE, THE TERM “ARISE FROM” MEANS OCCURS IN CONNECTION WITH OR AS A RESULT OF OR IS CAUSED BY. 18 THE INDEMNITIES AND RELEASE IN THIS SECTION WILL APPLY EVEN IF THE DAMAGE OR LOSS IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR STRICT LIABILITY OF A CITY-RELATED PARTY. THIS SECTION 16.2 SURVIVES THE TERMINATION OF THIS LICENSE. 16.3 LICENSEE SHALL BE LIABLE TO THE CITY FOR DAMAGES SUSTAINED BY THE CITY AND RESULTING FROM THE ACTS AND OMISSIONS OF ANY CONTRACTOR, SUBCONTRACTOR, OR ANY PARTY INVOLVED DIRECTLY OR INDIRECTLY IN THE CONSTRUCTION AND INSTALLATION OF LICENSEE’S DAS NETWORK AND UNDER LICENSEE’S DIRECT CONTROL. ANY ACT OR OMISSION OF SUCH PARTY SHALL BE CONSIDERED AN ACT OR OMISSION OF THE LICENSEE. THIS SECTION 16.3 SURVIVES THE TERMINATION OF THIS LICENSE. 16.4Promptly upon learning of any claim for which it seeks indemnification under this License Agreement, Licensor shall give written notice to ExteNetof the claim. ExteNet, as the indemnifying Party, shall bear the cost of and shall have the right to controlthe defense, the right to select counsel of its own choice, and the right to settle the claim. Licensor shall cooperate and assist ExteNetin investigating and defending against the claim. If ExteNetdoes not provide the indemnity and defense, or if ExteNetdoes not make diligent effort to settle the claim or provide for a defense, Licensor may assume control of the matter with counsel of its own choosing and either make a reasonable settlement of the claim or undertake a defense, all at Licensee’s sole cost and expense. 16.5Neither party will be liable to the other for any special, consequential or other indirect damages arising under this License Agreement. ARTICLE17 INSURANCE 17.1 Not later than the Effective Date of this License Agreement, and at all times thereafter when Licensee is occupying or using the Licensed Areas in any way, Licensee shall obtain and cause to be in full force and effect the following insurance: a. Commercial General Liability Insurance. This insurance, to be on the comprehensive form, shall protect the Licensee against any and all claims arising from injuries to members of 19 the public or damage to property or others arising out of any act or omission of the Licensee, its agents, employees, or subcontractors, in connection with the Licensee’s work in and about the Licensed Areas in connection with this License Agreement. In addition, this general liability insurance policy shall specifically insure the contractual liability of the Licensee assumed under the provisions for indemnifying the City. More particularly, Licensee shall provide Commercial General Liability Insurance as follows: Bodily Injury/Property Damage: $1,000,000.00 per occurrence $1,000,000.00 aggregate To include: Premises/Operations Products/Completed Operations Independent Contractors Contractual Liability Personal & Advertising Injury Broad Form Property Damage Coverage must be written on an occurrence form. The General Aggregate shall apply on a per project basis. b. Business Automobile Liability Insurance. This insurance, to be on the comprehensive form, shall protect the Licensee against any and all claims or injuries to members of the public and damage to property of others arising from the use of automobiles and trucks in connection with the Licensee’s work in and about the Licensed Areas, and shall cover operation on or off the site of such work of all motor vehicles licensed for highway use, whether they are owned, non- owned, or hired by the Licensee. The policy shall include an "all states" endorsement. Liability limits for automobile liability insurance coverage shall be: Minimum Combined Bodily Injury and Property Damage Limit: $1,000,000 per occurrence; or Minimum Bodily Injury Limit: $500,000.00 per person, Minimum Property Damage: $500,000.00 per occurrence; and Uninsured Motorist: Statutory Limits. c. Workers’ Compensation and Employer's Liability Insurance. This insurance shall protect the Licensee against any and all claims brought under the Workers’ Compensation law for the State of Texas. It shall also protect the Licensee against claims for injury to, disease or death of workmen engaged in work in and about the Licensed Areas under this License Agreement which, for any reason, may not fall within the provisions of the Workmen's Compensation Act. Liability limits for this insurance shall be: Coverage A Statutory Coverage Coverage B Employer’s Liability with minimum limits for bodily injury: (a) by accident $1,000,000.00 each accident (b) by disease, $1,000,000 per employee with a per policy aggregate of $1,000,000.00. d. Umbrella or Excess Liability Insurance. The Licensee shall effect and maintain an umbrella liability policy as follows: $5,000,000.00 combined single limit per occurrence $5,000,000.00 aggregate. 17.2 Licensee shall, at its own expense, procure and pay for and maintain throughout the period of this License Agreement the insurance coverage described herein-above written by companies 20 approved by the State of Texas and acceptable to the Cityof UniversityPark including by way of example and not limitation, commercial general liability, automobile liability, umbrella or excess liability and workers' compensation in forms and amounts satisfactory to Citywithin ten (10) days after execution of this License Agreement. The Cityreserves the right to review the insurance requirements and to reasonably adjust insurance and limits when the Citydetermines that changes in statutory law, court decisions, or the claims history of the industry or the Licensee require adjustment of the coverage. 17.3 All policies except workers’ compensation must name the Cityand its officers, employees, board members, and elected representatives as additional insured’s. A waiver of subrogation in favor of the Cityand its officials, employees, and officers shall be contained in the Workers’ Compensation insurance policy. Licensee shall cause coverage for additional insured’s to be incorporated into each insurance policy by endorsement with respect to claims arising out of Licensee’s operations, activities and obligations under this License Agreement. 17.4 All policies shall require that the insurer will provide Licensor with at least thirty (30) days prior notice of any cancellation or non-renewal. 17.5 Licensee will provide Licensor with proof of required insurance. Such proof must be legally binding andmust evidence that the policy described by the certificate is in full force and effect and that the policy satisfies each requirement of this License Agreement applicable to the policy. For purposes of this section, insurance requirements may be metthrough self-insurance, provided; however, that any self-insurance meets all the requirements for the insurancecoverage as required herein. However, for the Cityto accept self-insurance,the Licensee must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the City, based on financial information requested by and furnished by the City. 17.6 Licensee shall immediately advise the CityAttorney’s Office of actual or potential litigation that may develop and affect an existing carrier's obligation to defend and indemnify. 17.7 This Article creates no right of recovery of an insurer against the City. The required insurance policies shall protect the Licensee and the City. The insurance shall be primary coverage for losses covered by the policies. ARTICLE 18 PERFORMANCE BOND 18.1 Licensee shall obtain and maintain at its sole cost a corporate surety bond securing performance of its obligations and guaranteeing faithful adherence to the requirements of the License Agreementfor the protection of the City. The surety bond must be: a. in an amount not less than One hundred Thousand Dollars ($100,000.00); b. issued by a surety company licensed to do business in the State of Texas and reasonably acceptable to the City; and 21 c. reasonably acceptable to the CityAttorney. 18.2 The Licensee shall obtain this bond no later than the thirtieth (30th) day after the effective date of this License Agreement and prior to construction or installation of any Network Facilities in the Rights-of-Way. 18.3 The rights reserved to the Cityunder the bond are in addition to all other rights. No action, proceeding or exercise of a right regarding the bond shall affect the City’s rights to demand full and faithful performance under this License Agreement or limit the Licensee’s liability for damages. ARTICLE 19 TREE TRIMMING 19.1 The right, license, privilege and permission is hereby granted to the Licensee, its contractors and agents, to trim trees upon and overhanging the streets, avenues, highways, alleys, sidewalks and public places of the Cityso as to prevent the branches of such trees from coming in contact with the aerial wires, fiber or cables of the Licensee, and when so directed by the City, said trimming shall be done under the supervision and direction of the Cityor of any Cityofficial to whom said duties have been or may be delegated. ARTICLE 20 EMERGENCY NOTIFICATION TO EXTENET 20.1 The ExteNetCall Center shall be available to Citystaff 24 hours-per-day, 7 days-per-week, regarding problems or complaints resulting from the Network Facilities. TheDirector may contact Licensee by telephone at a number which shall be provided by Licensee in conjunction with all permit applications. ARTICLE 21 NOTICES 21.1 All notices permitted or required hereunder shall be in writing and shall be transmitted via certified United States mail, return receipt requested, or by private delivery service and shall be addressed as follows or to such different addresses as the Parties may from time to time designate by giving written notice to the other party of such change: If to the City, to: Copy to: Cityof UniversityPark Attn: CityManager 4300 MacArthur Avenue, Suite 160 University Park, TX 75209 Telephone 214-559-9444 22 If to ExteNet, to Copy to: ExteNet Systems, Inc.ExteNet Systems, Inc. Attn: CFO Attn: General Counsel 3030 WarrenvilleRoad, Suite 340 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 Lisle, Illinois 60532 Telephone: 630-505-3800 Telephone: 630-505-3800 Notices shall be deemed effective upon receipt. ARTICLE 22 ASSIGNMENT 22.1 The rights granted by this License Agreement inure to the benefit of Licensee and shall not be assigned, transferred, sold or disposed of, in whole or in part, by voluntary sale, merger, consolidation or otherwise by force or involuntary sale, withoutthe expressed prior written consent of the City, which consent shall not be unreasonable withheld, delayed or conditioned. 22.2 Notwithstanding the provisions of Section 16.1, a transfer of this License Agreement may occur without Cityapproval in the following circumstance: (i) an assignment or transfer to entities that control, are controlled by, or are under common control with Licensee, or (ii) the acquisition of all or substantially all of Licensee’s assets in the UniversityPark market by reason of a merger, acquisition or other business reorganization. In order to effect an assignment of this License Agreement as listed in (i) and (ii) above without Cityapproval, the Licensee must provide the CityManagera Notice of Assumption at least thirty (30) days prior to the assignment which contractually binds the purchasing or acquiring party to meet all the obligations of this License Agreement. 22.3 Licensor acknowledges that Licensee’s business plan includes leasing the capacity of its Network Facilities to Third Parties, often by long-term conveyances that extend for the entire useful life of the Network Facilities. Such long-term leases are agreed to be within the scope of Licensee’s intended use and shall not be deemed assignmentsrequiring Licensor’s consent, provided that Licensee has delegated none of its obligations under this License Agreement to the lessee of the Network Facilities, and Licensor may continue to look solely to Licensee for performance hereunder. 22.4 Licensee may also assign this License Agreement, without Licensor's consent and without prior notice to Licensor, to an institutional mortgagee or lender providing financing to Licensee with respect to Licensee's DAS Network or Network Facilities in the event such institutional mortgagee or lender exercises its foreclosure right against Licensee and operates the DAS Network or Network Facilities; provided such institutional mortgagee or lender is capable of assuming all of the obligations of the Licensee under this License Agreement and further provided that any assignment will not be effective against Licensor unless and until written notice of such assignment and exercise of rights is provided to Licensor. 23 ARTICLE 23 FUTURE CONTINGENCY 23.1 Notwithstanding anything contained in this License Agreement to the contrary, in the event that this License Agreement, in whole or in part, is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, unlawful, or otherwise inapplicable, the Licensee and the Cityshall meet and negotiate an amended License Agreement that is in compliance with the authority’s decision or enactment and, unless explicitly prohibited, the amended License Agreement shall provide the Citywith a level of compensation comparable to that set forth in this License Agreement. ARTICLE 24 MISCELLANEOUS 24.1 Choice of Laws. This License Agreement shall be construed and enforced in accordance with the laws of the State of Texas without regard to the conflict of law provisions thereof. Exclusive venue shall be had in Dallas County, Texas. 24.2 Entire Agreement. This License Agreement, together with its attached exhibits, contains the entire understanding between the Parties with respect to the subject matter hereof. There are no representations, agreements or understanding (whether oral or written) between or among the Parties relating to the subject matter of this License Agreement which are not fully expressed herein. This License Agreement can be amended, supplemented, modified or changed only by a written document executed by both Parties. 24.3 Reservation of Rights by Parties. Except as specifically set forth herein to the contrary, the Cityand ExteNeteach reserve all rights under applicable state and federal law. 24.4 Authority. The signer of this License Agreement for the Licensee and the Cityhereby represents and warrants that he or she has full authority to execute this License Agreement on behalf of the Licensee or the Cityrespectively. 24.5 Waiver. None of the material provisions of this License Agreement may be waived or modified except expressly in writing signed by the Licensee and City, as authorized by City Council. Failure of either party to require the performance of any term in this License Agreement or the waiver by either party of any breach thereof shall not prevent subsequent enforcement of this term and shall not be deemed a waiver of any subsequent breach. 24.6 Severability. If any clause or provision of the License Agreement is illegal, invalid, or unenforceable under present or future laws effective during the term of this License Agreement, then and in that event it is the intention of the parties hereto that the remainder of this License Agreement shall not be affected thereby, and it is also the intention of the parties that in lieu of each clause or provision of this License Agreement that is illegal, invalid, or unenforceable, there be added as part of this License Agreement a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable. 24 24.7 Captions. The captions contained in this License Agreement are for convenience of reference only and in no way limit or enlarge the terms and conditions of this License Agreement. 24.8 Third Party Beneficiaries. No person or entity shall be a third party beneficiary to this License Agreement or shall have any right or cause of action hereunder. 24.9 No Partnership. This License Agreement and the transactions and performances contemplated hereby shall not create any manner of partnership, joint venture or similar relationship between the Parties. 24.10 Attorneys’ Fees. If any action, suit or proceeding is brought by either Party hereunder to enforce this License Agreement or for failure to observe any of the covenants of this License Agreement or to vindicate or exercise any rights or remedies hereunder, the prevailing Party in such proceeding shall be entitled to recover from the other Party reasonable attorneys’ fees and other reasonable litigation costs (as determined by the court). 24.11 This Agreement shall be effective 30 days after passage. IN WITNESS WHEREOF the Parties have caused this License Agreement to be executed by their duly authorized representatives. CITYOF UNIVERSITYPARK ExteNet By:____________________ By:____________________ Name:Name: __________________ Title: Mayor Title: President and CEO Date: _____________, 2014 Date: _____________, 2014 25 Exhibit “A” Diagram of Facilities Allowed Under this Agreement and Map showing Location Where Facilities Are Allowed in City Right-of-Way 26 Exhibit “B” Fiber Indefeasible Right of Use Agreement 27 Exhibit “C” Form of statement to be submitted with monthly fee 28 CERTIFIED PAYMENT FORM Please find attached the followingsupporting documentation for each category: Gross Revenue Collected by ExteNet Systems, Inc._______________ Fee:_______________ Fee is to be five percent (5%) Of Gross Revenuesor a minimum payment of $200.00 per month per facility, whichever is greater. Indicate if fee is based upon percentage or minimum (underline applicable choice). Property Taxes ________________ I, ____________________ (name), in my capacity as ______________________ (title) for ExteNet Systems, Inc., am hereby authorized by ExteNet Systems, Inc. to make this filing on behalf of ExteNet System Inc., and do hereby certify that to the best of my knowledge and belief, the foregoing information is true and correct. ____________________________________________________ Signature Date _____________________________ Printed Name STATE OF _____§ COUNTY OF______§ BEFORE ME, the undersigned on this day personally appeared ____________(Name), ________________ (Title) and attested that she/he is authorized to sign on behalf of ExteNet Systems, Inc., and proved to me through the presentation of a valid Driver’s License to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she/he executed the same for the purposes and consideration therein expressed. M__. _______________furthermore attested that he/she is signing this document in his/her capacity as ______________ for and on behalf of ExteNet Systems, Inc., and that such capacity makes his/her signature valid and binding to ExteNet Systems, Inc. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ______ day of _________________, 20____. ___________________________________ NOTARY OF PUBLIC, State of ________ My Commission Expires:_________ 1 EXHIBIT“B” DARKFIBERINDEFEASIBLERIGHTOFUSEAGREEMENT This Dark Fiber Indefeasible Right of Use Agreement ("Agreement") is entered into this ___ day of ___________, 2014 by and between ExteNet Systems, Inc. ("Grantor"), and the City of University Park, Texas (“City"). Grantor and City are sometimes referred to herein individually as a “Party” or collectively as the “Parties.” Background WHEREAS, this Agreement is made in light of the following premises and circumstances, all of which are a part of this Agreement: A.Grantor, a Delaware corporation will be the owner of certain fiber optic cables comprising a component of a fiber network that Grantor plans to install in, over and/or under the public rights of way (“ROW”) within the geographic boundaries of City for the provision of providing telecommunications service (the “Network”); B.City is a political subdivision of the State of Texas with jurisdiction over the ROW for certain purposes; C.The planned route of such fiber optic cable is depicted on the Fiber Route Map attached hereto as Exhibit 1; D.City is entitled to manage the public rights-of-way and to require fair and reasonable compensation based on principles of cost recovery as a condition to allowing Grantor access to the ROW; E.Grantor and City desire to enter into an agreement to govern the terms and conditions under which Grantor will reserve four Dark Fiber strand in Grantor’s fiber optic cable for the exclusive use of City in connection with implementation of the Network installation in the ROW. Agreement Terms and Conditions NOW THEREFORE, in consideration of the promises and mutual covenants contained herein and in the ROW Agreement, the Grantor and City hereby agree as follows: 1. Definitions For the purpose of this Agreement, the following terms when used herein shall have the following meanings: (i) “Access Point” means a Manhole, Vault, Handhole, Junction Box or Pedestal through which the University Park Cable may be accessed for the purposes of splicing fibers to 2 interconnect to other networks or facilities. (ii) “Authorized Contractors” means third party contractors (whether independent or affiliated with Grantor) that have been approved and authorized by Grantor to utilize Access Points and to make splices or perform other work on the University Park Cable as provided for in this Agreement. (iii) “Dark Fiber” means an unlit optical fiber strand in a Fiber Segment that is separate from and has not yet been connected to any of the equipment, electronics, lasers or additional Fiber Segments necessary to transmit optical signals via the fiber strand or to corresponding fiber strands in other adjacent Fiber Segments. (iv) “University Park Cable” means the several Fiber Segments, whether aerial or undergrounded, comprising the optical fiber components of the Network as deployed and depicted in the Fiber Route Map. (v) “Fiber Route Map” means the map of the composite routes of the various Fiber Segments comprising the fiber cabling to be installed as part of the Network, as depicted on the map attached as Exhibit 1as the same may be modified during or after construction of the Network. Exhibit 1shall be replaced with the “As-Built” Fiber Route Map following completion of the Network and thereafter shall be updated from time to time as necessary to reflect modifications to the Fiber Segments or additional Fiber Segments comprising the University Park Cable made in accordance with the provisions of this Agreement. (vi) “Fiber Segment” means a continuous run of multi-strand fiber optic cable covering a portion of the fiber cable route shown on the Fiber Route Map. (vii) “Handhole” means a buried box, with a lid that is even with the surface of the ground, used to store, terminate, splice or transfer fiber optic cable. (viii) “Junction Box” means a box where fiber optic cable splices and connections are made and accessed. (ix) “Licensed Fiber” means the four individual strand of Dark Fiber within each Fiber Segment of the University Park Cable, as the same may be modified in accordance with this Agreement that shall be reserved and/or designated for exclusive use by City in accordance with and subject to the terms of this Agreement. For avoidance of doubt, additional Fiber Segments that are connected to the Network following its initial construction and deployment in accordance with the Fiber Route Map set forth in Exhibit 1on the effective date of this Agreement shall be deemed a part of the University Park Cable and shall be subject to the foregoing obligations on the part of Grantor to reserve and/or designate four strand of Dark Fiber for exclusive use by City only if and to the extent that such Fiber Segments and any associated Equipment are located within the geographic boundaries of City and are made subject to the ROW Agreement on terms and conditions no less favorable to Grantor than those that are then in effect with respect to 3 the Network as initially constructed and deployed. (x) “Manhole” means a subsurface enclosure which qualified personnel may enter and use for the purpose of installing, operating and maintaining facilities. (xi) “Pedestal” means an above ground structure used to store, terminate, splice or transfer fiber optic cable. (xii) “ROW Agreement” meansthat certain License Agreement between the parties executed on _____________. (xiii) “Vault” means an underground structure used to store, terminate, splice or transfer fiber optic cable. 2. License 2.1 License Grant Subject to the terms, conditions and limitations set forth herein, Grantor hereby grants to City a license and right for the exclusive use of the Licensed Fiber for the transmission of optical signals generated by optical or other equipment owned or employed by City. The duration of the foregoing license shall continue in perpetuity so long as the University Park Cable installation remains in place. However, nothing herein shall obligate Grantor to continue to maintain and operate any Fiber Segment comprising a part of the University Park Cable or to maintain any attachment rights related thereto during any periods after Grantor and its successors in interest permanently cease to use such Fiber Segment (other than the Licensed Fiber) for the provision of services to their customers. For avoidance of doubt, Grantor or its successors in interest shall give City prior written notice and a reasonable opportunity to assume responsibility for maintaining and operating each Fiber Segment containing Licensed Fiber before removing such Fiber Segment in connection with the expiration or termination of the ROW Agreement or ceasing to use such Fiber Segment for the provision of services. Except where Grantor is otherwise legally obligated to remove a Fiber Segment ina shorter period of time, such prior notice shall be given at least ninety (90) days in advance of such removal. 2.2 Scope of Grant (i) Grantor shall provide City with access to the Licensed Fiber. To the extent that Grantor has authority to use and authorize third party use of Access Points, it will grant permission to Authorized Contractors to use such Access Points for splicing the Licensed Fiber for the purpose of interconnection to other compatible equipment or facilities as directed by City and at City’s sole cost. Grantor shall have no obligation whatsoever to install any additional fiber optic cable or to allocate any additional strands of the University Park Cable to meet the needs of City. 4 (ii) City shall undertake to obtain and provideall approvals, authorizations, coordination and supervision that is necessary in connection with its use of the Licensed Fiber. Without limiting the foregoing, City shall have the sole responsibility for performing all activities and paying all costs necessary to make the Licensed Fiber operational, including but not limited to: (i) splicing the Licensed Fiber to achieve interconnection between or within the applicable Fiber Segments and between the Licensed Fiber and fiber optic cable belonging to others, and (ii) providing, attaching and interconnecting equipment, electronics and lasers as required to transmit or receive optical signals via the Licensed Fiber. City shall further have the sole responsibility for paying all costs and for constructing or otherwise providing facilities needed to connect the Licensed Fiber to any other network or facilities via appropriate Access Points, and for performing all necessary fiber splices for interconnection of the Licensed Fiber to other network facilities. Except as otherwise approved by Grantor (such approval not to be unreasonably withheld) all such splices and other uses of Access Points shall be carried out only by Authorized Contractors and, to the extent practicable, only during regularly scheduled maintenance windows or at other times that are reasonably convenient for Grantor. (iii) Grantor and City agree and acknowledge that City’s use and operation of the Licensed Fiber does not and will not create or convey to City any ownership or property rights ofany nature in the Licensed Fiber or any portion of the University Park Cable or of any Access Points or of the Network. City may not encumber, offer as collateral, or allow any third party claims of any type on or against the Licensed Fiber. (iv) In the event that City or any agency thereof fails or refuses to give any approval or issue any permit that is purportedly required for the construction and installation of the Network or otherwise takes action to prevent or prohibit construction or implementation of the Network substantially as proposed by Grantor in the materials it has heretofore submitted to the City of University Park, then the license and right with respect to the Licensed Fiber as provided in this Agreement shall, without any action on the part of Grantor other than the giving of written notice thereof, be entirely null and void and of no further force or effect. 2.3 Designation of Licensed Fiber Strand (i) At any time following completion of the Network construction andinstallation, City may notify Grantor of its desire to access the Licensed Fiber reserved for its use by Grantor. Such notice shall be written and shall be provided no fewer than sixty (60) days prior to the date on which City desires to access the Licensed Fiber for purposes of interconnection. City’s notice shall identify all of the following: (1) the specific portions of the Licensed Fiber route (i.e., the Fiber Segments) in which City intends to light and use Licensed Fiber, (2)the Access Points City desires to use (if any) to access and splice the Licensed Fiber, (3)all personnel or contractors that City proposes to use to perform any work activity involving the Licensed Fiber, including but not limited to construction and installation of fiber drops or laterals for interconnection of the Licensed Fiber to ancillary Access Points or to lasers, electronics or other equipment, facilities or networks for purposes of lighting and using the Licensed Fiber, and (4) City’s plans for 5 interconnecting with and using the Licensed Fiber, including relevant technical and functional network specifications and design criteria for City’s systems that may facilitate consultation and cooperation of City and Grantor in the interest of efficient and effective implementation of City’s plans in accordance herewith. (ii) Within ten (10) days following receipt of such initial notice, Grantor shall provide City with a color-coded diagram designating the specific optical fiber strands within the designated Fiber Segments that have been designated as the Licensed Fiber for all purposes hereunder. (iii) Grantor shall have the right to determine in advance whether City’s personnel and/or proposed contractors are qualified to perform such work activities and may disapprove any proposed personnel or contractor in its sole reasonable discretion. Grantor shall identify the reasons for such disapproval in writing and City may propose alternate personnel or contractors. (iv) City is solely responsible for obtaining all public, private or government approvals, authorizations, permits, certifications, easements, rights of way and attachment rights beyond those required for installation and maintenance of the University Park Cable, if any, that are necessary in order for City to light and transmit or receive signals using the Licensed Fiber, and shall provide documentary evidence thereof as and when reasonably requested by Grantor. (v) At City’s request or in the event that Grantor refuses to approve City’s selected contractor as an Authorized Contractor, Grantor will either propose or exert commercially reasonable efforts to cause one of its Authorized Contractors to propose to perform the work necessary for City’s proposed interconnection of equipment and other network facilities with the Licensed Fiber on a time and materials basis at then prevailing commercially reasonable rates for work of substantially similar complexity and difficulty in the relevant market. 2.4 Limitations and Requirements for Use of Licensed Fiber Strand (i) Grantor and City agree and acknowledge that City may use the Licensed Fiber in the University Park Cable for any lawful purpose for which the fiber strand is technically suited, provided that City shall use the Licensed Fiber solely for public purposes, shall not use it for the provision of any commercial telecommunications services in competition with the business of Grantor or for the benefit of any competitor of Grantor, and shall not permit any third party to use or operate the Licensed Fiber except at the direction of City in furtherance of public purposes. (ii) If Grantor determines for any reason that it is necessary to relocate, modify, underground or otherwise alter (“Relocation or Modification”) all or any portion of the University Park Cable, including the Licensed Fiber (whether such Licensed Fiber is then lit and/or in use by City), Grantor shall provide City written notification prior to making the proposed relocation, modification or alteration. Such notice shall be given at least 6 sixty (60) days in advance except in circumstances in which Grantor is legallyobligated to take action more promptly and the prior notification requirement of this section shall not apply to emergency situations, in which case Grantor will give notice as quickly as is reasonably practicable. City shall have no responsibility for costs and expenses relating to any such Relocation or Modification of the University Park Cable. But if and to the extent that such Relocation or Modification is required by reason of events or circumstances beyond Grantor’s reasonable control, Cityshall have sole responsibility for costs and expenses relating to any necessary rearrangement, relocation, modification or alteration of any of City’s fiber drops or laterals or other equipment, electronics or lasers installed to light the Licensed Fiber, or other facilities City has interconnected to the Licensed Fiber (“City Facilities Relocation or Modification”) that may result therefrom. However, if and to the extent that such Relocation or Modification is made at Grantor’s discretion or for Grantor’ benefit, Grantor shall bear the reasonable cost of the City Facilities Relocation or Modification resulting therefrom. (iii) Any equipment, electronics, lasers, or interconnecting fiber or other network facilities provided by City shall be installed and maintained in accordance with the requirements and specifications of the then current editions of the National Electrical Code (NEC), and the National Electrical Safety Code (NESC), each of which are incorporated by reference in this Agreement. Further, City and its consultants and contractors shall at all times comply with the applicable rules and regulations of the Occupational Safety and Health Act of 1970 (OSHA), with all applicable state and federal statutes and laws, and with all applicable regulations, rules and orders issued by any state or federal agency having jurisdiction thereof, including without limitation the Federal Communications Commission and the Texas Public Utility Commission. (iv) Grantor reserves the right to make periodic inspections at any time of any part of City’s equipment, electronics, lasers, or facilities (including interconnected fiber or copper cable) utilized by City in conjunction with the Licensed Fiber for purposes of assuring compliance with the terms and conditions hereof and with applicable laws, rules and regulations as reasonably necessary to prevent or detect interference with or damage to the Network or breaches of City’s obligations hereunder. Except in the case of an emergency, Grantor shall give City 48 hours’ notice before carrying out such inspections and City shall be permitted, but not required, to have a representative present for such inspections. Such inspections shall be conducted at Grantor’s expense. City agrees that such periodicinspections by Grantor, or the failure to do so, shall not relieve City of anyresponsibility, obligation or liability whether assumed under this Agreement or otherwiseexisting. 2.5 Fees. Grantor provides the Licensed Fiber to Cityas a form of additional compensation to City pursuant to the ROW License Agreement. 7 3.Maintenance (i) Grantor shall maintain all facilities interconnected with or comprising a part of the University Park Cable that are owned by Grantor, including the Licensed Fiber, provided that Grantor’s obligation to maintain such facilities shall not in any way extend beyond the term of the ROW Agreement and provided further that such obligation shall cease earlier as to any Fiber Segment with respect to which Grantor and its successors in interests either: (1)loses the necessary attachment and access rights to enable such maintenance;or (2)permanently ceases to use such Fiber Segment (other than the Licensed Fiber) for the provision of services to their customers, provided that before removing any suchFiber Segment Grantor gives City prior written notice and an opportunity to assume responsibility for maintaining and operating such Fiber Segment as provided in Section 2.1. (ii) City shall have sole responsibility for maintaining all of its equipment, electronics, lasers, fiber and other facilities interconnected to the Licensed Fiber. City shall maintain its equipment, electronics, lasers and interconnecting fibers and facilities in good repair and in a manner that will not interfere with, or degrade the quality or reach of any signal, transmission or telecommunications carried on the University Park Cable. If City’s equipment or facilities should cause any type of interference with, or degradation of, any signal, transmission or telecommunications on the University Park Cable, City agrees to correct the condition. Grantor shall promptly notify City of any such problem with City’s equipment or facilities. Such correction shall be made within three (3) hours for any problem causing interference or disruption of any signal, transmission or telecommunications on the University Park Cable. Such correction shall be made within six (6) hours for any problem causing a degradation, but not disruption, of any signal, transmission or telecommunications on the University Park Cable. If City fails to take such corrective action, Grantor may in its sole discretion correct said condition. Grantor shall notify City in writing prior to performing such work whenever practicable. When Grantor reasonably believes, however, that such conditions pose an immediate threat to public safety or interfere with the performance of Grantor’s service obligations to its customers, or pose an immediate threat to the physical integrity of the University Park Cable or other facilities, Grantor may perform such work and/or take such action, including temporary disconnection of City’s equipment and facilities from the University Park Cable, that itreasonably deems necessary without first giving written notice to City. Cityshall be responsible for paying Grantor for all reasonable costs incurred by Grantor in taking such corrective actionson City’s behalf, except where it is ultimately determined that the problem was not in fact caused by City’s equipment or facilities. In the latter case, Grantor shall bear the cost of any reconnection or restoration of City’s equipment or facilities that is made necessary as a result of Grantor’s mistaken actions. Grantor shall be indemnified by City for such work in accordance with Section 5 below. 4. Liability and Damages (i) Only as arising under this Agreement and not in its capacity as a municipality or otherwise, City, its personnel, agents and contractors shall exercise reasonable caution to 8 avoid damaging the facilities of Grantor and shall make an immediate report to Grantor of the occurrence of any such damage caused by its personnel, agents or contractors. (ii) Grantor shall not be liable to City for any special, indirect, or consequential damages arising from any interruption or degradation of City’s communications carried on Licensed Fiber. 5. Mutual Release Each of Grantor and City hereby agrees to hold harmless the other from and against any third party demand, claim, action, suitor proceeding (“Claim”) and any resulting loss, liability, cost, expense or fine, including court and appeal costs and reasonable attorneys' fees and expenses (“Losses”), that are caused by or arise out of the actual or alleged acts or omissions, whethernegligent or willful, of either Party, its personnel, agents or contractors, in connection with the performance under this Agreement or otherwise in connection with the construction (including any excavation), installation, operation, maintenance or use of the University Park Cable or the Licensed Fiber or any equipment or facilities interconnected or associated therewith. 6. Assignment (i) City may not assign, sub-license, or transfer in any manner, in whole or in part, its rights, duties or obligations under this Agreement, provided that, pursuant to Section 2.4 above, City may authorize the use of the Licensed Fiber by any entity for public purposes. (ii) Neither this Agreement nor any term or provision hereof, nor any inclusion by reference shall be construed as being for the benefit of any person or entity not a signatory hereto. 7. Termination The Parties shall have the right to terminate this Agreement and the license granted herein under the following circumstances: (i)Grantor. Grantor may terminate this Agreement (a) upon thirty (30) working days written notice with an opportunity to cure within ten (10) working days therefrom in the event that City commits a material breach of this Agreement or the ROW Agreement or uses the Licensed Fiber for any unlawful purpose, or (b) immediately upon written notice pursuant to Section 2.2.(iv). (ii)City. Upon sixty (60) calendar days written notice, City may terminate this Agreement, for any reason or for no reason (i.e., for convenience). (iii)In the event of termination in accordance herewith for any reason, City shall 9 remove all equipment, electronics, lasers and fiber or other facilities interconnected to the University Park Cable within sixty (60) days after the effective date of the termination. All costs of any kind arising from removal of City’ equipment, lasers and fiber, or other facilities shall be borne entirely by City. 8. General Provisions 8.1 Notices (i)All notices requiredor permitted to be given to either party by the other party under any provisions of this Agreement shall be in writing. Notice shall be deemed served when deliveredby hand or sent by a nationally recognized overnight courier service to the other party’saddress set forth below during normal business hours. If a Notice is mailed, service is deemed complete upon the earlier of actual delivery or the close of business on the third business day following the date when the Notice is placed in a receptacle regularly maintained by the U.S. Postal Service addressed to the party at the address set forth below with postage pre-paid. (ii)Notices shall be given to the following: If to the City of University Park: City of University Park Attn: City Administrator 4300 MacArthur Avenue, Suite 160 University Park, Texas 75209 With a copy to: ____________________ ____________________ ____________________ If to ExteNet Systems, Inc: ExteNet Systems, Inc. Attn: CFO 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 630-505-3800 With a copy to: 10 ExteNet Systems, Inc. Attn: General Counsel 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 630-505-3800 Or to such other addresses and persons as City or Grantor mayhereafter designate in a notice given in accordance with this Section 8.1. 8.2 Non-Waiver Failure of Grantor to take action to enforce compliance with any of the terms or conditions of this Agreement, or to give notice or declare this Agreement or any authorization granted hereunder terminated, or to exercise any right or privilege hereunder, shall not be construed as a continuing or future waiver of such term, condition, right or privilege, but the same shall be and remain at all times in full force and effect. 8.3 Headings All headings contained in this agreement are for convenience only and are not intended to affect the meaning or interpretation of any part of this Agreement. 8.4 Governing Law and Venue This Agreement and the rights and obligations contained in it shall be construed in accordance with, and governed by, the laws of the State of Texas, without regard to its choice of law provisions. Venue shall be in Dallas County, Texas. 8.5 Counterparts This Agreement may be executed in any number of counterparts, each of which when executed shall be deemed an original, but all of which together shall constitute one and the same instrument. 8.6 Confidentiality The parties acknowledge that Grantor will disclose proprietary and confidential network and business information to City in order to perform this Agreement. City agrees to take all reasonable steps to protect such proprietary and confidential information from public disclosure, and to make available such information internallyonly to City personnel with a need to know or to its legal counsel. City shall not disclose the contents of this Agreement except as required by state law in response to a formal request pursuant to the 11 Texas Public Information Act. City shall notify Grantor within 48 hours of receiving a request under the Texas Public Information Act for information about this Agreement. 8.7. Venue Venue for any complaint, cause, case or action arising from or related to this Agreement shall be in a state or federalcourt of competent jurisdiction sitting in Dallas County, in the State of Texas. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. City of University Park (City) ExteNet (Grantor) By: __________________________________ By: _______________________________ CEO Date: ____________________________Date: ________________________ 12 Exhibit 1 Fiber Route Map dated _______