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 _______