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
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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.
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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
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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.
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"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;