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2014-363ORDINANCE NO. 2014-363 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL AGREEMENT WITH THE DENTON COUNTY TRANSPORTATION AUTHORITY (DCTA) UNDER SECTION 791.001 OF THE STATE OF TEXAS GOVERNMENT CODE, TO AUTHORIZE THE CITY OF DENTON TO INSTALL A "DOWNTOWN WIRELESS SYSTEM" INCLUDING WI-FI DEVICES AND ROOF MOUNTS AT THE DCTA TRANSIT CENTER; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE (FILE 5672). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS; SECTION 1. The City Manager or his designee is hereby authorized to execute the Interlocal Agreement with the Denton County Transportation Authority under Section 791.001 of the Texas Governmerit Code, a copy of which is attached hereto and incorporated by reference herein (the "Agreement"). SECTION 2. The City Manager or his designee is authorized to expend funds pursuant to the Agreement for the purchase of various goods and services. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5672 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4, This ordinance shall become effective immediately upon its passage and approval. �� PASSED AND APPROVED this the �`��'�� day of � m_ ��% „ , 2014, �°�G �� i��"�ATTS, MA �W _.. . YOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ......�4� ,�"� W . .��.�� . � � . _�� * r,� � APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: � ��' ,�� " , � � �., ' �;� " �,,wr � �, � � .. ,��.*.:::.��,�..�_�m_ �. ,� —� ,��".�� ,�o�� ,� , INTERLOCAL AGREEMENT This Interlocal Agreement (the "Agreement") is made and entered into this 4t�' day of November, 2014, between The City of Denton, Texas, a Texas home rule municipality (hereinafter "City") and Denton County Transportation Authority, a coordinated county transportation authority authorized by Chapter 460 of the Texas Transportation Code, as amended (hereinafter "DCTA"). City and DCTA are hereafter .collectively referred to herein as "Parties" or individually as a"Party." WHEREAS, both City and DCTA have the authority to enter into this Agreement pursuant to Chapter 791, Texas Government Code, as amended; and WHEREAS, the project ("City of Denton Downtown Wi-Fi Access" or "the Project") contemplated under this Agreement is of mutual interest and benefit to DCTA and to the City, and will further the technical objectives of the Parties in a manner consistent with their governmental status as stewards of the community within Denton County and the State of Texas; and WHEREAS, it is mutually beneficial to the Parties to execute this Agreement whereby the Parties can achieve common objectives relating to the health, safety, and welfare of the citizens of Denton County and the State of Texas; and NOW THEREFORE, in consideration of the mutual representations, terms and covenants hereafter set forth, the Parties agree as follows: 1. GRANT OF LICENSE. DCTA hereby grants to the City a non-exclusive license to install, operate, maintain, repair, replace, and/or remove equipment related to the operation of the "Downtown Wireless System," ("the Project") by placement of the Wi-Fi Equipment on the rooftop of DCTA Downtown Denton Transit Center ("DDTC"), pursuant to the terms of this Agreement as follows: A. City shall be authorized to install up to one (1) Wi-Fi Access Point device (the "Wi-Fi Equipment") on the Northwest corner and Southwest corner, respectively, of the roof of the DDTC, with the exact location to be approved by DCTA. B. The Wi-Fi Equipment must be installed using a non-penetrating roof mount system so that there is �o penetration of the roof of the DDTC. C. The Wi-Fi Equipment will be connected to power via a Cat 6 cable that will extend over the south wall of the DDTC to connect to a power injector that will be located on the interior wall. The interior and exterior location of such power cab�ing shall be subject to the approval of DCTA. D. DCT� agrees to make available a standard 110v wall plug for operation for each of the power injectors described in Paragraph C, above, on a dedicated electrical circuit, which City shall install at City's expense using a contractor approved by DCTA. Such plugs shall be located within the DDTC at a location approved by DCTA. E. Following reasonable prior notice to DCTA, which shall in no case be less than one business day, DCTA agrees to allow City access to the DDTC roof to repair, maintain, replace, and/or remove the Wi-Fi Equipment. F. Following reasonable prior notice, which shall in no case be less than one business day, DCTA agrees to allow City to access to the electrical circuit providing power to the Wi-Fi Equipment to power cycle the Wi-Fi Equipment. G, Except as otherwise provided in this Agreement, City shall be solely responsible for the cost of purchasing, installing, repairing, maintaining, operating, replacing, and/or removing the Wi-Fi Equipment, roof mounts, electrical outlets and circuits necessary for the Project. H. The City will at all times be the owner of the Wi-Fi Equipment. The electrical outlets and electrical circuits installed pursuant to this Agreement shall become part of the DDTC and shall be owned by DCTA, provided their use shall be subject to this Agreement. I. The City shall require any contractor engaged by the City for the purpose of installing, repairing, maintaining, removing, or replacing the Wi-Fi Equipment or any other improvements at the DDTC to have the following insurance in effect while performing such work on DCTA's property: (1) Commercial General Liabilitv Insurance. This coverage shall include premises/operations, . products/completed operations, blanket contractual liability, broad form property damage, independent contractors and personal injury and where the exposure exists, explosion, collapse and underground property damage. This coverage should be a minimum Combined Single Limit of $1,000,000 per occurrence for Bodily Injury and Property Damage, (2) Automobile LiaN�rilitv insurance, (a) Minimum Combined Single Limit of $500,000 per occurrence for Bodily Injury and Property Damage; and (b) The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of the liability section in Item 2 of the declarations page which includes coverage for hired, leased and non-owned vehicles. (3) Workers' Com ��sation Insurance. In addition to the minimum statutory requirements: (a) Employer's Liability limits of at least $100,000 for each accident, $100,000 for each employee, and a$500,000 policy limit for occupational disease; (b) The insurer agrees to waive rights of subrogation against DCTA, its officials, agents, employees, and volunteers for any work performed at the DDTC; and (c) City shall comply with the provisions of Section 406.096 of the Texas Labor Code and 28 TAC § 110.110 of the Texas Worker's Compensation Commission to the extent such statute and regulation apply to City. (4) General Provisions. (a) All policies shall be endorsed to read substantially as follows: "THIS POLICY WILL NOT BE CANCELLED OR NON-RENEWED WITHOUT 30 DAYS ADVANCED WRITTEN NOTICE TO DCTA EXCEPT WHEN THIS POLICY IS BE1NG CANCELLED FOR NONPAYMENT OF PREMIUM, 1N WHICH CASE 10 DAYS ADVANCE WRITTEN NOTICE IS REQUIRED". (b) Commercial General Liability and Automobile Liability insurance shall be written by companies with "A-" or better rating in accordance with the current AM Best Key Rating Guide. (c) � Commercial General Liability, Automobile Liability, and Excess Liability insurance policies shall name as "Additional Insured" the DCTA and its officials, agents, employees, and volunteers. (d) Certificates of insurance must reflect all coverages and endorsements required by this section. (e) Coverage shall be placed with insurance carriers licensed to do business in the State of Texas or with non-admitted carriers that have a financial rating comparable to carriers licensed to do business in Texas approved by DCTA. 2. PRINCIPAL CONTACT. The Project will be supervised and managed by Curtis Conrad, Enterprise Operations Manager at the Technology Service Department for the City or such other employee of the City as may from time to time be determined by City's City Manager or designee. 3. PERIOD OF PERFORMANCE. This Agreement will be effective immediately upon execution by authorized representative of both Parties. This Agreement shall be renewed automatically on the anniversary date, on a year-to-year basis, unless terminated by either Party as provided herein. If a Party elects to not renew this Agreement, the Party shall comply with Section 6- Termination. 4. TOTAL AMOUNT OF THE CONTRACT. The City and DCTA understand, acknowledge, and agree that placement of the Wi-Fi Equipment on the DDTC provides "free" electronic access to DCTA's customers waiting at the DDTC and DCTA's adjacent facilities and to visitors to the City's downtown facilities. Because of the mutual benefit to the Parties and their respective constituencies, the City agrees to provide for the Wi-Fi Equipment, including its purchase, installation, maintenance, repair, and replacement, without a charge to DCTA or other occupants or users of the DDTC for use of the Wi-Fi Equipment, and DCTA agrees to provide allow the installation, operation, maintenance, repair, and replacement of the Wi-Fi Equipment at the DDTC at no cost to, or expected payment from, the City 5. PAYMENT SCHEDULE. None. Deleted, 6. TERMINATION. This Agreement may be terminated by either Party, upon delivery of written notice to the other Party not less than ninety (90) days prior to the date of termination. 7. BREACH / OPPORTUNITY TO CURE. In the event either Party is in default of any provision of this Agreement, the Party not in default shall provide to the Party in default at least thirty (30) days written notice to cure said default before exercising any of its rights as provided for in this Agreement. 8. LIABILITY. The Parties and their respective ofiicers and employees shall not be deemed to assume any liability for the acts, omissions and/or negligence of the other Party. In the event the DDTC is damaged as the result of the acts or omissions of City, its employees, agents, or contractors, whether intentional or negligent, occurring as the result of the installation, maintenance, repair, removal, or replacement of the Wi-Fi Equipment or the electrical outlets or circuits as provided in this Agreement, the City shall promptly repair such damage to the reasonable satisfaction of DCTA at the City's sole cost. 9. DISCLAIMER OF LIABILITY. THE PARTIES MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY K1ND, EITHER EXPRESS OR IMPLIED 1N CONNECTION WITH THE TECHNICAL REPORTS, 1NVENTION DISCLOSURES OR RESEARCH DATA FURNISHED UNDER THIS AGREEMENT. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT USE OF SUCH MATERIALS OR MODIFICATION OF SUCH MATERIALS WILL NOT INFRINGE ON ANY � PATENT, COPYRIGHT; TRADEMARK, OR OTHER PROPRIETARY RIGHT. 10. FORCE MAJUERE. Except for the obligation for the payment of money, if either Party fails to fulfill its obligations hereunder when such failure is due to an act of God, or other circumstance beyond its reasonable control, then said failure shall be excused for the duration of such event and for such a time thereafter as is reasonable to enable the parties to resume performance under this Agreement. 11. DISPUTE RESOLUTION. The City must use the dispute resolution process provided in Chapter 2260 of the Texas Government Code to attempt to resolve a dispute arising under this contract and such process is a required prerequisite to suit in accordance with Chapter 107, Texas Civil Practice and Remedies Code. The City must submit written notice of a claim of breach of contract under this chapter to DCTA. Nothing in this Agreement waives or relinquishes the right of either Party to claim any exemptions, privileges and immunities as may be provided by law. 12. REMEDIES. This Agreement shall be construed by and governed by the laws of the State of Texas. Venue for any legal action necessary to enforce the Agreement will be in a state court in Denton County, Texas. No remedy herein conferred upon any �arty is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any Party of any right, power or remedy hereunder shall preclude any other or further exercise thereof. 13. ENTIRE REPRESENTATION. This Agreement contains the entire agreement between the Parties and supersedes any prior oral or written agreements, commitments, understandings, or communications with respect to the subject matter of the Agreement. No amendments or modification of this Agreement shall be effective unless set forth in writing executed by duly authorized representatives of each party. This Agreement shall be construed in accordance with the laws of the State of Texas. 14. WAIVER. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any right or remedy, or future exercise thereof. 15. ASSIGNMENT. This Agreement may not be assigned in whole or in part by any of the Parties without prior written consent of the other Party: 16. SEVERABILITY. In the event that any section, paragraph, sentence, clause or provision hereof is held by a court of competent jurisdiction to be invalid, such shall not affect the remaining portions of this Agreement and the same shall remain in full force and effect. 17. AMENDMENTS. This Agreement may be amended from time to time by written amendment by both parties. 18. NOTICE. Any notice required to be given in connection with this Agreement shall be in writing and shall be deemed effective if hand delivered, or if sent by United States certified mail, return receipt requested, postage prepaid, or if sent by private receipted courier guaranteeing same-day or next-day delivery, addressed to the respective party at its address provided below. If sent by U.S. certified mail in accordance with this Section, such notices shall be deemed given and received on the earlier of (a) actual receipt at the address of the named addressee, or (b) on the third (3rd) business day after deposit with the United States Postal Service. Notice given by any other means shall be deemed given and received only upon actual receipt at the address of the named addressee. Denton County Transportation Authority 1955 Lakeway Drive, Suite 260 Lewisville, TX 76057 Telephone: (972) 221-4600 Attn: Chief Operating Officer Email: With copy to: Peter G. Smith, General Counsel 19. NO Nichols, Jackson, Di�lard, Hager & Smith, LLP 500 N. Akard, Suite 1800 Dallas, Texas 75201 City of Denton Purchasing Department 901 B Texas Street • Denton, Texas 76201 Attn: Purchasing Manager Telephone: (940) 349-7133 Email: purchasing@cityofdenton.com THIRD PARTY BENEFICIARIES. For purposes of this Agreement, including its intended operation and effect, the Parties specifically agree that: (1) the Agreement only affects matters/disputes between the Parties and is in no way intended by the Parties to benefit or otherwise affect any third person or entity notwithstanding the fact that such third person or entity may be in contractual relationship with DCTA or the City, or both; and (2) the terms of this Agreement are not intended to release, either by contract or by operation of law, any third person or entity from obligations owed by them to either DCTA or the City. 20. ENTIRETY OF AGREEMENT. This Agreement represents the entire understanding between DCTA and the City and supersedes all other negotiations, representations or agreement, written or oral, relating to this Agreement, (Signatures on Following Page) The Parties have caused this Agreement to be executed by their duly authorized representative. Denton County Transportation Authority City of Denton, Texas : Title: Date: �� " B """ _ y, �� ,� . ... ..... � �.�, � . Title: �" � �....... _ ... .��..... �.. _..... � � 1 ��i��: � � � �•� ��::..�_.�. ....._ � ��f��'��k� A� "�i� FORM: �i"� AT��"C��t��" Ci:�'` �F C��N�'��ir TEXAS ` �°�` :�"" �,� �'�" , �