2004-243FILE REFERENCE FORM 2004-243
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Amended b Ordinance No. 2008-077 04/01/08 JR
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A 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 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 fmds that it
has excess capacity in its fiber optic system, and desires to lease the same, in a non-
discriminatory manner, 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 Dark Fiber Lease Agreement with the University of North Texas for a
term of five (5) years; and
WHEREAS, negotiations began on this lease agreement prior to its execution, and the
City and the University of North Texas entered into a certain Letter of Intent signed 9n
September 10, 2003, which generally put into written form the previous understandings of the
parties; and the City and the University of North Texas, having previously orally agreed to lease
one (1) pair of dark fiber for the immediate use of the University of North Texas, connecting the
UNT Main Campus (Matthews Hall) to UNT Research Park, Second Floor Main Distribution
Frame, both in the City of Denton, Texas; and
WHEREAS, the City and the University of North Texas have stipulated agreed that the
Dark Fiber Lease Agreement shall be effective fi.om and after January 1, 2003, which shall be
the commencement date of the said lease; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the recitations in the preamble are tree and correct and are
incorporated herewith as a part of this Ordinance.
SECTION 2: That the City Manager is hereby authorized to execute a 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 Dark Fiber Lease Agreement attached hereto and incorporated herewith by reference.
SECTION 3: That the expenditure of funds as provided for in the attached Dark Fiber
Lease Agreement, is hereby authorized.
SECTION 4 That the Dark Fiber Lease Agreement is hereby ratified and retroactively
approved and confu'med, and shall be effective from and after January 1, 2003.
SECTION 5: That except as provided in Section 4 hereinabove, this ordinance shall
become effective immediately upon its passage and approval.
PASSED AND APPROVED this the 7L~. dayof ~/~Y~'c~_/~ ,2004.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By:
S:\Our Documents\Ordinances\04\UNT Dark Fiber Lease Ordinance.doc
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THE STATE OF TEXAS
COUNTY OF DENTON
DARK FIBER LEASE AGREEMENT
BY AND BETWEEN
THE CITY OF DENTON, TEXAS AND THE UNIVERSITY OF NORTH TEXAS
THIS LEASE AGREEMENT is agreed between the parties to have an effective date of
the 1~t day of January, 2003, hereafter the "Effective Date" by and between the City of Denton,
Texas, a home-rule municipal corporation ("Denton") and the University of North Texas, a
university chartered under the laws of the State of Texas ("UNT"), upon the following terms and
conditions:
WHEREAS, this Dark Fiber Lease Agreement ("Agreement") replaces, amends, was
contemplated by, and supercedes that certain Letter of Intent entered into by Denton and UNT on
the 10th day of September, 2003; and
WHEREAS, notwithstanding that this Dark Fiber Lease Agreement has been signed and
approved after January 1, 2003, Denton and UNT desire and agree that the effective date of this
Agreement is to be stated, for all purposes, as January 1, 2003, the date that service is deemed to
have commenced respecting the leased property, i.e. 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; and
WHEREAS, this Dark Fiber Lease 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 1.
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, 2003 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, 2003 and expiring on December 31, 2007. 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
reimbursement for the cost of the construction and installation of the one pair of dark fibers. Denton
and LINT 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 UNT 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 the Denton provided herein, without any offset or deduction, regarding the Property at the
rate of $1,840.50 per month for sixty (60) consecutive months. The first payment of rent shall be a
lump-sum payment of rent due and payable on May 1, 2004 and shall total $29,448, and shall cover
the sixteen (16)-month lease period from January 1, 2003 to April 30, 2004. All subsequent
$1,840.50 monthly payments of rent owing by UNT to Denton shall be due and payable on the first
day of each subsequent month, 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 UNT 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 LINT is not in default with respect to the
terms and provisions of this Agreement, LINT 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 five (5) year term. All provisions of this Agreement, save and
except the rent obligation, shall be the same. Denton shall deternfine the amount of rent that is to be
charged to UNT within thirty (30) days after notification by LINT and shall communicate that
amount to UNT, in writing. UNT shall then consider such rental amount and shall notify Denton, in
writing, within fit~een (15) days after the receipt of notice fi.om 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, UNT 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 1310 and 1550
nanometers. LINT 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 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 LINT 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 functiomg as of January 1, 2003 as well as on this date, and UNT accepts and
approves of the Property in its present condition.
9. INDEMNIFICATION. LrNT shall possess and use the Property at UNT's sole risk.
Neither UNT, nor Denton, shah have any obligation to indemnify the other party hereto in the case
of any loss or liability arising fi.om the use of the Property.
10. ASSIGNMENT AND SUBLETTING. LINT 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. It 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
LINT. 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
LrNT's property at any time in order to make repairs or improvements to the Property. LrNT agrees
to assist Denton by arranging for necessary access to locations on UNT's property, which requires
the use ora key.
12. DEFAULT. UNT shall be in default under this Agreement iff
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, and that
failure is not cured within thirty (30) days after written notice is issued to UNT by Denton.
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 is less.
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 the event of UNT's default hereunder.
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In particular, but without limitation, Denton shall have the option to pursue any one or more of the
following remedies without any notice of demand 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 Property, without terminating 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 fi:om 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 paragraph 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 eonstmed 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: UNT:
CITY OF DENTON, TEXAS
Attention: Communications Mgr.
Harry Hettinger
901-A Texas Street
Denton, Texas 76201
Fax: (940) 349-7334
THE UNIVERSITY OF NORTH TEXAS
Attention: Telecommunications Manager
Ken Sedgiey
1706 Chestnut Street
Denton, Texas 76201
Telephone: (940) 349-7172
Telephone: (940) 565-4299
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15. MISCELLANEOUS PROVISIONS:
A. Compliance WithTheLaw. LINT 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. LINT 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 conta'med 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 Pmvisious. 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 Agreement 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.
2003.
The effective date of this Agreement shall be the 1st day of January,
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.
1N W1TNESS WHEREOF, Denton and UNT have executed this Agreement in three (~3) original
counterparts, by~ their duly ~uthorized officers and representatives, on this the 7~' day of
~Dg-~'/27~/D , 200t~t.
"DENTON"
CITY OFDENTON, TEXAS
A Tex~ MunicipalCorporation
Michael A. Conduff~/
City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
"UNT"
THE UNIVERSITY OF NORTH TEXAS
Phillip C. Dleboff //
Vice President for Finance & Business Affairs
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ATTEST:
By:
APPROVED AS TO LEGAL FORM:
By: ~