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Res 03-39 Authorizing a Contract with ATT for Access to the DuctbankTOWN OF WESTLAKE RESOLUTION NO. 03-39 A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, AUTHORIZING THE TOWN MANAGER TO ENTER IN A CONTRACT ON BEHALF OF THE TOWN WITH AT&T FOR ACCESS TO THE TOWN'S DUCT BANK. BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That the Board of Aldermen of the Town of Westlake does hereby authorize the Town Manager to enter into a contract on behalf of the Town with AT&T for access to the Town's duct bank. SECTION 2: That this Resolution shall become effective upon the date of its passage. PASSED AND APPROVED ON THIS 14TH DAY OF JULY 2003. ATTEST: AGingeArossy, Townecretary APPROVED AS TO FORM: Ceram Scott Bra ey, Mayor Trent O. Petty, anager July 28, 2003 VIA FEDERAL EXPRESS Ms. Dawn Lenzie Assistant to Town Manager Town of Westlake, TX 3 Village Circle Suite 207 Solana Westlake, TX 76262 Re: Conduit Lease Dear Ms. Lenzie: ATT 431 Ridge Road Dayton, NJ 08810 At the request of Anthony Giovannucci, enclosed please find one original Conduit Lease executed by TCG Dallas and the Town of Westlake, TX, along with an Officer's Certificate authorizing Mr. Giovannucci to execute the Conduit Lease. Vince Westbrook from our local office in Dallas will be sending the payment to you separately. Should you require anything further or have any questions, please contact me at 732-392-2845. Very truly yours, Theresa A. Pisciotti Senior Paralegal c� Recycled Paper OFFICER'S CER'T'IFICATE The undersigned, the duly authorized Vice President and General Counsel of TCG Dallas, a New York general partnership (the "Company"), does hereby certify that: the Company is an indirect wholly owned subsidiary of AT&T Corp,, and Anthony J. Giovannucci, Division Manager, is authorized to execute and deliver on behalf of the Company and to bind the Company to the terms and conditions set forth in that certain proposed Conduit Lease between the Company and Town of Westlake, TX , Dated this 23rd day of July, 2003. Thomas G. Dagger Vice President and General Counsel CONDUIT LEASE Between TOWN OF WESTLAKE, TEXAS And TCG DALLAS Proprietary and Confidential CONDUIT LEASE TABLE OF CONTENTS ARTICLE 1: BASIC PROVISIONS ...................... -- ......... ................................ 3 ARTICLE 2: ADDITIONAL DEFINITIONS......... ....................... - ..................... .... 5 ARTICLE 3: TERM AND COMMENCEMENT ............................ .................. ...... - 5 ARTICLE 4: BASE RENT, RENEWAL AND RATE ADJUSTMENT .................... 5 ARTICLE 5: USE AND COMPLIANCE WITH LAWS ............................................ 6 ARTICLE 6: INSURANCE, SUBROGATION, WAIVER OF CLAIMS, ............... 7 AND IDEMNIFICATION ...................... .......................... ......................................... 7 ARTICLE 7: CASUALTY DAMAGE ...................... -- ........... ................................. 8 ARTICLE 8: MULTI -DUCT AND CONDUIT ........................ - ............................. 10 ARTICLE 9: ASSIGNMENT AND SUBLETTING ............................................... 10 ARTICLE 10: LANDLORD'S REMEDIES ............................................................ 11 ARTICLE 11: TENANT'S REMEDIES ................................. .... - ........................... 12 ARTICLE 12: CONFIDENTIALITY AND PROPRIETARY INFORMATION ..... 12 ARTICLE 13: REPRESENTATIONS AND WARRANTIES .................................. 14 ARTICLE 14: VENUE AND GOVERNING LAW .................................................. 14 ARTICLE 15: FORCE MAJEURE .... ................................................................... ... 15 ARTICLE 16: ENTIRE AGREEMENT ............................ ....... -- .................. ....... 15 ATTACHMENT A - DUCTBANK ROUTING DRAWINGS AND DETAILS ...... 17 ATTACHEMENT B - DUCTBANK ACCESS PROCEDURES ........ ........ 18 ATTACHMENT C - MASTER RATE SCHEDULE......................................................... .................... ........ 21 Page 2of 21 Proprietary and Confidential CONDUIT LEASE THIS CONDUIT LEASE ("Lease") is made and entered into as of the day of , 2003 by and between the Town of Westlake, Texas ("Landlord") and TCG Dallas, a New York general partnership with offices at 5501 LBJ Freeway, Dallas, Texas 75240-6202 ("Tenant") ARTICLE 1: BASIC PRO'V'ISIONS This Article contains the basic lease provisions between Landlord and Tenant. A. Route: The route of the Conduit that is the subject of this Lease is as indicated on the Engineering Drawings that are appended hereto as Attachment `A' B. Commencement of Lease follows: July 14, 2003 C. D. E. F. G. Initial Term and Expiration Date: Rented Length: Size and Quantity: The Commencement Date for the Lease shall be as The initial term is 20 years, and expires on July 14 2023. am One 4" conduit Base Rent: Tenant shall pre -pay rent with a one-time, lump - sum payment (equal to $19.564 per linear foot of 4" conduit), of $163,711.55. Permitted Use: Facilities may be placed in the Conduit by the Tenant for the provisioning of communications and telecommunications services, including voice, data, video and internet services. H. Landlord: I. Landlord's Notice Address: Proprietary and Confidential Town of Westlake, Texas TownManager 3 Village Circle Suite 207, Solana Westlake, TX 76262 Page Sof 21 CONDUIT LEASE With copies to: Town Attorney Town of Westlake Boyle & Lowry, L.L.P. 4201 Wingren, Suite 108 Irving, TX 75062 J. Tenant: TCG Dallas K. Tenant's Notice Address: AT&T Local Network Services (TCG Dallas) 4100 Bryan St. 6th Fl. Dallas, TX 75204 Attn: Outside Plant Manager And to: AT&T Local Network Services (TCG Dallas) 429 Ridge Road Dayton, NJ 08810 Attn: General Counsel L. Rent Payments: Rent shall be paid to Landlord or such other parties and addresses as to which Landlord shall provide advance written notice. M. Attachments: This Lease includes and incorporates by this reference: Attachment A: Conduit Engineering Drawings Attachment B: Ductbank Access Procedures Attachment C: Master Rate Schedule N. Non-exclusion: This is a non-exclusive Lease in that Landlord may lease other ducts within the Ductbank to other Tenants and Tenants may lease ducts from other parties within the jurisdiction of the Town of Westlake as permitted by other leases. Leases entered into with other Tenants may not interfere in any manner with TCG's ability to provide service to its customers including increasing operational burdens or costs. Leases between the Landlord and its other Lessees must be competitively neutral and non-discriminatory when compared to this Lease Page 4of 21 Proprietary and Confidential CONDUIT LEASE provided however the lease rents may vary from lease to lease based on different duct lengths leased. ARTICLE 2: ADDITIONAL DEFINITIONS A. Conduit: The term "conduit" refers to a four inch (4") or two inch (2") pipe located within the Ductbank. The conduit leased under and pursuant to this Lease is described in Article 1 hereof, identified on the Engineering Drawings in Attachment A and is referred to herein as the "Conduit." B, Cell: The term "cell" refers to a multi -duct inner -liner within a conduit. The cells leased under and pursuant to this Lease are as indicated on the Engineering Drawings in Attachment A and are referred to herein as the "Cells." C. Duetbank: A bank or collection of several Landlord -owned conduit routed from manhole to manhole or pull box. D. Facilities: The term "Facilities" refers to innerduct, cables, wires and other appurtenances as determined by Tenant which Tenant shall place in Conduit rented hereunder in order to provide communications and telecommunications services. ARTICLE 3: TERM AND COMMENCEMENT A. Term: Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Conduit or Cells identified in Article 1, and described in Attachment A for the Term, subject to the other provisions of this Lease. The term of this Lease shall commence on the Commencement Date and end at 11:54 PM on the Expiration Date set forth in Article 1, unless sooner terminated as provided in this Lease. This Lease may be renewed as provided for in Article 4.B. ARTICLE 4: BASE RENT, RENEWAL AND RATE ADJUSTMENT A. Base Rent: Tenant shall pay Landlord the one time lump sum base rent set forth in Article 1 in advance on or before the execution of the Lease. B. Renewal: This Lease may be extended and renewed upon the written consent of both the Landlord and the Tenant, and such consent shall not be withheld by the Landlord without a justifiable cause presented in writing to the Tenant. Tenant shall have a minimum of 180 days from the receipt.of a termination notice issued by Landlord at the end of the Term to discontinue its use of the ductbank. Issues related to the Renewal Fee shall not be considered a justifiable cause for withholding consent to renew. Tenant may continue to occupy the Conduit leased hereunder after expiration of this Lease (during an "Interim Period") and shall pay, subject to refund by the Landlord, a mutually agreeable non-discriminatory monthly amount not less than the equivalent of the Rent for the original Term pro -rated on a monthly basis until the amount of the Renewal Fee is Page 5of 21 Proprietary and Confidential CONDUIT LEASE resolved. Landlord shall refund any fees paid by Tenant during the Interim Period that are greater than the agreed upon as the Renewal Fee, plus interest at the current rate that Tenant is required to pay on customer deposits, within 30 calendar days of such resolution of the Renewal Fee. The formula for determining the Renewal Fee shall include the following: (1) 100% of costs directly attributable to providing Conduit access to the Tenant, and performing maintenance on the Tenant's Conduit as required by the Tenant during the term of the prior, expiring lease. (2) May include the Tenant's proportional share of maintenance and repair costs, based upon a certified engineering study, of the existing ductbank during the term of the prior, expiring lease. This does not include legal fees or costs associated with negligence on the part of the Town or other parties, or costs recovered by the Landlord from third parties. Empty conduit or cells shall be included in determining this number, with those conduit or cells attributable to the Landlord. (3) May include a proportional share of general costs incurred by the Landlord during the term of the prior, expiring Lease for the maintenance and repair of the ductbank. These costs shall include legal fees, administration and oversight costs, and other costs necessary to maintain the Permitted Use of the ductbank. These general costs shall not exceed 1% of the Base Rent (4) The Tenant shall have a right to audit Landlord's costs supporting the Renewal Fee. (S) The Renewal Fee shall not include any recovery or return of initial capital investment by the Landlord. (6) No other costs may be included in the basis for determining the Renewal Fee. (7) The Renewal Fee shall constitute the rent for the Renewal Term. The Renewal Term(s) shall be the same length as the Initial Term ARTICLE 5: USE AND COMPLIANCE WITH LAWS A. Use of Conduit: Tenant shall use the Conduit only for the permitted use identified in Articles 1 and 2, and no other purpose whatsoever, subject to the other provisions of this Article and this Lease. Tenant may petition the Landlord to use the Conduit for other purposes, and if technologically feasible, approval shall not be unreasonably denied by the Landlord. B. Maintenance of Dactbank: Landlord shall at its sole cost maintain the physical structure of the Ductbank, including manholes, and shall provide a clean and safe working environment within the ductbank including the removal of water, mud, animals, Page hof 21 Proprietary and Confidential CONDUIT LEASE insects and other foreign matter, when manholes need to be accessed. C. Protection of Tenant Facilities within Ductbank: Landlord shall use best efforts to assure that Tenant's Conduit and Facilities within the Ductbank are protected from damage by other tenants and to allow efficient access by the Tenant to its .Facilities. D. Compliance with Laws: The parties shall comply with all laws of the State of Texas and the United States. Nothing in the Lease shall have the effect of eliminating or altering the parties' requirements to comply with all of the ordinances of the Town of Westlake, Chapter 283 of the Texas Local Government Code or Chapter 253 of the federal Telecommunications Act. In the event this Lease, or any of it's provisions or the operations contemplated hereunder, are found to be inconsistent with or contrary to any laws (now existing or hereinafter enacted), the law will be deemed to control and, if commercially practicable, this Lease will be regarded as modified accordingly and will continue in full force and effect as so modified. If such modified Lease is not commercially practicable, in the opinion of either party, then the parties agree to meet promptly and discuss any necessary amendments or modifications to this Lease. If the parties are unable to agree on necessary amendments or modifications in order to comply with any laws, then this Lease may be tenninated immediately by either party. ARTICLE 6: INSURANCE, SUBROGATION, WAIVER OF CLAIMS, AND IDEMNIFICATION A. Required Insurance: Each party shall maintain during the Term of the Lease: Commercial general liability insurance, with limits of not less than $1,000,000 for personal injury, bodily injury or death, and property damage or destruction (including loss of use thereof), combined single limit for one occurrence, and $2,000,000 in the aggregate per policy year, with endorsements: (a) for contractual liability hereunder, and (b) naming the other Party as additional insured. Landlord' property damage insurance shall cover the Ductbank and appurtenances to the extent provided or paid for by Landlord, and shall be in the amount of fall replacement cost. B. Certificates and Other Matters: Each Party shall provide the other with certificates evidencing the coverage required hereunder prior to the commencement Date, or Tenant's entry to the Ductbank, whichever first occurs. Such certificates shall state that such insurance coverage may not be reduced, canceled or allowed to expire without written notice to the other Party. Landlord and Tenant shall provide renewal certificates to the other prior to expiration of such policies. Except as provided to the contrary herein, any insurance carried by Landlord or Tenant shall be for the sole benefit of the party carrying such insurance. All insurance required hereunder shall be provided by responsible insurers licensed in the State of Texas and shall have a general policy holder's rating of at least A- (A minus) and a financial rating of at least [X] in the then current edition of Best's Insurance Reports. Each Party disclaims any representation as to whether the foregoing coverage will be adequate to protect Tenant. C. Self Insurance: The parties to this Lease acknowledge that Tenant may satisfy Page 7of 21 Proprietary and Confidential CONDUIT LEASE all requirements of Article 6 by maintaining and providing written evidence to the Landlord of a program of self insurance as permitted by the laws of the State of Texas. D. General Indemnity Provisions: Tenant agrees to indemnify, defend and hold harmless the Landlord and all of its officials, officers, agents, consultants, employees and invitees in their public capacities, from any and all liability, claims, suits, demands or causes of action, including all expenses of litigation and/or settlement which may arise by injury to property or person caused by the the gross negligence or willful misconduct of the Tenant, its officers, agents, consultants, employees or invitees, collectively, the "Tenant Parties" arising out of or in connection with the this Lease. Tenant will at it's own cost and expenses defend and protect Landlord and all of its officials, officers, agents, consultants, employees and invitees in both their public and private capacities, collectively the "Town Parties" from any and all such claims and demands. Also, Tenant agrees to and shall indemnify, defend and hold harmless the Town Parties, from and against any and all claims, losses, damages, causes of action, suit and liability of any kind, including all reasonable expenses of litigation, court costs and attorneys' fees for injury :to or death of any person or for any damage to any property arising out of or in connection with the error, omission, intentional or negligent acts of Tenant Parties under this Lease or any and all activity or use pursuant to the Lease. The foregoing shall not be applicable to that which is attributable to the negligence or willful misconduct of the Landlord, its employees or contractors. Nothing contained in this Lease shall waive Landlord's defenses or immunities under Section 101.001 et seq. of the Texas Civil Practice and Remedies Code or other applicable statutory or common law. Each parry to this Lease shall promptly notify the other parry of any alleged claims and will fully cooperate in the defense of any such claim. E. Landlord's Liability to Tenant: Landlord's liability to Tenant, if any, for damages alleged pursuant to the obligations, terms, and conditions of this Lease, shall not exceed the insurance amounts in Article 6, Section A, hereto. Nothing contained in this Lease shall waive Landlord's defenses or immunities under Section 10 1.00 1 et seq. of the Texas Civil Practice and Remedies Code or other applicable statutory or common law. F. Tenant's Liability to Landlord: Tenant's liability to Landlord, if any, for damages alleged pursuant to the obligations, terms, and conditions of this Lease, shall not exceed the insurance amounts in Article 6, Section A, hereto. Nothing contained in this Lease shall waive Tenant's defenses or immunities under the Texas Civil Practice and Remedies Code or other applicable statutory or common law. ARTICLE 7: CASUALTY DAMAGE A. Restoration: (1) The parties shall promptly notify each other of any damage to the Ductbank by fire, trenching equipment, or other casualty. If the Ductbank or any of its appurtenances are damaged by fire or other casualty, Landlord shall use available insurance proceeds to restore the same. Landlord will, in a reasonable amount of time, make every reasonable Page 8of 21 Proprietary and Confidential CONDUIT LEASE attempt to restore the Ductbank to substantially the same condition as prior to the casualty. (2) In case of damage to the Ductbank, Landlord will make every reasonable attempt to promptly restore the Ductbank. Where Tenant or any of their agents, employees, or contractors were the sole cause of the damage, the Tenant shall pay 100% of the reasonable, actual and direct cost of restoration including but not limited to straight time labor, overtime labor, materials, material expediting fees, and supervision. If Landlord does not initiate repairs within one (1) hour and complete such repairs in a timely manner, Tenant may begin such repairs itself and Landlord agrees to reimburse Tenant the reasonable cost of all such .repairs. (3) When damage to the Ductbank by casualty has occurred, and when notice and coordination are practicable, the parties shall coordinate repair and other work operations in emergency situations involving service disruptions. Disputes will be immediately resolved at the site by the affected parties present in accordance with the following principles: a. Emergency service restoration work requirements shall take precedence over other work operations. b. Except as otherwise agreed upon by the parties, restoration of lines necessary to alleviate life-threatening situations shall be given the highest priority. Secondary priority shall be give to restoring lines for emergency service providers (e.g., 911, fire, police, and national security and hospital lines). Third priority shall be given to restoring lit fibers of the local service providers, on a rotating basis.. The parties shall exercise good faith in assigning priorities, shall base their decisions on the best information then available to them at the site in question, and may, by mutual agreement at the site, take other factors into consideration in assigning priorities and sequencing service restoration activities. c. Landlord shall determine the order of precedence of work operations only if the affected parties present are unable to reach prompt agreement, provided, however, that these decisions shall be made by Landlord on a nondiscriminatory basis in accordance with the principles set forth in this section. B. 'Termination of Lease by Landlord; Notwithstanding the foregoing to the contrary, in lieu of performing the restoration work, Landlord may in the event of a total casualty, elect to terminate this Lease by notifying Tenant in writing of such termination within thirty (30) days after the date of damage (such termination notice to include a termination date providing not less than thirty (30) days notice to Tenant). Landlord shall provide a reasonably comparable location within the public right-of-way to relocate those Page Sof 21 Proprietary and Confidential CONDUIT LEASE portions of Tenant's facilities that are not accessible or useable by termination. Such reasonable location not include a ductbank, conduit or cells, but, only a physical location in the public right-of-way. In such case, the Tenant shall be entitled to a refund of the prorated portion of the pre -paid rent paid hereunder by Tenant in advance. C. Termination of Lease by Tenant: Notwithstanding Paragraph B above, Tenant may terminate this Lease if Tenant is unable to use all or a substantial portion of the leased Ductbank as a result of fire or other casualty not caused by Tenant or its employees or agents, and (i) such work is estimated to take more than fifteen (15) days, or (ii) Landlord fails to substantially complete restoration work within thirty (30) days from the date the casualty occured. In order to exercise any of the foregoing termination rights, Tenant must send Landlord at least fifteen (15) days advance notice specifying the basis for termination, and such notice must be given no later than thirty (30) days following the occurrence of the condition serving as the basis for the termination right invoked by Tenant. Upon receipt of termination notice from the Tenant, Landlord shall provide the Tenant with a reasonably comparable location within the public right-of-way for the Tenant to relocate its facilities. Such termination rights shall not be available to Tenant if. (a) Landlord substantially completes their repairs to the Ductbank within Landlord's thirty (30) day period to substantially complete restoration to the damaged portion of the Ductbank, or (b) Landlord permanently provides Tenant with reasonably comparable alternate ducts within the Ductbank route or an alternate route reasonably acceptable to Tenant. Landlord shall reimburse the Tenant the greater of the cost to relocate any Facilities or a prorated portion of the lease payment made in advance. D. Permits: Landlord shall expedite approval of any required permits due to termination of Lease by either party provided that Tenant complies with all applicable local, state and federal requirements. ARTICLE 8: MULTI -DUCT AND CONDUIT Tenant shall conduct a physical inspection of the Conduit prior to accepting the Conduit and installing its Facilities. Once Tenant accepts the Conduit, Tenant accepts the conduit. "as -is." Tenant may install cells, at its discretion, at no cost to the Landlord, subject to submittal of Tenant's plans and specifications for written approval by Landlord. ARTICLE 9: ASSIGNMENT AND SUBLETTING A. Tenant shall have the right to assign this Lease, provided Tenant notifies Landlord., to (i) an entity which controls, is controlled by or is under common control with Tenant, or (ii) to any entity which succeeds to substantially all of its assets or equity of Tenant, and the assignee executes an agreement assuming this Lease. In addition, notwithstanding anything to the contrary contained herein, Tenant shall have the right to allow third parties the right to transmit signals and/or data over or otherwise use Tenant's Facilities, B. With respect to all other transfers or assignments of this Lease, Tenant shall not, Page 10of 21 Proprietary and Confidential CONDUIT LEASE without the prior written consent of Landlord, which consent will not be unreasonably withheld or delayed by Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien to attach to, or otherwise transfer, this Lease or any interest hereunder. C. Tenant shall notify Landlord of any such transfer or assigrunent in wniting, which notice shall include: (a) the effective date of the transfer or assignment, (b) the portion of the Conduit to to which the Lease transfer or assignment applies, (c) the name, address, and background information concerning the proposed Transferee, (d) an assignment and assumption agreement signed by the Transferee, whereby the Transferee assumes all obligations, terms, and conditions of this Lease relating to the assigned Conduit, and (e)the nature of Transferee's business and proposed use of the Conduit, if different from the Tenant's. Any transfer made without complying with this Article shall, at Landlord's option, be null, void, and of no effect, or shall constitute a Default under this Lease. D. There shall be no additional compensation demanded or authorized by the Landlord for any Transfer or Assignment of this Lease from either the Tenant or the Transferee that is not specifically addressed in this lease. ARTICLE 10: LANDLORD'S REMEDIES A. Default: Either party shall be in default hereunder in the event such party has not begun and pursued with reasonable diligence the cure the breach of this Lease within thirty (30) days of the receipt of written notice from the other party of the breach. B. Remedies: (1) Upon the occurrence of any uncured material event or events of default, whether enumerated in this paragraph or not, the non -defaulting party shall have the option to pursue any one or more of the following: (i) terminate this Lease (Tenant's right of use, entry and possession may be terminated only by detainer suit, summary proceedings or other lawful means), (ii) perform whatever obligations the other party is obligated to perform under the terms of this Lease, and to the defaulting party shall reimburse the other party for any reasonable expenses incurred in performing the defaulting party's obligations, (iii) recover any unpaid rent or on a pro -rata basis any pre -paid rent, as the case may be as of the date use is terminated, (iv) recover any unpaid rent which thereafter accrues during the Term from the date use is terminated through the time of judgment (or which may have accrued from the time of any earlier judgment obtained by Landlord), less any consideration received from replacement tenants, (v) recover any other reasonable amounts necessary to compensate the non -defaulting party for all damages proximately caused by defaulting party's failure to perform its obligations under this Lease, including reasonable attorney's fees and costs. (2) In the event one party terminates the other party's right of use pursuant to .Page 11 of 21 Proprietary and Confidential CONDUIT LEASE this Article, Tenant agrees to remove its facilities within ninety (90) days of termination, or as soon as reasonably practical, if demanded by the Landlord. Should Tenant fail to remove facilities, Landlord may, at the Tenant's expense, remove Tenant's facilities from the Ductbank. (3) NEITHER PART' SHALL BE LIABLE TO OTHER FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND LOST REVENUES. ARTICLE 11: TENANT'S REMEDIES A. Default: Landlord shall be in default hereunder in the event Landlord has not begun and pursued with reasonable diligence the cure of any failure of Landlord to meet its obligations hereunder within thirty (30) days of the receipt by Landlord of written notice from Tenant of the alleged failure to perform. B Remedies: Upon the occurrence of any event or events of default by Landlord, whether enumerated in this paragraph or not, Tenant shall have the option to pursue any one or more of the following: (i) termination of this Lease; and (ii) exercising all other remedies available to Tenant at law or in equity, including without limitation, injunctive relief of all varieties. Notwithstanding the foregoing, if (i) Landlord's default hereunder creates an emergency or creates conditions which if uncured will impair or impede Tenant's ability to provide telecommunications services, and (ii) Landlord has not commenced or does not diligently proceed to cure such default, then Tenant may, after two (2) business day's written notice to Landlord, take whatever actions are necessary to commence curing the default(s), and Landlord agrees to reimburse Tenant for any reasonable expenses incurred in effecting compliance with Landlord's obligations, including reasonable attorney's fees and costs. ARTICLE 12: CONFIDENTIALITY AND PROPRIETARY INFORMATION A. In connection with this Lease, either party may furnish to the other certain information that is marked or otherwise specifically identified as proprietary or confidential ("Confidential Information"). This Confidential Information may include, among other things, private easements, licenses, utility agreements, leases, permits, other right-of-way granting documents, specifications, designs, plans, drawings, data, prototypes, and other technical and/or business information. For purposes of this Section, the party that discloses Confidential Information is referred to as the "Disclosing: Party", and the party that receives Confidential Information is referred to as the "Receiving Party". If the Receiving Party is the Landlord, the Landlord shall fully comply with the Texas Open Records Act in protecting the release of confidential or proprietary information, and will promptly notify the Disclosing Party of such request for disclosure. Page 12of 21 Proprietary and Confidential CONDUIT LEASE B. When Confidential Information is furnished in tangible form, the Disclosing Party shall mark it as proprietary or confidential. When Confidential Information is provided orally, the Disclosing Party shall, at the time of disclosure or promptly thereafter, identify the Confidential Information as being proprietary or confidential. C. With respect to Confidential Information disclosed under this Lease, the Receiving Party and its employees shall: (1) To the extent allowed by law, hold the Confidential Information in confidence using procedures no less stringent than those used with respect to its own proprietary, confidential and private information of a similar nature, subject to the terms of this Lease. For the purpose of this Article 12, Landlord shall comply with any ruling made by the Texas Attorney General pursuant to the Texas Public Information Act. Landlord shall not be required to take any action beyond this section to keep information confidential; (2) restrict disclosure of the Confidential Information solely to those of its employees who have a need to know in connection with the performance of this Lease, and not disclose the Confidential Information to any other person or entity except as required by law; (3) advise those employees of their obligations with respect to the Confidential Information, (4) use the Confidential Information only in connection with the performance of this Lease, except as the Disclosing Party may otherwise agree in writing except as allowed by law, (5) promptly notify the Disclosing Party of the request for the Confidential Information D. Upon written request of the Disclosing Party, the Receiving Party shall return all Confidential Information received in tangible form, except that each party's legal counsel may retain one copy in its files solely to provide a record of such Confidential Information for archival purposes. If the Receiving Party loses or makes an unauthorized disclosure of Confidential Information, it shall notify the Disclosing Party and use reasonable efforts to retrieve the Confidential Information. E. The Receiving Party shall have no obligation to preserve the proprietary nature of Confidential Information which: (1) was previously known to the Receiving Party free of any obligation to keep it confidential; or (2) is or becomes publicly available by means other than unauthorized disclosure; or Page 13of 21 Proprietary and Confidential CONDUIT LEASE (3) is developed by or on behalf of the Receiving Party independently of any Confidential Inforroation furnished under this Lease; or (4) is received from a third party whose disclosure does not violate any confidentiality obligation. F. Unless required by law, neither party shall disclose the other party's customer Confidential Information to any third party (even if under contract to that party) or to any personnel of the party responsible for publicity or for end user sales or marketing. G. If the Receiving Party is required to disclose the Disclosing Party's Confidential Information by an order or lawful process of a court or governmental body, the Receiving Party shall promptly notify the Disclosing Party, and shall cooperate with the Disclosing Party in seeking reasonable protective arrangements before the Confidential Information is produced. ARTICLE 13. REPRESENTATIONS AND WARRANTIES A. Each party represents and warrants that; (i) it has full right and authority to enter into, execute, deliver, and perform its obligations under this Lease; and (ii) its execution of and performance under this Lease shall not violate any applicable existing regulations, rules, statues or court orders of any local, state or federal governmental agency, court or body. B. Landlord further represents and warrants that. (i) it has all rights and authorizations necessary to construct the Ductbank and to lease Conduit to Tenant; (ii) that it has obtained any and all real property rights necessary to install the Ductbank and to enter upon the property on which the Ductbank is located, and to permit Tenant to enter. Landlord shall use best efforts to maintain such rights throughout the Term. If Landlord fails to obtain and/or cause to remain effective throughout the term of this Lease all required real property rights necessary for Tenant's use of the Ductbank, Tenant may terminate the Lease, without further obligation, by giving the Landlord thirty (30) days written notice. In the event of such termination, Landlord shall provide a reasonably comparable location within the public right-of-way to relocate those portions of Tenant's Facilities that are not accessible or useable as a result of such a termination. Such reasonable location may not include a ductbank, conduit or cells, but, only a physical location in the public right-of-way. In such case, the Tenant shall be entitled to a refund of the prorated portion of the lease payment made in advance. ARTICLE 14: VENUE AND GOVERNING LAW This Lease shall be governed by the laws of the State of Texas and any applicable Federal law, This Lease will be enforceable in Tarrant County, Texas; if legal action is necessary to enforce this Lease, venue will lie in Tarrant County, Texas, with the U.S. District Court for the Northern District of Texas, or with any regulatory body of competent jurisdiction; e.g., the Public Utility Commission of Texas, the Federal Communications Commission. Page I4of 21 Proprietary and Confidential CONDUIT LEASE ARTICLE 15: FORCE MAJEURE Neither Landlord or Tenant, as the case may be, shall be liable or responsible for any damages or delays in performance due to strikes, riots, acts of God, any act of terror or civil disturbance, shortages of labor or materials, war, or any other cause whatsoever beyond the control of Landlord or Tenant, as the case may be. ARTICLE 16: ENTIRE LEASE This Lease, together with the Attachments and other documents listed in Article 1 (WHICH ARE HEREBY COLLECTIVELY INCORPORATED HEREIN AND MADE .A PART HEREOF AS THOUGH FULLY SET FORTH), contains all the terms and provisions between Landlord and Tenant relating to the matters set forth herein and no prior or contemporaneous Lease or understanding pertaining to the same shall be of any force or effect, except for any such contemporaneous written Lease specifically referring to and modifying this Lease and signed by both parties. TENANT HAS RELIED ON TENANT'S INSPECTIONS AND DUE DILIGENCE IN ENTERING THIS LEASE, AND NOT ON ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE CONDITION OR SUITABILITY OF THE DUCTBANK FOR ANY PARTICULAR PURPOSE OR ANY OTHER MATTER NOT EXPRESSLY CONTAINED HERE. This Lease, including the Exhibits referred to above, may not be modified, except in writing signed by both parties. Without limitation as to the generality of the foregoing, Tenant hereby acknowledges and agrees that Landlord's leasing agents and field personnel are only authorized to show the Ductbank and potential routes and negotiate terms and conditions for leases subject to Landlord's final approval, and are not authorized to make any Leases, representations, understandings or obligations binding upon Landlord respecting the condition of the Ductbank, suitability of the same for Tenant's business, or any other matter, and no such Leases, representations, understanding or obligations not expressly contained herein or in such contemporaneous Lease shall be of any force or effect. Page 15of 21 Proprietary and Confidential CONDUIT LEASE IN WITNESS WHEREOF, the Parties have executed this Lease as of the date first set forth above. LANDLORD: TOWN OF WESTLAKE, TEXAS By; Trent O. Petty, Town Mana5" TENANT: TCG Dallas a New York General Partnership By; ► p Name Anthony . Giovannucci Its: I01./'' ' u " � 4. ( /t --- CERTIFICATE I, 'as of the aforesaid Tenant, hereby certify that the individual(s) executing the foregoing Lease on behalf of Tenant was/were duly authorized to act in his/their capacities as set forth above, and his/their actions(s) are the action of Tenant. (Seal) Page I hof 21 Proprietary and Confidential CONDUIT LEASE ATTACHMENT A to Conduit Lease Between Town of Westlake, Texas and TCG Dallas CONDUIT ENGINEERING DRAWINGS Page l7of 21 Proprietary and Confidential AT&T POINT OF ENTRX �1 nmff an LEGEND DUCT TO BE UTILISED BY ATGT ------EXISTING DUCT BANK (NOT UTILIZED BY AT&T) 7, 901 L. F. 4" DUCT TO BE UTILIZED PER THIS, AGFt�NT j IbNx a M1nExryl gflU `u�. { � 1 NOTE, ► CONNECTION TO MANHOLE AT POINT OF ENTRY NO, 2 WILL i REQUIRE INSTALLATIONOF f R.O.W. AND MANHOLE BYii_ BETWEEN ATST. a A1V 9ti iGlJ.N sH \f a� Q ° La N BEND DA- �{' L)RTysp X0 FARM DENO` 41? 14IMEN SPRINGS CT. CT. �t o G'T 7 F 1 sEuprric sru.E :'-suuv� D I 0 5D0 9000 i5D0 j�ill 10;1;10� EXHIBIT TOWN OF, WESTLA E TELECOlafMCATIONS YUCT BANK AT&T JOSE AGREaENT TOWN OF WE57LAKE DENTON COUNTY, TLXA5 TARRANT COUNTY, TEXAS [ GONSLILT) G ENGINU RS i &hoAtes inc PUWNERS 600 SIX FLAGS nwvE, sures Soo Ai2UNGi4N, TF]dM 76017 (877) U40-9535 mow ar 6xS pF1aYx7 �. 99B-1fl0� BST nam G6-25 03 ME M. i OF 1 J: �Westl�ke�l]ircth�nk\aktaxhfUit.iara a d Q5 Win {il i a o a-a—z (n =y M z ' CL l�UO E Z ID —0 1P1 E- C; m N L:D�4 .4 ru MT N a n O FSI Liz tSJHF- z M�4U�] � QE�f]l�Lb sa 0� >-m rL 4mLOLtii QF�� z z z U i 1 °�5'•°1 L]f"i tzz may✓]•'"�✓�����.yy�11�¢Y.]: up VJ `�°���p�•`•]Y� � 4a1 W �'i J° fy`f�`KJ•�•�-. ��''° � �F�tj 7J 1 Jl�ll. • � �.. •�p rY .• A_ -_ CONDUIT LEASE ATTACHMENT B to Conduit Lease between Town of Westlake, Texas and TCG Dallas DUCTBANK ACCESS PROCEDURES Town of Westlake NOC Procedures Prepared by: B. Eisenach Procedure: DUCTBANK ACCESS 3, Ll SCOPE Procedure No.: 5.3 Page: Date: Approved: Revision Date: Revision: This procedure defines the means and methods of access the Town's ductbank system. 3.1.2 RESPONSIBLITIES The Landlord or his designee is responsible for establishing, approving, and managing an organization to operate an access request system and provide escort services during tenant access to the ductbank system 3.1.3 PROCEDURE 3.1.3.1 GENERAL All access to the ductbank system must be granted through the means of an Access Request. Upon granting of access to a point in the ductbank system, an authorized representative of the Town must observe tenant access at all times. In an emergency situation Tenant, after attempting to notify the Landlord or his designee, is permitted to access the ductbank in order to begin emergency repairs without an Access Request. The Landlord or his designee will provide access within one (1) hour of notification by Tenant of the emergency condition. 3.1.3.2 AUTHORIZED ACCESS LIST The Landlord or his designee is responsible for maintaining an Authorized Access List for Tenants and Tenant's subcontractors including emergency contact phone numbers, pager numbers, etc. The Tenant is responsible for providing up to date information, revisions, and corrections to the Landlord or his designee. Pagel Sof 21 Proprietary and Confidential CONDUIT LEASE 3.1.3.3. ACCESS REQUEST Except in an emergency situation, an access request form must be filled out and submitted to the Landlord or his designee prior to accessing the ductbank system. The access request form shall include the following: 1. Name and Company of requestor,. 2. Name of Company representing if requestor is a subcontractor. 3. Authorizing contact for Tenant. 4. Date and time of request. 5. Date and Time access is needed. 6. Reason for access. 7. Traffic control plan where access points are in or near roadways. 8. Where there is Restricted Entry, a safety and emergency plan shall be included. See Exhibit 3.1.3.-1 - Access Request Form In an emergency situation only, Tenant shall call the Town of Westlake Department of Public Safety at 817-430-0941. This number maybe changed as appropriate by written notice to Tenant. Town of Westlake NOC Procedures Procedure: DUCTBANK ACCESS 3.1.3.4 APPROVAL Procedure No.: 5.3 Page: DRAFT Prepared by: B. Eisenrich Date: Approved: Revision Date: Revision: Once an access request is received by the Landlord or his designee, the Landlord or his designee shall verify the validity of the access request. This shall only include verifying the requestor against the Authorized Access List. If the requestor is on the authorized list, the requestor shall be granted access. If the requestor is not on the authorized Access List, Landlord or his designee shall contact the Tenant's representative for written authorization prior to granting access. In the event of an emergency, if notice by Tenant is practical under the circumstances, the Landlord or his designee may grant access to non -authorized personnel upon verbal authorization of the Tenant's emergency contact. The Landlord or his designee shall provide access within two (2) hours during normal business hours (Sam — 5 pm Monday -Friday, excluding published Landlord holidays) and Page 19of 21 Proprietary and Confidential CONDUIT LEASE within one (1) hour during emergency restoration requirements. 3.1.3.5 ESCORT The Tenant's representative performing work shall be escorted at all tunes by an authorized representative of the Town. The Town representative shall be responsible for witnessing that the persons requiring access work on only the proper media at the access point. The Escort may not in any way inhibit the Tenant's employee(s) or contractor(s) from performing work. 3.1.3.6 RESTRICTED ENTRY In accordance with State and Federal Occupational and Safety Laws, access to manholes within the system is considered Restricted Entry. As such, Tenant's representatives shall follow all State and Federal requirements for Restricted Entry. The granting of access by the Town also grants restricted access. However, the Town does not assume responsibility or liability for Tenant's representatives' health and welfare. Job safety is the responsibility of the Tenant's representative's health and welfare. Job safety is the responsibility of the Tenant's representative. Landlord shall be responsible for maintaining the ductbank in a safe condition as well as providing a clean and safe work area within the ductbank. Town personnel are authorized to enter manholes. Town personnel will monitor work in manholes from the surface. Town personnel are prohibited from performing any maintenance, repair, or other activity to, or affecting, the Tenant's facilities within the ductbank. 3.1.3.7 WORD ON CABLES The Town's representative shall log all personnel involved, start time, end time and any other information that may be deemed necessary. 3.1.4 EXHIBITS 3.1.2.4 Access Request Form (to follow) 3.1.3.-2 Ductbank Access Observation Form (to follow) Page 20of 21 Proprietary and Confidential CONDUIT LEASE ATTACHMENT C to Conduit Lease betweenTown of Westlake, Texas and TCG Dallas Master Rate Schedule Town of Westlake Telecommunications Duct Bank Lease Terms Duct Bank Facilities at Precinct Line Road, Kirkwood Blvd, & Sam School Road (Phase I - 2000) Interest Rate Used for Table 1 Lease Terms= 5.0% Annual cost decreases by 4% for each 5 year increment increase in the lease term. Page 21 of 21 Proprietary and Confidential 5 Years 10 Years 15 Years 20 Years 25 Years Size Annual Lump Sum Annual Lump Sum Annual Lump Sum Annual Lump Sum Annual Lump Sum (in) $ILF(VLF) ($/LF) $fLF) ($ILF $ILF(VLF $ILF) ($fLF) ($ILF 314 $ 0.418- $ 1.808 $ 0.402 $ 3.101 $_ 0.386 $ 4.008 $ 0.371- ---- $ 4.627 --------------------------- $ -0.357 - $ 5.031 ------- 1-112 1--1/2-.$ - $--0.776-_ - $-_3.358------ -- $ 0.746--- $-..-5-'758 _ $ 0717 _7.442 $ 0.689$---8.592-- $--0.663$__9.343-- - -- 2 $ 0.882 $- 3.818 $ 0.848 $ 6.547 1_$_- $ 0 815 $ 8.462 $ 0.784 $ 9.769 -$--0-.754-.$-10-.623 - - $ 19.564 1 4 $ 1.766 $ 7.645 $ 1.698 $ 13.111 $ 1.633 $ 1 6. 94 6 $ 1.570 $ 1.509 1 $ 21.275 Interest Rate Used for Table 1 Lease Terms= 5.0% Annual cost decreases by 4% for each 5 year increment increase in the lease term. Page 21 of 21 Proprietary and Confidential