22-568ORDINANCE NO.22-568
AN ORDiNANCE OF THE CITY OF DENTON PROVIDING FOR AUTHORIZATION ANDRATIFICATION OF A DARK FIBER AGREEMENT BETWEEN THE CITY OF DENTONAND CORE SCIENTIFIC INC. REGARDING THE USE OF THE CITY’S DARK FIBERFACILITIES; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Denton has heretofore constructed a fiber optic system in order to
provide a dependable, secure, and cost-effective communications path for the monitoring andprotection of its electric utility system, which fiber optic system is in place and operational, and
covers portions of the City of Denton; and
WHEREAS, the provisions of §54.2025 of the Texas Utilities Code expressly allow and
permit the lease of excess capacity of the City’s dark fiber optic facilities, provided that the rental
is done on a nondiscriminatory, non-preferential basis; and
WHEREAS, the City and Core Scientific Inc. have previously entered into a powerpurchase agreement and land lease for the provision of electric energy and related services to a
data center located on City property and leased to Core Scientific Inc.; and
WHEREAS, there exists a limited amount of excess capacity on City’s fiber optic system
and City desires to lease a portion of that excess capacity to Core Scientific Inc. in order to improvethe data and information services for use in computer network of Core Scientific Inc., in
furtherance of the existing power purchase agreement and land lease in which City has aneconomic interest; and
WHEREAS, the amounts established as the fees and rates under the Dark Fiber Agreement
represent a fair consideration and market rates for the equipment furnished; and that the equipmentand services to be rendered and the fees and rates to be charged for the equipment and services are
not regulated by the Public Utility Commission of Texas;
WHEREAS, the City Manager previously executed the Dark Fiber Agreement to preservethe interests of the City, which the City Council hereby confirms and ratifies; NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by
reference into the body of this ordinance as if fully set forth herein.
SECTION 2. The Dark Fiber Agreement between the City of Denton and Core Scientific,
Inc. attached hereto and incorporated herein for all purposes is hereby authorized, confirmed, and
ratified. The City Manager, or her designee, is further authorized to carry out all duties andobligations to be performed by the City under the Dark Fiber Agreement, including any
expenditure of funds.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
secondeT£,"“K= ” ZZ;;:;~"’"'' "” TI.b.Y„'„,='=t„#d-I;deFILed’::the following vote n -aJ :
Aye
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Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :
Brian Beck, District 2:
Jesse Davis, District 3 :
Alison Maguire, District 4:
Deb Armintor, At Large Place 5 :
Paul Meltzer, At Large Place 6: /
PASSED AND APPROVED thi,, th, 2141,y ,f P{a_nh
/
,/
. 2022
GERARD HUDSPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY L\\\\IIII III
BY: , rba, , zg32L,
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY.„A by Mack
712:15:27
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STATE OF TEXAS §
§
§COUNTY OF DENTON
DARK FIBER AGREEMENT
THIS DARK FIBER AGREEMENT (this “Agreement”) is made and entered intoon the 10th day of March 2022 (the “Effective Date”), by and between the CITY OFDENTON, a Texas Municipal Corporation (hereinafter the "CITY") and Core Scientific Inc.
(hereinafter the “LEASEE"), each organized and existing under the laws of the State of Texas,
acting by and through and under the authority of their respective governing bodies andofficials
WHEREAS, the CITY has heretofore constructed a fiber optic system that is operatedby Denton Municipal Electric (“DME”) in order to provide a dependable, secure, and cost-
effective communications path for the monitoring and protection of its electric utility system,which fiber optic system is in place and operational, and covers portions of the City of
Denton; and
WHEREAS, the provisions of §54.2025 of the Texas Utilities Code expressly allow
and permit the lease of excess capacity of the CITY’S dark fiber optic facilities, provided that
the rental is done on a nondiscriminatory, non-preferential basis; and that the provisions of
Texas may not presently allow or permit the use by LEASEE of the CITY’S “lighted“ fiber
facilities, and accordingly, CITY and LEASEE expressly understand and recognize that only
“dark” fiber facilities are being leased to the LEASEE hereunder; and
WHEREAS, the CITY and LEASEE have previously entered into a power purchase
agreement and land lease for the provision of electric energy and related services to a data
center located on CITY property and leased to LEASEE; and
WHEREAS, there exists a limited amount of excess capacity on CITY’s fiber optic
system and CITY desires to lease a portion of that excess capacity to LEASEE in order to
improve the LEASEE’s data and information services for use in its computer network, in
furtherance of the existing power purchase agreement and land lease in which CITY has an
economic interest; and
WHEREAS, the CITY and LEASEE agree that the amounts established as the feesand rates under this Agreement represent a fair consideration and market rates for the
equipment furnished; and that the equipment and services to be rendered and the fees and
rates to be charged for the equipment and services are not regulated by the Public Utility
Commission of Texas; and
NOW THEREFORE, the CITY and LEASEE, for and in consideration of the premises
and the mutual covenants set forth in this Agreement, do hereby AGREE as follows:
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ARTICLE I
INCORPORATION OF PREAMBLES
The preamble to this Agreement is wholly incorporated into this Agreement and therecitations contained therein are found and determined to be true and correct.
ARTICLE II
SCOPE OF AGREEMENT
A.CITY shall lease a portion of CITY’s dark fiber optic cable to LEASEE for the
purpose of point-to-point transport of high-speed data. The dedicated dark fiber optic
cable owned by the CITY and leased pursuant to this Agreement (“Fiber Pair”) will bedetermined after the Effective Date to allow CITY and LEASEE to determine the
available location and placement of the Fiber Pair, but shall consist of the specific sites
and associated linear feet provided in Attachment “A”, which will be completed once
the precise location of the Fiber Pair is determined.
B.LEASEE shall pay to the City, beginning on the Effective Date, a payment equivalent
to the net monthly rates adopted in the DME Utility Rate Book (“Rate Book”) in effect
on the month of provided service, and continue monthly payments for each successivemonth thereafter for the remainder of the Term (hereinafter defined) of this
Agreement. The rates in effect on the Effective Date are $400 per Fiber Pair, per
month, per mile, plus a building charge of $180 for a total rate of $580 per month,
with a minimum one-mile connection charge for each facility being $580 per month.Any future changes to the rates adopted in the Rate Book will become immediately
applicable and effective to the rates paid under this Agreement and paid by LEASEE
under this Agreement for the remainder of the Term. LEASEE shall pay all other non-
recurring charges for services and equipment to City at direct costs incurred for such
services and equipment. If additional dark fiber facilities are added to this Agreement
they shall be included in Attachment “A“ and the additional monthly payment shall be
calculated in accordance with the provisions expressed in this Subsection.
C.The term of this Agreement shall commence on the Effective Date and continue for
the period of 5 years (the “Term”). In the event the Rate Book is amended to allow for
a lease term of less than 5 years, the LEASEE may amend the Term by providingnotice to CITY ofLEASEE’s election to change the Term to a shorter term authorized
by the Rate Book.
D.CITY shall furnish, maintain, and own at the CITY’s own cost and expense, except as
otherwise provided herein, all labor, services, and material for the creation,
construction, and completion of the Fiber Pair.
E The CITY shall furnish, maintain, and own, at LEASEE’s cost and expense, except as
otherwise provided herein, all labor, services, and material relating to the additional
lines emanating from the Fiber Pair and all termination of fiber optic cabling with
"LC" style connectors into patch panels at the LEASEE sites. The exact point of
demarcation or placement of the patch panel at the LEASEE sites shall be mutually
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determined by the CITY and LEASEE, which determination shall be evidenced by a
letter signed by authorized representatives of the CITY and LEASEE. Once the CITY
makes the connections provided in this Subsection, the LEASEE’s acceptance of the
Fiber Pair is complete. The LEASEE shall provide to CITY and maintain atLEASEE’s cost:
1.
2.
3
4.
5.
all internal building conduits necessary for CITY to install its wiring from
the building service entrance to the point of termination;
suitable space (i.e., a room, or a portion if acceptable to CITY), for CITY
facilities and equipment;
sufficient electric power to operate the CITY facilities and equipment;
access to locations described in Subsections II.(E)(1)-(E)(2) supra forinstallation, maintenance, operation, and removal of the service(s)
facilities; and
proper operating environment for all CITY facilities and equipment located
on the LEASEE’s premises.
F.LEASEE shall furnish, maintain, and own, at LEASEE’s own cost and expense, unlessotherwise provided herein, all labor, services, and material necessary for the
installation and connection of LEASEE's electronics equipment (not to include "ST"
connectors) to the patch panel at the point of demarcation at the LEASEE sites.
LEASEE shall promptly provide the CITY with any additional instructions, by means
of drawings or by other written documents, as the CITY may require in order to be
able to proceed with the work as provided for in this Agreement. All such drawings
and written documents shall be consistent with, and reasonably inferable from this
Agreement.
G.CITY and LEASEE agree that the CITY's lease to LEASEE is limited to a point-to-
point, dark fiber connectivity. CITY and LEASEE further agree that LEASEE’s use
of the Fiber Pair shall be limited to LEASEE personnel; that the Fiber Pair leased to
LEASEE shall transmit data only; and, that LEASEE will not offer access to the Fiber
Pair to the public.
H.The LEASEE’s recurring monthly charges will be billed in the same manner as the
CITY’s customary billings for electric or water services. Non-recurring charges for
other service(s) or equipment provided by City under this Agreement may be invoiced
separately and paid by LEASEE before service or equipment is activated. IfLEASEE
fails to pay any amounts owed to CITY when due, CITY may discontinue or suspend
service without incurring any liability to LEASEE.
I The LEASEE will own and provide all of the electronic equipment needed to
implement its wide-area network and use of the Fiber Pair at its sole cost and expense.CITY shall use reasonable efforts to complete the installation of the service(s) on or
before the service implementation date specified in Attachment “A”, subject to thecompletion of the LEASEE's responsibilities set out in this Agreement. The CITY
may utilize such persons as may be necessary to act as inspectors or agents for the
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purpose of supervising, in the interest of the CITY, the materials furnished, and the
work done by LEASEE as any installation involved in this Agreement proceeds.
ARTICLE IIITERMINATION OF AGREEMENT
A.CITY may terminate this Agreement at any time without cause after a period of notless than ninety (90) days from the date CITY provides notice to LEASEE. If
LEASEE terminates this Agreement without cause before the end of the Term, or
otherwise defaults in performance and payment of its obligations under this
Agreement, LEASEE shall be responsible for all payments and charges due or to
become due during the remainder of the Term, including the amount of the unpaid
monthly charges for the remainder of the Term (“Termination Charges”). IfLEASEE
shall breach any material provision of this Agreement and fail to cure said default or
breach within 10 days after receipt of notice of default for such breach, then CITY, at
its option, may terminate this Agreement. Any termination by the CITY for cause,
including a termination for LEASEE non-payment, shall be treated as if it were a
termination by LEASEE for the purpose of determining Termination Charges due toCITY from LEASEE.
B.CITY and LEASEE understand that if any change of law provides that the CITY’s
lease of excess dark fiber optic facilities to LEASEE becomes illegal or unlawful, that
the CITY has the right to immediately cancel the remaining term of this Agreement
and disconnect its Fiber Pair facilities from the LEASEE’s equipment without penalty.
C.At the time of expiration or termination of this Agreement, the relationship between
the CITY and LEASEE regarding the leased Fiber Pair shall immediately cease, and
the CITY shall thereafter remove all fiber optic connections at the LEASEE sites in a
careful, prudent manner.
ARTICLE IVACCEPTANCE OF THE CONNECTIONS BY LEASEE
Upon request of LEASEE, CITY agrees to submit to LEASEE sufficient test data
respecting all aspects of the connection to the Fiber Pair in order to establish satisfactory
performance prior to utilization of the connections and acceptance by LEASEE. Acceptabletest results will be defined as follows:
The end-to-end optical budget of the fiber segment should not exceed 20 db for 1310nanometers and or 16 db for 1550 nanometers. The fiber cable shall support both
wavelengths at 1310 and 1550 nanometers. The LEASEE reserves the right to have
fiber performance tested by an independent test organization for conformance with the
optical specifications stated above. A hard copy of the final document, consisting of acomplete set of end-to-end power attenuation and Optical Time Domain Reflector
(“OTDR”) readings for each single-mode fiber end at 1310 and 1550 nanometers, shall
be provided to the LEASEE along with the actual cable route and total footage for each
fiber segment.
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ARTICLE V
USE OF PROPRIETARY INFORMATION
All data exchanged between CITY and LEASEE in connection with this Agreement or
in utilization of the Fiber Pair, which is identified as proprietary information, shall be
safeguarded by CITY and LEASEE to the same extent as the CITY or LEASEE safeguards
like information relating to the CITY’s or LEASEE's own business. If, however, such data is
publicly available under the Public Information Act (Chapter 552 of the Texas Government
Code) or other applicable laws, is already in either party’s possession or known to either party,or was rightfully obtained by either party from third parties, neither CITY or LEASEE shall
bear any responsibility for its disclosure of such information, inadvertent or otherwise.
ARTICLE VIRESPONSIBILITY FOR MAINTENANCE
A.The LEASEE shall be solely responsible to determine the location of any problem
within the LEASEE electronics network and to remedy such problem at LEASEE’s
sole cost and expense. The LEASEE should first contact their ISP provider as the first
contact for internet outages before contacting CITY. In the event that a problem arises
solely within the Fiber Pair or (any additional lines emanating from the Fiber Pair) or
connections at any patch panels, LEASEE shall promptly notify the CITY and the
CITY shall resolve the problem in a timely and cost-efficient manner at the CITY's
sole cost and expense. The CITY covenants to commence repairs within four (4)
hours of actual notification from the LEASEE, which repairs shall be completed as
expediently as possible, utilizing where possible spare resources from the CITY’s
Inventory .
B.Access to CITY's equipment on LEASEE’s facilities may be required to restore the
Fiber Pair and other City equipment and LEASEE shall receive no interruption credit
on charges for service for any delay occasioned by such lack of access or for the
period of interruption.
C.The LEASEE will not, nor will LEASEE permit others, to rearrange, disconnect,
remove, attempt to repair, or otherwise interfere with any of the facilities or equipment
installed by CITY, except upon CITY's prior written consent. CITY shall not be
responsible for the installation, testing, operation, maintenance, repair and replacementof any ISP-provided or LEASEE-provided equipment required for the LEASEE’sinterconnection with or use of CITY’s Fiber Pair.
D While LEASEE is responsible for ensuring that ISP-provided and LEASEE-provided
equipment is compatible with CITY equipment and facilities, CITY will provideLEASEE with any required information and reasonable technical assistance to
facilitate such compatibility. The responsibility of CITY shall be limited to the
furnishing, operation and maintenance of Fiber Pair furnished by CITY for theservice(s) outlined this Agreement. It is understood that CITY may provide assistance
beyond CITY-owned dark fiber facilities as a matter of LEASEE service, but that
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CITY is not required to do so and assumes no responsibility for such other facilities or
equIpment.
ARTICLE VIICITY MAINTENANCE OF FIBER OPTIC CABLE
In the event that the CITY determines that it is reasonably necessary to perform
maintenance on the Fiber Pair or within the CITY's network, then the CITY shall notify
LEASEE at least twenty-four (24) hours in advance, if reasonably possible, of any periods of
time the CITY determines is necessary for CITY’s network to be down.
ARTICLE VIII
DISASTER RECOVERY
In the event of a disconnection of the Fiber Pair due to a natural disaster, such as a
tornado, flood, or other catastrophic event, the CITY will re-establish connections to LEASEE
at the earliest reasonable opportunity, taking into account, however, that the safety and
welfare of the citizens of the CITY shall be the CITY’s utmost priority in determination ofrestoration of service.
ARTICLE IX
INDEMNIFICATION, RELEASE, WAIVER, AND HOLD HARMLESS
A.LEASEE AGREES THAT IT WILL NOT USE THE FIBER PAIR, SERVICES,OR FACILITIES PROVIDED BY CITY FOR ANY UNLAWFUL ORILLEGAL PURPOSE AND AGREES TO INDEMNIFY AND HOLD CITYHARMLESS FROM ANY LOSS OR DAMAGE ARISING FROM SUCH USE.
LEASEE agrees to comply with all of the terms and conditions of the federal, state,and local law, ordinance, rules, and regulations, and all policies of any ISP providerutilized by LEASEE.
B.EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CITY MAKESNO WARRANTIES, EXPRESSED OR IMPLIED, RELATING TO CITY’S FIBERPAIR, SERVICES, AND FACILITIES AND EXPRESSLY DISCLAIMS ANYIMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW, INCLUDING,BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY ANDFITNESS FOR A PARTICULAR PURPOSE.
C EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THISAGREEMENT, THE REMEDIES SET FORTH HEREIN SHALL BE CITY'S SOLEOBLIGATIONS TO LEASEE AND LEASEE’S SOLE REMEDIES FOR ANY LOSSOR DAMAGE SUSTAINED AS A RESULT OF ANY INTERRUPTION OF THESERVICES OR ANY FIBER PAIR OR FACILITIES USED IN PROVIDING THESERVICES, HOWEVER LONG IT SHALL LAST AND REGARDLESS OF THECAUSE
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D.IN NO EVENT SHALL CITY BE LIABLE TO THE LEASEE OR TO ANY THIRD
PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIALOR EXEMPLARY DAMAGES RELATING TO OR ARISING FROM THEPROVISION OF THE SERVICES TO BE PROVIDED HEREUNDER, OROTHERWISE RELATING TO THE PERFORMANCE BY EITHER PARTY OF ITSOBLIGATIONS HEREUNDER, INCLUDING, WITHOUT LIMITATION,DAMAGES BASED ON LOSS OF REVENUES, PROFITS OR BUSINESSOPPORTUNITIES, WHETHER OR NOT CITY HAS OR SHOULD HAVE HADANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGESMIGHT BE INCURRED.
E.LEASEE, ITS RELATED ENTITIES, SUCCESSORS, ASSIGNS OR OTHERPARTY UNDER ITS CONTROL, AGREES TO INDEMNIFY AND HOLD CITY.MEMBERS OF THE CITY COUNCIL, AND ITS OFFICERS, EMPLOYEES.AGENTS, REPRESENTATIVES, AND CONSULTANTS, HARMLESS FOR ANYLOSS OR EXPENSE, INCLUDING ATTORNEY FEES, ARISING FROMPROPERTY DAMAGE OR INJURY TO PERSONS RELATED TO THE FIBERPAIR, SERVICES, AND FACILITIES PROVIDED BY CITY UNDER THISAGREEMENT.
ARTICLE XTAXES AND FEES
LEASEE agrees to pay all taxes, fees, or impositions which may be levied by any
authority on the service and facilities which may be provided hereunder, including taxes, fees,
or impositions which may be imposed after the date of this Agreement and any taxes whichmay be imposed on CITY and further agrees that CITY may include such, or amounts
equivalent to such, in its billings to LEASEE for services.
ARTICLE XI
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties hereto may agree to settle any disputes under this Agreement by
submitting their dispute to arbitration or other means of alternate dispute resolution such as
mediation. No arbitration or other alternate dispute resolution arising out of or relating to, thisAgreement involving one party's disagreement may include the other party to the
disagreement without the other’s approval.
ARTICLE XIIASSIGNABILITY
LEASEE shall not assign any interest in this Agreement and shall not transfer any
interest in this Agreement to another entity (whether by assignment, novation or otherwise).
Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of,
and be enforceable by the parties and their respective successors and assigns. LEASEE shall
not fractionalize, resell, sublet or provide to others any of equipment leased by CITY under
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this Agreement in whole or in part. CITY may lease its dark fiber optic excess capacity toothers, and this Agreement is non-exclusive in nature.
ARTICLE XIII
NOTICE
Any notice given by one party to the other in connection with this Agreement shall be
in writing and shall be by personal delivery; sent by registered mail or certified mail; or by
U.S. Mail, return receipt requested, postage prepaid; or by facsimile transmission actuallyreceived, to:
CITY:City Manager
City of Denton, Texas
215 East McKinney StreetDenton, Texas 76201
Fax: (940) 349-8596
and
Denton Municipal Electric
Deputy Director of Technical Services901-A Texas Street
Denton, Texas 76209
Fax: (940) 349-8476
LEASEE:
Notice shall be deemed to have been received on the date of receipt as shown on the return
receipt or other written evidence of receipt.
ARTICLE XIVMODIFICATION
No waiver or modification of this Agreement or of any covenant, condition, limitation
herein contained shall be valid unless in writing and duly executed by the party to be charged
therewith. No evidence of any waiver or modification shall be offered or received in evidence
in any proceeding arising between the parties hereto out of or affecting this Agreement, or the
rights or obligations of the parties hereunder, unless such waiver or modification is in writing,
duly executed. The parties further agree that the provisions of this Article will not be waived
unless as herein set forth
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ARTICLE XVSAVINGS
In the event that any one or more of the provisions hereof concerning the subject
matter of this Agreement should be held by a court or administrative agency of competentjurisdiction to be illegal, invalid or unenforceable in any respect, the parties agree to make a
good faith effort to renegotiate another agreed provision to fulfill the purpose and intent of the
present Agreement.
ARTICLE XVIGOVERNING LAW AND VENUE
This Agreement shall be construed under and governed by, and in accordance with the
laws of the State of Texas, and all obligations of the parties hereto, created by this Agreement
are performable in Denton County, Texas. Venue of any suit or cause of action under this
Agreement shall lie exclusively in Denton County, Texas.
ARTICLE XVIIENTIRE AGREEMENT
This Agreement and the attachments attached thereto, constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof, and supersedes any prior
understandings or written or oral agreements between the parties with respect to the subject
matter of this Agreement. No amendment, modification, cancellation or alteration of the
terms of this Agreement shall be binding on any party hereto unless the same is in writing,
dated subsequent to the date hereof, and is duly authorized and executed by the parties hereto.
ARTICLE XVIIIWAIVER OF TERMS AND CONDITIONS
The failure of either party to enforce or insist upon compliance with any of the terms
or conditions of this Agreement shall not constitute a general waiver or relinquishment of anysuch terms or conditions, but the same shall be and remain at all times in full force and effect.
ARTICLE XIX
AUTHORITY OF PARTIES
This Agreement is made by and entered into by the duly-authorized officials ofLEASEE, upon the proper authorization of LEASEE. This Agreement is made by andentered into by the duly-authorized officials of CITY, subject to ratification by the City
Council of the CITY after the Effective Date. Notwithstanding anything contained herein, if
the City Council of the CITY does not ratify and approve this Agreement within 60 days of
the Effective Date, this Agreement shall automatically terminate without further notice or
cause and be deemed cancelled and extinguished without further obligation for either party.
ARTICLE XX
CAPTIONS
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The captions contained in this Agreement are for informational purposes only and
shall not in any way affect the substantive terms or conditions of this Agreement.
ARTICLE XXIII
COUNTERPARTS
This Agreement may be executed in any number of counterparts, and executed by electronicsignature, each of which shall be deemed an original and constitute one and the sameInstrument.
EXECUTED on the Effective Date by the CITY, signing by and through its City
Manager, and by the LEASEE, acting through its duly authorized officers.
“CITY”
CITY OF DENTON, TEXAS
DocuSigned by:
By: I !=eSARA HENSLEY, CITY MANAGER
ATTEST:
ROSA RiOS, CITY SECRETARY
DocuSigned bw
By:RouRim
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
DocuSig ned by:
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“LEASEE”
DocuSlgned by:
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,GC30Wes Adams EVP constructlon
Tax ID: 82-3805526
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