Loading...
2003-048AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR, OR IN THE MAYOR'S ABSENCE, THE MAYOR PRO-TEM, TO EXECUTE AN EXTENSION TO INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE DENTON INDEPENDENT SCHOOL DISTRICT REGARDING THE LEASE OF EXCESS DARK FIBER OPTIC CAPACITY FROM THE CITY TO THE DENTON INDEPENDENT SCHOOL DISTRICT IN CONNECTION WITH THE IMPLEMENTATION OF THE DENTON INDEPENDENT SCHOOL DISTRICT WIDE AREA NETWORK; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; PROVIDING FOR RETROACTIVE RATIFICATION, APPROVAL AND CONFIRMATION THEREOF. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the Mayor, or in her absence, the Mayor Pro-Tem, is hereby authorized to execute, on behalf of the City Council of the City of Denton, Texas, an Extension To Interlocal Cooperation Agreement between the City of Denton, Texas and the Denton Independent School District for the lease of excess dark fiber optic capacity fi:om the City to the Denton Independent School District in connection with the implementation of the Denton Independent School District Wide Area Network, which Extension to Interlocal Cooperation Agreement is attached hereto and incorporated by reference herein. SECTION 2. That the expenditure of funds as set forth in the Extension To Interlocal Cooperation Agreement is hereby authorized. SECTION 3. That this Ordinance and the attached Extension To Interlocal Cooperation Agreement shall be ratified, approved and confirmed effective as of the 28th day of January, 2003. PASSED AND APPROVED this the.~_~/~ day of .~/~/~/~//'-b] , 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY S:\Our Documen ts\Or dinances\03XlgI~D Interlocal Cooperation Agreement-Dark Fiber WAN 2003.do¢ THE STATE OF TEXAS § COUNTY OF DENTON § EXTENSION TO INTERLOCAL COOPERATION AGREEMENT THIS AGREEMENT is made and entered into by and between the CITY OF DENTON, TEXAS, a Texas Municipal Corporation (hereinafter "CITY") and the DENTON INDEPENDENT SCHOOL DISTRICT (hereinafter "DISD"), organized and existing under the laws of the State of Texas, acting by and through, and under the authority of their respective governing bodies; and WHEREAS, the CITY and DISD are local governmental entities, both of whom have the authority to perform the services set forth in this Agreement individually and who mutually desire to enter into an extension to interlocal cooperation agreement, as provided for in Chapter 791 of the Texas Government Code (Vernon 1994) in order to maximize the benefits to the citizens &Denton, Texas derived from each taxpayer dollar; and WHEREAS, the CITY has heretofore constructed a fiber optics system operated by Denton Municipal Electric in order to provide a dependable, secure, and cost-effective communications path for the monitoring and protection of its electric utility system; and WHEREAS, there exists a limited amount of excess capacity on the City's fiber optics system; and DISD has not heretofore constructed any fiber optics system in order to interconnect all of DISD's facilities, largely due to the cost of constructing such a system. DISD, in order to improve the quality of education of the children enrolled in the Denton schools, desires to lease from the CITY, only excess "dark" fiber optic capacity from the CITY's system for use in its computer network, for the purpose of interconnecting all of DISD's schools, support and administrative facilities on a fiber optics system which DISD believes will provide for a vast integration of educational materials and exchange of data; and WHEREAS, the provisions of §54.2025 of the Texas Utility Code further expressly allows and permits the lease of excess capacity of the CITY's fiber optic facilities (dark fiber) provided that the rental is done on a nondiscriminatory, non-preferential basis; said Texas Utility Code clearly does not allow or permit the use by DISD of the CITY's "lighted" fiber facilities; and accordingly, it is expressly undemtood by the CITY and DISD that only "dark" fiber is being leased to DISD hereby; and WHEREAS, the CITY and DISD desire to pool their resources, avoid unnecessary or duplicitous expense, and take advantage of maximizing economies of scale, resulting in cost savings to their respective taxpayers; and WHEREAS, heretofore, the CITY and DISD, by an Inteflocal Cooperation Agreement previously executed and approved by the CITY Council and the DISD Board of Trustees, in DME/DISD Extension To Interlocal Cooperation Agreement - Page 1 early 1998, for a term of five (5) years, provided for the CITY to lease excess "dark" fiber optics system capacity, and to construct aWide Area Network ("WAN") for use by DISD, utilizing that dark fiber optic capacity provided and installed by the CITY, as provided in said previous Interlocal Cooperation Agreement; and WHEREAS, said previous Inteflocal Cooperation Agreement contained provisions that allowed the CITY and DISD to further extend their agreement, provided that certain terms and conditions are met; and the CITY and DISD each mutually desire to continue their contractual relationship by extending the term thereof for an additional five (5) year period; and WHEREAS, CITY is willing to extend the lease of excess "dark" fiber optics system capacity to DISD and to extend a Wide Area Network ("WAN") for use by DISD, utilizing that fiber optic cable provided by and installed by the CITY as provided in this Extension To Interlocal Cooperation Agreement. The CITY and DISD by this Extension To Interlocal Cooperation Agreement (hereafter the "Agreement") express their mutual understanding that the relationship to be created by implementation of this Agreement is that of two governmental entities sharing a private telecommunications network; and WHEREAS, there is a valid governmental purpose served by this Agreement by the CITY to DISD to provide high technology communications capability and connectivity for the DISD in order that DISD may interconnect its facilities to provide enhanced services to the students of DISD, as well as to DISD's support and administrative functions, consistent with the lease of"dark" fiber; and WHEREAS, the CITY and DISD agree that all payments made in connection with the governmental functions provided for by this Agreement shall be made from current revenues available to the paying party and that the payments received are adequate and fairly compensate the parties for the services performed; and WHEREAS, the Interlocal Cooperation Act, now contained in Chapter 791 of the Texas Government Code (Vernon 1994), authorizes the CITY and DISD to enter into this Agreement for the purpose of achieving the governmental functions and providing the services represented by this collective, cooperative undertaking. NOW THEREFORE, the CITY and DISD, for and in consideration of the premises and the mutual covenants set forth in this Extension To Interlocal Cooperation Agreement do hereby AGREE as follows: ARTICLE I INCORPORATION OF PREAMBLES The preambles to this Agreement are incorporated into this Agreement and are found and DME/DISD Extension To Interlocal Cooperation Agreement - Page 2 determined to be tree and correct. ARTICLE II SCOPE OF AGREEMENT Denton Independent School District ("DISD") intends to implement its Wide Area Network ("WAN") utilizing leased "dark" fiber optic cable owned by and provided by the City of Denton ("CITY"). DISD will own and provide all of the electronics equipment needed to implement its WAN at its sole cost and expense. The Core WAN, as referred to in this Agreement consists of a redundant ring which incorporates five (5) specific DISD sites. Additional lines emanate from this redundant ring to other DISD sites. The redundant ring DISD sites and other DISD sites are shown on Exhibit "A" which is attached hereto and incorporated herewith by reference. The redundant ring shall consist of two (2) pairs of single-mode fiber optic cable terminating at points of demarcation at each DISD site. Additional lines shall consist of at least one (1) pair of single-mode fiber optic cable terminating at points of demarcation at each DISD site. The connection from Calhoun Middle School to Denton High School shall consist of two (2) pairs of single-mode fiber optic cable terminating at points of demarcation at each DISD site. The CITY shall furnish at CITY's own cost and expense, except as otherwise provided herein, all labor, services, and material for the creation, construction, and completion of the redundant ring and all additional lines emanating therefrom as provided within this Agreement. The CITY shall furnish at CITY's own cost and expense, except as otherwise provided herein, all labor, services, and material relating to the termination of the fiber optic cabling with "ST" style connectors into patch panels at each of the DISD sites. The exact point of demarcation or placement of th,e patch panel at each of the DISD sites shall be mutually determined by the CITY and DISD at the time of construction, which determination shall be evidenced by a letter signed by authorized representatives of the CITY and DISD. DISD shall furnish, at DISD's own cost and expense, unless otherwise provided herein, all labor, services, and materials necessary for the installation and connection of DISD's electronics equipment (not to include "ST" connectors) to the patch panel at the point of demarcation at each of the DISD sites. DISD shall be responsible for providing suitable conduit ingress from the utility right of way to a point within 50 feet of the point of demarcation at each DISD site. The exact location for the ingress conduit will be mutually agreed to between DISD and DME. Plans should be provided to DME as soon as possible but not less than 120 days prior to installation. The conduit will be dedicated for the sole use of DME for fiber installation. The conduit installation shall meet National Electric Code for installation of communications cable. The conduit will be a minimum of 2-inch conduit with long DME/DISD Extension To Inteflocal Cooperation Agreement - Page 3 sweep 90s. There will be no more than four 90s without a pull box. Pull boxes will be large enough and configured to accommodate a minimum-bending radius of 15 inches. DISD will be responsible for providing a pulling string in the conduit. DISD shall promptly provide the CITY with any additional instructions, by means of drawings or by other written document, as the CITY may require 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. CITY and DISD agree that the CITY's service to DISD is limited to a point-to-point, unswitched, private "dark" fiber service. CITY and DISD further agree that DISD's use of the WAN shall be limited to DISD personnel and students; and, that DISD will not offer access to the system to the public. ARTICLE III TERM OF AGREEMENT The CITY and DISD agree that this Agreement shall be effective from and after, and retroactively approved, ratified, and confirmed as of the 28th day of January, 2003 irrespective of the formal approval date of the governing bodies of both parties hereto, and shall continue in force and effect for a period of five (5) years. In the event that §791.001(f), or any other provision of Chapter 791 of the Texas Government Code requires an annual or other period of renewal of this Agreement, then the parties shall be deemed to have elected to renew this Agreement annually on the anniversary of the effective date of this Agreement unless the parties each elect to terminate this Agreement. The CITY is desirous of continuing to provide its dark fiber service to DISD. DISD is desirous of continuing to receive dark fiber service fi.om the CITY. In furtherance thereof, the CITY and DISD commit to enter into a meaningful dialogue to determine the best manner in. which to maintain their mutual commitment to this beneficial relationship on a long-term basis, no later than ninety (90) days from the date of this Agreement. ARTICLE IV TERMINATION OF AGREEMENT Either party may voluntarily terminate this Agreement at any time upon giving to the other party one hundred twenty (120) days written notice of such intention to terminate; Provided, however, that CITY and DISD agree that if DISD terminates this Agreement prior to the five (5) year extended term set forth in ARTICLE III, above, DISD will pay CITY a termination fee as specifically set forth below: First Year of Agreement $67,000 Second Year of the Agreement $15,000 Third Year of the Agreement $0 DME/DISD Extension To Interlocal Cooperation Agreement - Page 4 Fourth Year of the Agreement $0 Fifth Year of the Agreement $0 These termination payments shall be adjusted as appropriate for addition of new facilities to the WAN made during the term of this Agreement pursuant to ARTICLE V, §B. Either party may terminate this Agreement for cause by reason of the other party's material breach or default in the performance of this Agreement. The party seeking to terminate this Agreement under this provision shall provide the defaulting party written notice, specifically identifying the breach or default complained of, which notice shall provide the defaulting party a period of not less than thirty (30) days in which to cure such breach or default. In the event such breach or default is not fully cured within the time period specified, then the party seeking to terminate this Agreement shall provide the defaulting party with further written notice expressly specifying that this Agreement will be terminated if the breach or default is not wholly cured within ten (10) days after the receipt of the written notice by the alleged defaulting party. In the event that the defaulting party fails to cure the breach or default complained of, within the time specified, then this Agreement shall be terminated, and the party terminating this Agreement may seek appropriate legal relief. At the time of expiration or termination of this Agreement, the CITY shall remove all fiber optics connections at the DISD sites in a careful, prudent manner, unless otherwise mutually agreed. In the event the CITY terminates this agreement, without DISD's consent, prior to the expiration of its term, the CITY agrees to continue "dark" fiber service until such time that the CITY arranges for a commercial provider to establish service comparable to that of the CITY "dark" fiber system for the remaining term of this Agreement. The City shall pay for the difference in cost between the commercial provider's cost and the amount due to the CITY under this contract. ARTICLE VI CONSIDERATION TO BE PAID BY DISD TO THE CITY A. For Core WAN services shown in Exhibit "A", DISD shall pay to the CITY, beginning on the effective date of this Agreement a monthly payment of $16,989.94 and shall continue to pay such monthly payment amount to the CITY on the same date of each successive month thereafter, so long as this Agreement is in force and effect. B. The CITY and DISD contemplate that the Core WAN network shown in Exhibit "A" of this Agreement will be expanded in the foreseeable future as the DISD opens new schools and other school-related facilities. Accordingly, the CITY and DISD desire to provide for such eventuality and, upon mutual agreement between DISD and the CITY, a new DISD facility within the Denton Municipal Electric service area may be added to the WAN network for the term of this Agreement, at the rate of $362.00 per month, per DME/DISD Extension To Interlocal Cooperation Agreement - Page 5 new facility. Additionally, in the event that any such new DISD facility to be connected to the WAN is beyond six thousand (6,000) feet from the DISD core facility ("core facility") providing service, then the $362.00 per month rate shall be increased by an amount equaling $.06 per linear foot per month for each foot, which the new DISD facility exceeds the distance of six thousand (6,000) feet from the core facility along established Denton Municipal Electric right-of-way. Charges for any new DISD facilities outside established Denton Municipal Electric right-of-way shall be negotiated on a case-by-case basis. DISD and CITY agree that the termination fees set forth in ARTICLE IV, Section A. will be adjusted to reflect the City's investment in new facilities added pursuant to this Section VI.B. The CITY and DISD agree to cooperate and plan additions to Core WAN in a manner that will not result in increases in charges paid by DISD during a DISD budget cycle or decreases in revenue received by CITY during a CITY budget cycle, unless mutually agreed to by both the CITY and DISD. ARTICLE VII COMPLETION OF CONNECTION TO WAN/SUPERVISION The CITY may utilize such persons as may be necessary to act as inspectors or agents for the purpose of supervising, in the interests of the CITY, the materials furnished and the work done by DISD as construction of a project proceeds. ARTICLE VIII ACCEPTANCE OF THE CONNECTIONS/WAN BY DISD The CITY agrees to submit to DISD sufficient test data respecting all aspects of any additional line in order to establish satisfactory performance prior to utilization of the connection and acceptance by DISD. Once any such requested testing is complete, and DISD reasonably approves the test results, then DISD's acceptance of the line is complete. Acceptable test results will be defined as follows: An Optical Time Domain Reflectometer ("OTDR") shot must be provided for each individual fiber strand (end to end) and the results must be of a level of performance that adheres to the following specifications: The "redundant ring"/backbone OC-12 Single Mode Fiber Optic cable plant: Power Budget = 25db Distance <= 40km TX optical output power minimum of 2dBm maximum of-3dBm RX input sensitivity minimum of-10dBm maximum of-28dBm The "additional lines"/end nodes OC-3 Single Mode Fiber Optic cable plant Power Budget = 25db Distance <=40km TX optical output power minimum of-5dBm maximum of 0dBm DME/DISD Extension To Interlocal Cooperation Agreement - Page 6 RX input sensitivity minimum of-34dBm maximum of-10dBm ARTICLE IX USE OF PROPRIETARY INFORMATION All data exchanged between CITY and DISD in connection with this Agreement or in utilization of the Core WAN and any additional lines, which is identified as proprietary information, shall be safeguarded by CITY and DISD to the same extent as CITY or DISD safeguards like information relating to CITY's or DISD'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 nor DISD shall bear any responsibility for its disclosure, inadvertent or otherwise. CITY acknowledges that certain data peculiar to DISD contains personally identifiable information, as that term is defined by the Family Educational Rights and Privacy Act, concerning students. CITY agrees that in the event that such data comes into the CITY's possession that the CITY will not disclose to any individual or entity any personally identifiable information concerning students of DISD, unless the CITY is required to disclose this information as a result of an Order issued by a Court of competent jurisdiction. ARTICLE X OWNERSHIP AND CONTROL OF PROPERTY The CITY shall own and maintain all fiber optic cables which terminate at the points of demarcation at each DISD site. B. DISD shall own and maintain all electronic equipment located at each DISD site. DISD shall have the right to utilize the leased "dark" fiber optic cables comprising the redundant ring and connecting the DISD sites, so long as this Agreement is in force and effect. DISD agrees that it will not sell bandwidth to any other party. DISD further agrees that its use of the Core WAN and any additional lines will be consistent with that of a private line service user, and that DISD shall not offer access to the Core WAN or any additional lines to the public, and shall take reasonable action to establish procedures and protocols to assure that only authorized DISD personnel and DISD students are permitted access to the Core WAN and any additional lines. DISD shall not, under any circumstances, connect its WAN in any manner to CITY'S "lighted" fiber system. ARTICLE XI RESPONSIBILITY FOR MAINTENANCE DISD shall be solely responsible to determine the location of any problem within the DISD electronics network and to remedy such problem at DISD's sole cost and expense. In the DME/DISD Extension To Inteflocal Cooperation Agreement - Page 7 event that a problem arises solely within the fiber optic cable (the redundant ring or any additional lines emanating from the ring) or connections at any patch panels, DISD 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. ARTICLE XII CITY MAINTENANCE OF FIBER OPTIC CABLE Unless otherwise mutually agreed, Denton Municipal Electric Fiber Division will provide maintenance and repair service between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday (Normal Service Hours). Response time will normally be one hour. Maintenance and repair service applies to leased fibers only. Denton Municipal Electric Fiber Division employees will respond to DISD declared emergencies that occur outside of Normal Service Hours if requested to do so by the DISD Technology Information Officer or his authorized designee; DISD shall notify CITY in writing of such designation before such designation is effective. A charge of $15.00 per hour per employee responding will be charged for this service. This hourly charge will be escalated annually by applying the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index respecting the telecommunication/utility industry. In the event the DISD Technology Information Officer or his authorized designee requests Denton Municipal Electric Fiber Division response to emergencies that occur outside of Normal Service Hours, DISD agrees that a qualified DISD employee will also respond to said emergency. Do In the event that the CITY determines that it is reasonably necessary to perform maintenance on the fiber optic cable or within the CITY's network, then the CITY shall notify DISD at least twenty -four (24) hours in advance, if reasonably possible, of any periods of time the CITY determines is necessary for the CITY's network to be down. ARTICLE XIII DISASTER RECOVERY Unless otherwise determined by the Denton Mayor, Denton City Manager, or authorized Federal or State disaster recovery or Homeland Security Official, in the event of a disconnection of the WAN due to a natural disaster, such as a tornado, flood, or other catastrophic event, the CITY will re-establish connections to DISD at the earliest reasonable opportunity immediately after restoration of fiber service to the Denton Municipal Electric electric system, emergency services, law-enforcement, medical and health services, and other critical City functions. In all cases, taking into account that the safety and welfare of the citizens of Denton shall be the CITY's utmost priority in determination of restoration of service. In the event of a total loss of connectivity, the following is the recounection priority for DISD sites by importance: DME/DISD Extension To Interlocal Cooperation Agreement - Page 8 1. Technology Center 2. Ryan High School 3. McMath Middle School 4. Strickland Middle School 5. Denton High School 6. Fred Moore High School 7. Ronny Crownover Middle School 8. Calhoun Middle School 9. Transportation 10. Service Center 11. Hodge Elementary School 12. Borman Elementary School 13. EP Rayzor Elementary School 14. Evers Elementary School 15. Ginnings Elementary School 16. Houston Elementary School 17. Lee Elementary School 18. McNair Elementary School 19. Newton Rayzor Elementary School 20. Rivera Elementary School 21. Ryan Elementary School 22. Wilson Elementary School 23. Ann Windle School for Young Children 24. Central Services 25. Special Education 26. SKECC In the event of a partial loss of connectivity, the following is the reconnection priority to Multi-Homed Sites for DISD by importance: 1. Transportation 2. Service Center 3. Hodge Elementary School 4. Borman Elementary School 5. E.P. Rayzor Elementary School 6. Evers Elementary School 7. Ginnings Elementary School 8. Houston Elementary School 9. Lee Elementary School 10. McNair Elementary School 11. Newton Rayzor Elementary School 12. Rivera Elementary School 13. Ryan Elementary School 14. Wilson Elementary School 15. Ann Windle School for Young Children DME/DISD Extension To Interlocal Cooperation Agreement - Page 9 16. Central Services 17. Special Education 18. SKECC 19. Technology Center 20. Ryan High School 21. MeMath Middle School 22. Strickland Middle School 23. Denton High School 24. Fred Moore High School 25. Ronny Crownover Middle School 26. Calhoun Middle School ARTICLE XIV NOTIFICATION Upon DISD recognition of occurrence of an outage of the dark fiber system the DME Communications Manager shall be notified and a DME Tech shall be dispatched. In the event this level of response and notification is unable to satisfactorily respond to the needs of DISD the level of escalation of notification shall be: the DME Superintendent of System Operations, followed by the DME Assistant Director of Operations. Upon DME recognition of occurrence of an outage of the dark fiber system the DISD Technology Information Officer shall be notified. ARTICLE XV HOLD HARMLESS To the extent allowed by the Constitution and statutes of the State of Texas, and without waiving any immunity or limitation to liability, DISD agrees to and shall indemnify and hold harmless CITY, its officers, agents, and employees from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury or death of any person, or for damages to any property; real, personal, or intellectual, arising out of or in connection with the use, but not the installation or maintenance, of the fiber optic network the subject of this Agreement, where the injury or death or damage is caused by the negligence of DISD, its officers, agents, or employees, except that DISD assumes no liability for the sole negligent acts of CITY, its officers, agents, or employees. To the extent allowed by the Constitution and statutes of the State of Texas, without waiving any immunity or limitation to liability, the CITY agrees to and shall indemnify and hold harmless DISD, its officers, agents, and employees from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury or death of any person, or for damages to any property; real, personal, or intellectual, arising out of in conjunction with the installation or maintenance, but not the use, of the fiber optic network the subject of this Agreement, where the injury or death or damage is caused by the negligence of the CITY, its officers, agents or employees. DME/DISD Extension To Interlocal Cooperation Agreement - Page 10 ARTICLE XVI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties 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, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. ARTICLE XVII ASSIGNABILITY DISD shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the CITY, which consent shall not be unreasonably be withheld. CITY shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the DISD, which consent shall not be unreasonably be withheld. ARTICLE XVIII .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, return receipt requested, postage prepaid, or by facsimile transmission actually received, to: CITY: City Manager City of Denton 215 E. McKinney Denton, TX 76201 Fax: (940) 349-8596 DISD: Superintendent Denton Independent School District 1307 N. Locust Denton, Texas 76201 Fax: (940) 381-1093 Notices 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 XIX. DME/DISD Extension To Interlocal Cooperation Agreement - Page 11 MODIFICATION 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 section will not be waived unless as herein set forth. ARTICLE XX. SAVINGS 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 competent jurisdiction 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 XXI. GOVERNING 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 XXII ENTIRE AGREEMENT This Agreement and the exhibits 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 executed by the parties hereto. ARTICLE XXIII WAIVER 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 any such terms or conditions, but the same shall be and remain at all times in full force and effect. DME/DISD Extension To Interlocal Cooperation Agreement - Page 12 ARTICLE XXIV BINDING AUTHORITY This Agreement is entered into by the duly authorized officials of each respective governmental entity. ARTICLE XXV CAPTIONS 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. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Extension TO Interlocal Cooperation Agreement to be executed by its duly authorized Mayor on this the I day of February, 2003; and the Denton Independent School District has caused this Extension To Interlocal Co,o. peration Agreement to be executed by the President of its Board of Trustees on this the 11~2 day of February, 2003, but to be effective from and as of the 28th day of January, 2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY CITY OF DENTON, TEXAS A Texas Municipal Corporation EULINE BROCK, MAYOR APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY "DISD" DME/DISD Extension To Interlocal Cooperation Agreement - Page 13 ATTEST: DENTON INDEPENDENT SCHOOL DISTRICT BY: RI~OO~ent Board of Trustees DR. JEAN SCHAAKE, Secretary Denton Independent School District Board of Trustees APPROVED AS TO LEGAL FORM HAYES, COFFEY & BERRY, P.C. S:\Our Documents\Contracts\03~DISD Dark Fiber Contract- ~llfird Draft 011703-B.doc DME/DISD Extension To Interlocal Cooperation Agreement - Page 14