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2008-077ORDINANCE NO. 2008-~ AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDMENT TO DARK FIBER LEASE AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE UNIVERSITY OF NORTH TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR RETROACTIVE APPROVAL OF THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas (hereafter the "City") has previously leased dark fiber facilities to the University of North Texas (hereafter the "University"), from the University Main Campus to the University Research Park, for a term of five (5) years, by a Dark Fiber Lease Agreement (hereafter the "Agreement"), effective January 1, 2003, as approved by ordinance of the City Council; and WHEREAS, the provisions of State law (Texas Utilities Code §54.2025, as amended) permit the City to lease the excess capacity of its fiber optic cable system; the City finds that it has excess capacity in its fiber optic system, and desires to lease the same, in a non- discriminatory manner, in accordance with its published tariff, to the University of North Texas for its public purposes; and WHEREAS, the City Council deems it necessary and appropriate and in the public interest to enter into the First Amendment to Dark Fiber Lease Agreement (hereafter the "First Amendment") with the University for a term of an additional five (5) years; and WHEREAS, negotiations for renewal of this First Amendment began in late 2007, by and between the City and the University; and the First Amendment which is being considered on this date was circulated, approved and executed by the University in Februazy 2008; and WHEREAS, the matter of this First Amendment was presented in an open meeting of the Public Utilities Boazd (hereafter the "Board") on the 24`h day of March, 2008, and the Board recommended approval to the City Council by a vote of 7-0; and WHEREAS, the City and the University have stipulated and agreed that the First Amendment shall be in all things effective from and after January 1, 2008, which shall be the commencement date of the said First Amendment; in order to make the University's five (5) year renewal lease term continuous with the previous Agreement, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations stated in the preamble to this ordinance are true and correct and are incorporated herewith as a part of this ordinance. SECTION 2: The City Manager is hereby authorized to execute a First Amendment to Dark Fiber Lease Agreement by and between the City of Denton, Texas and the University of North Texas for the lease of dark fiber optics pertaining to the matters hereinabove described, in substantially the form of the First Amendment to Dark Fiber Lease Agreement attached hereto and incorporated herewith by reference. SECTION 3: The expenditure of funds, if any, as provided for in the attached First Amendment to Dark Fiber Lease Agreement, is hereby authorized. SECTION 4 The First Amendment is hereby ratified and retroactively approved and confirmed, and shall be effective from and after January 1, 2008. SECTION 5: Except as provided in Section 4 hereinabove, this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ~ day of~ , 2008. PERRY R. McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By: fV THE STATE OF TEXAS § COUNTY OF DENTON § FIRST AMENDMENT TO DARK FIBER LEASE AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE UNIVERSITY OF NORTH TEXAS THIS FIRST AMENDMENT TO LEASE AGREEMENT is agreed between the parties to have an effective date of the ls` day of January, 2008, hereafter the "Effective Date" by and between the City of Denton, Texas, ahome-rule municipal corporation ("Denton") and -the University of North Texas, a university chartered under the laws of the State of Texas ("UNT"), (hereinafter the "Parties") upon the following terms and conditions: WHEREAS, this First Amendment to Dark Fiber Lease Agreement (hereinafter the "Agreement") replaces, amends, was contemplated by, is a renewal and extension of, and supersedes that certain Dark Fiber Lease Agreement previously entered into by Denton and UNT effective on the 1"day of January, 2003; and WHEREAS, the leased property is and continues to be one pair of dark fibers running from The University of North Texas Main Campus -Matthews Hall, located at 1300 West Highland Street 76201 to UNT Research Park, Second Floor Main Distribution Frame located at 3940 Elm Street 76207, both in the City of Denton, Texas (hereinafter the "Property"); and WHEREAS, this Agreement, by its provisions, takes into account the present circumstances as well as the desires of both Denton and UNT respecting the Property described below in Paragraph l; and WHEREAS, it is the intention of Denton and UNT that this Agreement, though executed and approved after January 1, 2008, be effective, ratified and confirmed as ofJanuary 1, 2008. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, Denton and UNT do hereby AGREE to the following terms and conditions: 1. LEASE GRANT. For and in consideration of the premises, covenants and agreements provided in this Agreement, Denton, effective January 1, 2008 has leased, granted and demised for the term of this lease unto UNT: one pair of dark fibers owned by Denton, hereinafter referred to herein as the "Property;" said Property being situated in the City of Denton, Denton County, Texas. 2. TERM. The lease term (the "Term") of this Agreement shall be for five (5) years, commencing effective on January 1, 2008 and expiring on December 31, 2012. Denton, however retains the absolute right to terminate this Agreement upon giving Tenant sixty (60) days written notice of termination in the event of any uncured default. In the event of termination of this Agreement upon sixty (60) days written notice by Denton, Denton shall be entitled to 1 reimbursement for the cost of the construction and installation of the one pair of dark fibers. Denton and UNT agree that a significant part of the rental calculation is based upon the cost incurred by Denton to complete the construction and installation of the one pair of dark fibers. 3. SECURITY DEPOSIT. Denton does not require that LINT pay to Denton a security deposit respecting this Agreement. 4. RENT. UNT shall pay rent to Denton, at the address specified herein for notices to Denton provided herein, without any offset or deduction, regarding the Property at the rate of $ 2,140 per month for sixty (60) consecutive months from January 1, 2008 until lease December 1, 2012. The first payment of rent shall be aone-time lump-sum payment of rent due and payable on February 1, 2008 paid in advance for the month of February 2008. Said payment shall be in the amount of $4,280, and shall be for the months of January and February, 2008. All subsequent monthly payments of rent owing by UNT to Denton shall be due and payable in the amount of $2,140 on the first day of each subsequent month, following the February 1, 2008 payment, subject to receipt and approval of an invoice by UNT at least thirty (30) days prior to the date of payment, until the expiration or termination of this Agreement. Denton shall invoice LJNT in advance for each such payment. Invoices shall be sent to PPS, PO Box 310499, Denton, Texas 76203. 5. OPTION TO RENEW. Provided that Denton has not earlier terminated this Agreement as permitted herein, and further provided that LJNT is not in default with respect to the terms and provisions of this Agreement, UNT shall have the option to notify Denton, in writing, within the period beginning one hundred and twenty (120) days and ending sixty (60) days prior to the end of the five (5) year term provided by this Agreement, that Tenant desires to extend the terms of this Agreement for one additional fide (5) year term. All provisions of this Agreement, save and except the rent obligation, shall be the same. Denton shall determine the amount of rent that is to be charged to UNT within thirty (30) days after notification by UNT and shall communicate that amount to UNT, in writing. UNT shall then consider such rental amount and shall notify Denton, in writing, within fifteen (15) days after the receipt of notice from Denton, about whether UNT desires to consummate the renewal of the Agreement, considering the amount of rental established by Denton. 6. TENANT'S RESPONSIBILITIES. In return for Denton's lease of the Property, LJNT agrees to provide the following services, to wit: A. At the termination of the term of this Agreement, or of any extension thereof, UNT shall surrender the Property to Denton, in the same condition as it existed on the first day of the Agreement, subject however, to allowance for reasonable wear, tear and deterioration. 7. FIBER PERFORMANCE. Denton covenants to commence repairs within one (1) hour of notification, which repairs shall be completed as expediently as possible, utilizing spare resources from Denton's perpetual inventory. The end-to-end optical budget of the fiber segment should not exceed 9 db. The fiber cable shall support both wavelengths at ]310 and 1550 nanometers. LINT reserves the right to have fiber performance tested by an independent test 2 organization for conformance with the optical specifications stated above, at its own cost. A hard copy of the final document, consisting of a complete set of end-to-end power attenuation and OTDR readings for each single-mode fiber end at 1310 and 1550 nanometers, shall be provided to UNT along with the actual cable route and total footage for each fiber segment. 8. CONDITION OF PROPERTY. Denton and UNT agree that once the one dark fiber pair is installed, if for documented adequate reason, the fiber does not function for the purposes intended by this Agreement, then UNT will be released from its obligation to pay rent for any period of time thereafter, provided that Denton has had a reasonable opportunity to test the performance of the equipment and reasonably agrees that the equipment in question no longer meets the purposes intended by UNT. UNT hereby acknowledges that it has inspected the Property, that it is in place and functioning as of January 1, 2008 as well as on this date, and UNT still accepts and approves of the Property in its present condition. 9. INDEMNIFICATION. UNT shall possess and use the Property at UNT's sole risk. Neither UNT, nor Denton, shall have any obligation to indemnify the other party hereto in the case of any loss or liability arising from the use of the Property. 10. ASSIGNMENT AND SUBLETTING. UNT shall not sublet or assign all or any portion of this Agreement or the Property, or any interest therein, without the prior written consent of Denton. Any assignment or subletting in violation of this paragraph shall be void. 11. LANDLORD'S ACCESS TO THE PROPERTY. [t is expressly agreed that Denton shall have the right to enter onto UNT's property at any reasonable time to inspect the condition of the Property, the use thereof, or for any other lawful purpose, so long as prior notice is provided to UNT. In the event that such prior notice cannot be provided to UNT, UNT shall be notified of such entrance onto UNT's property as soon as practicable. Denton shall also have the right to enter upon UNT's property at any time in order to make repairs or improvements to the Property. UNT agrees to assist Denton by arranging for necessary access to locations on UNT's property, which requires the use of a key. 12. DEFAULT. UNT shall be in default under this Agreement i£ A. UNT fails to pay any rent payment due under this Agreement within thirty (30) days of receipt and approval of each invoice; or B. UNT fails to comply with any term, condition, or covenant of this Agreement other than the payment of rent, and that failure is not cured within thirty (30) days after written notice is issued to UNT by Denton; or C. Should UNT default in the payment of rental obligations hereunder, for a thirty day period, then Denton may assess interest at one percent (1%) per month or the maximum rate allowed by law, whichever amount is less. 3 13. REMEDIES. On the occurrence of any default under this Agreement, Denton may enforce the performance of this Lease in any manner provided by law, in equity, or as specifically provided in this Agreement. UNT hereby specifically waives any claim that UNT may have with respect to any obligation of Denton to mitigate its damages in Che event of UNT's default hereunder. In particular, but without limitation, Denton shall have the option to pursue any one or more of the following remedies without any notice ofdemand whatsoever: A. Terminate this Agreement. In this case UNT shall immediately surrender the Property to Denton. However, ifUNT fails to surrender the Property to Denton, Denton may, without prejudice to any other remedy which Denton may have for possession of the Property or for arrearage in rent or any sum due hereunder, enter upon and take possession of the Property; or B. Enter upon the Pronerty, without tetminatin this Agreement. Denton shall not be liable for prosecution for any claim for damages, and Denton may do whatever UNT is obligated to do under the terms of this Agreement. UNT shall reimburse Denton, on demand, for all reasonable expenses that Denton incurs in effecting compliance with UNT's obligations under this Agreement, together with interest thereon at the maximum rate allowable by law from the date thirty days after receipt and approval of an invoice. Pursuit of any of the foregoing remedies shall not preclude Denton's pursuit of any other remedy herein provided or any other remedies provided by law, nor shall pursuit of any remedy herein constitute a forfeiture or waiver of any rent due to Denton hereunder or of any damages accruing to Denton, by reason of the violation of the terms, provisions, and covenants herein contained. The rights and privileges given to Denton in this pazagraph shall be cumulative of, and without prejudice to, any rights or remedies given to Denton by law to procure possession, or to enforce the payment of rent, or performance of the other covenants hereof. No waiver by Denton of any violation or breach of any of the terms, provisions, and covenants herein contained shall be deemed or construed to constitute a waiver of any other or future violation of breach of any of the provisions, conditions, or covenants herein. 14. NOTICES. Any notice or other written letter or instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, addressed to Denton or UNT, as the case may be, at the following addresses: DENTON: CITY OF DENTON, TEXAS Attention: Communications Mgr Harry Hettinger 901-A Texas Street Denton, Texas 76201 Fax: (940)349-7334 Telephone: (940) 349-7172 UNT: THE UNNERSITY OF NORTH TEXAS University Services Building 2310 North Interstate 35-East P.O. Box 310499 Denton, Texas 76203-0499 Telephone: (940) 565-4299 4 I5. MISCELLANEOUS PROVISIONS A. Compliance With The Law. UNT shall at UNT's sole cost and expense, obtain the necessary license and permits required to conduct UNT's activities respecting the Property. UNT shall also comply with all governmental laws, ordinances, resolutions, and regulations applicable to the Property, or UNT's use thereof. B. Independent Contractor. UNT is acting as an independent contractor respecting this Agreement, and is not an employee, officer or agent of Denton. C. No Waiver. No waiver by either party hereto of any default under this Lease shall be deemed to be a waiver of any subsequent default of the same, of any other term, condition, or covenant contained in this Agreement. D. Governing Law/Venue. This lease shall be governed by and construed in accordance with the laws of the State of Texas. Any and all suits brought for the enforcement of this Agreement, or breach of this Agreement, or for any other cause of action brought pursuant to this Agreement shall be brought in the courts of Denton County, Texas. E. Invalid Provisions. Should any provision of this Agreement been deemed or found to be invalid by any legislative, administrative, or judicial body, or for any other reason whatsoever, the other provisions of the Ageement shall remain in full force and effect, and shall be unaffected by such declaration of invalidity. F. Entirety. This Agreement and all exhibits attached hereto, if any, contain the entire agreement between Denton and UNT with respect to the subject matter herein, and may not be altered, modified, changed, annulled, or amended in any manner without the written consent of both parties. G. Effective Date. The effective date of this Agreement shall be the 1 s` day of January, 2008. H. Alternative Dispute Resolution. Chapter 2260 of the Texas Government Code establishes a dispute resolution process for contracts involving goods, services and certain types of projects. If Chapter 2260 applies to this Agreement, the parties must use the statutory dispute resolution process to attempt to resolve disputes arising under this Agreement. IN WITNESS WHEREOF, Denton and UNT have executed this Agreement in f ur (4) original counter arts, by their duly authorized officers and representatives; on this the /5~ day of , 2008, but to be effective as of January 1, 2008. 5 "DENTON" CITY OF DENTON, TEXAS A Texas Municipal Corporation By: ~ ~-- George C. Campbell City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: /~.. APPR VED AS O LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By: ~ ~ , ..~T„ THE UNIVERSITY OF NORTH TEXAS By: L. t~ !"/ Vice President for Finance & Administration ATTEST: By: IVd7 Yt2ce <~ APPROVED AS TO LEGAL FORM: By: 6 fiber Bid for UNT 1 Matthews Hall, located at 1300 West Hi hland Street 76201 To UNT Research Park, Second Floor Maln Distribution Frame located at 3940 Elm Street 76207 Final 01-15-2008 9:00 AM Originating Building Terminatln Buildin Fibermiles Fiber Price Per Mile Monthly Charge Yearly Char e 1300 t9'est highland SUeet 3940 Elm Street 4N0 Sn80.00 52.140.00 $25.680.00 dais - 4.9G 5980.00 a?,140.00 52`660.00 Crovr mileage distance X 2 7.6 50.00 ,;Q00 0.0p Applied Discount Discount Amount Fibermiles Applied Amount Discounte Monthly Charge iscounte ear Charge o Mai Appitable 00 ..QO 50.00 00.00 Additional Charges Reca tared Year StartlSto mono Cost Applied Amount Additional Monthly Charge mono ea y Charge o NotA liable 59.00 50.00 50,00 Monthly Charge eary arge $2,140.00 $25 660 00 1n5299a u:41 Ate Fage 1 nr;