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HomeMy WebLinkAboutItem 14 - Fiber Optic Cable Installation MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: BRUNO RUMBELOW, CITY MANAGER MEETING DATE: MAY 15, 2018 SUBJECT: APPROVAL OF A RESOLUTION TO ESTABLISH AN INTERLOCAL AGREEMENT WITH THE CITY OF COLLEYVILLE RECOMMENDATION: City Council to consider a resolution authorizing an interlocal agreement between the City of Colleyville and the City of Grapevine for fiber optic cable installation in the City of Colleyville. FUNDING SOURCE: This action will have no material effect on City funds. BACKGROUND: This request is for approval of an Interlocal Agreement (ILA)between the City of Colleyville and the City of Grapevine in order to participate in fiber optic cable installation in Colleyville by the City of Grapevine staff.The City is authorized by the Interlocal Cooperation Act Texas Government Code, Chapter 791, and Texas Local Government Code, Section 271.101 and 271.102, to enter into interlocal agreements for the performance of governmental functions and services. Purpose of the ILA Facilitate the construction and installation of a joint conduit and fiber system Maximize shared route with GCISD for cost savings Colleyville Construction Responsibility Provide reasonable access to Colleyville right-of-way Provide any permitting required for right-of-way Provide locations for bedding gravel and excavation spoils storage Provide personnel to help with fiber pull after construction Grapevine Construction Responsibility Install Fiber Conduit System within the Colleyville right-of-way Back-fill and level all excavated ground and clean work area Repair of any damaged conduit system during installation All costs related to fiber installation in Colleyville will be recovered. Colleyville's participation is estimated to be $528,929.75 Staff recommends approval. LPF/TA A 'r7,t y ao R49 + I — — — ' FM 2499 I —j/• '1\14'4- ,-.\ 4 i:-Iirs. i:., 41 LI -k:' a, . � Rt Y71:.e pp,, , % s'k. r `. 1 ' (tt`DOVE RD L - -' 47 vc `'S i pi II MS� ' i a` 1 E0 • . 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Grapevine City Limits RESOLUTION NO. 2018-043 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS, AUTHORIZING THE CITY MANAGER OR THE CITY MANAGER'S DESIGNEE TO ENTER INTO AN INTERLOCAL AGREEMENT WITH THE CITY OF COLLEYVILLE AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Grapevine, Texas is a local government in the State of Texas and as such is empowered by the Texas Local Government Code, Section 271.101 and 271 .102 and Interlocal Cooperation Act Texas Government Code, Chapter 791 to enter into interlocal agreements with other qualified entities in the State of Texas; and WHEREAS, the City of Colleyville is a qualified entity as authorized by Section 271.102 of the Texas Local Government Code; and WHEREAS, the City of Grapevine, Texas has requested to enter into an interlocal agreement with the City of Colleyville for fiber optic cable installation by the City of Grapevine in the City of Colleyville; and WHEREAS, all constitutional and statutory prerequisites for the approval of this resolution have been met, including but not limited to the Open Meetings Act; and WHEREAS, the City Council deems the adoption of this resolution to be in the best interests of the health, safety, and welfare of the public. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That all matters stated hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. Section 2. That the City Manager or his designee is authorized to take all steps necessary to consummate an interlocal agreement with the City of Colleyville. Section 3. That this resolution shall take effect from and after the date of its passage. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on this the 15th day of May, 2018. APPROVED: William D. Tate Mayor ATTEST: Tara Brooks City Secretary APPROVED AS TO FORM: City Attorney IResolution No. 2018-043 2 STATE OF TEXAS INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION BY THE CITY OF GRAPEVINE IN THE CITY OF COLLEYVILLE This Interlocal Agreement (hereinafter the "Agreement") is entered into by and between the CITY OF COLLEYVILLE (hereinafter "Colleyville") and the CITY OF GRAPEVINE (hereinafter "Grapevine"), which are both home rule municipal corporations and political subdivisions of the State of Texas. Colleyville and Grapevine are referred to herein as individually as a "Party" and collectively as the "Parties." There are no other parties to this Agreement; however, both Colleyville and Grapevine acknowledge that the Interlocal Agreement Between Colleyville and GCISD for Fiber approved by Colleyville's City Council on March 7, 2017 has a practical relationship to this Interlocal Agreement between Colleyville and Grapevine to the extent that some of the facilities referred to below will be constructed, at least in part, for the benefit of GCISD. RECITALS WHEREAS, Grapevine and Colleyville desire to execute this Interlocal Agreement pursuant to the Interlocal Cooperation Act, Chapter 791 of the Texas Government Code, as amended, and in accordance with purchasing statutes regulating the Parties and subject to availability of current revenues; and WHEREAS, the Interlocal Cooperation Act authorizes governmental entities to enter into Interlocal cooperation agreements for administrative and governmental functions and services; and WHEREAS, Grapevine and Colleyville agree that both Parties shall make payments for the performance of governmental functions or services under this Agreement from current revenues then available to the paying Party; and WHEREAS, the Colleyville and Grapevine desire to install, have, and maintain a fiber optic conduit system to carry out their respective governmental functions and each have determined it necessary and beneficial to share a common conduit system within their respective public rights-of-way where practicable; and NOW, THEREFORE, for and in consideration of performance of the mutual covenants, obligations, and undertakings of and by each of the respective Parties to this Agreement, Grapevine and Colleyville agree as follows: PAGE 1 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION DEFINITIONS Unless the context clearly indicates a different meaning, the words and phrases set forth in this Article I shall have the following meanings when used in this Agreement: "Access Point" shall mean the area immediately surrounding a Pull Box facility and/or other facility location where one Party's responsibility for the Conduit System Facilities ends and other Party's begins. "Colleyville" shall mean the City of Colleyville, Texas. "Grapevine" shall mean the City of Grapevine, Texas. "GCISD" shall mean the Grapevine-Colleyville Independent School District. "GCISD Agreement" shall mean the Interlocal Agreement between Colleyville and GCISD for Fiber approved by Colleyville's City Council on March 7, 2017, a copy of which is attached hereto as Exhibit E. Colleyville and Grapevine hereby acknowledge and agree that any use of the term "Contractor" in the GCISD Agreement or between the parties to this Agreement shall not change Grapevine's status as a municipal corporation and political subdivision of the State of Texas in this Agreement with the same governmental immunity and equal position as a governmental entity as enjoyed by Colleyville. "Conduit System" shall mean the entire conduit system, including the Facilities as defined herein, to be installed and maintained for the benefit of Colleyville and GCISD as depicted in the map attached hereto, and incorporated herein, as Exhibit A. The portion of the Conduit System located on Colleyville's real property shall be owned and maintained by Colleyville and GCISD subject to the GCISD Agreement and subject to the right of Grapevine to pull sufficient fiber optic cable through the conduit system to connect public safety radio sites located in Grapevine and Colleyville. "Equipment" shall mean the tools, machinery, and motor vehicles used to install the conduit system, including equipment such as a bore rig, trucks, back trailer, fiber pulling equipment, or other such machinery or equipment. "Effective Date" shall mean the date this Agreement bears the signatures of the authorized representatives of all of the Parties, whether on one or multiple counterparts. "Expiration Date" shall mean the last date of the Initial Term or Renewal Term of this Agreement, as the case may be. PAGE 2 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION I "Fiber" or "Fiber Optic" shall mean the optics of light transmission through very fine, flexible glass rods by internal reflection. "Facilities" shall mean the physical facilities comprising the Conduit System, including any conduit, fiber optic strands, hand holes, or manholes used for the Conduit System, trunk lines, pull boxes or any other part of the fiber optic system. "Glade Road Project" shall mean the installation of fiber conduit facilities to occur within Colleyville along the portion of Glade Road located in Colleyville from a starting point beginning at the western side of its intersection with Bransford Road and extending to the eastern side of its intersection with Manning Drive. Colleyville shall be solely responsible for hiring the contractor and administering the work for the Glade Road Project. "Highway 26 Project" shall mean the installation of fiber conduit facilities to occur within Colleyville along the entire portion of Highway 26 located within Colleyville upon which TxDOT performs the installation of the fiber conduit facilities. "Project" shall mean the installation of the Conduit System in Colleyville pursuant to the terms of this Agreement. "Pull Box" and "Access Point" have the same meaning and are defined to mean the location of the point in the ground nearest the facility where the responsibilities of the "Conduit System" end and begin depending on the Party identified. "Rights-of-Way" shall mean the rights-of-way and/or other real property interest within the incorporated limits of Colleyville where Colleyville has lawful access to install and maintain Colleyville utilities, including the Conduit System. "TxDOT" shall mean Texas Department of Transportation, including its authorized contractors, licensees and/or agents. II. PURPOSE The purpose of this Agreement is to memorialize both Parties' mutual agreement for Grapevine to construct and install; Colleyville to fund and maintain; and both Parties to use a common Conduit System for fiber optic cable within Colleyville's territorial jurisdiction. PAGE 3 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION III. RIGHTS OF THE PARTIES; PROJECT LOCATION 3.1 Ownership of Conduit System. Except as otherwise provided in this Agreement, Colleyville and GCISD shall jointly own the Conduit System, including the conduit, fiber optic lines, and other Facilities installed pursuant to this Agreement that are also subject to the GCISD Agreement and subject to the right of Grapevine to pull sufficient fiber optic cable through the conduit system to connect public safety radio sites located in Grapevine and Colleyville. Where two or more conduits exist within the jointly owned areas of the Conduit System, both Colleyville and GCISD shall have sole ownership of one (1) complete conduit and may agree to divide ownership of any additional remaining conduits pursuant to the GCISD Agreement. Colleyville's ownership of the Conduit System shall terminate at each designated Access Point located in Colleyville's right-of- way, outside a GCISD building. Colleyville's ownership of the Conduit System and all previously referenced parts of same shall not extend into the territorial jurisdiction of Grapevine. 3.2 Conduit System for Colleyville, GCISD, and Grapevine Use Only. The Conduit System in Colleyville shall be exclusively used by Colleyville and GCISD, and by Grapevine to the extent necessary to connect public safety radio sites located in Grapevine and Colleyville. 3.3 Project Location. Both Parties have identified the best routing for the Conduit System which is depicted on the map attached hereto as Exhibit "A." Both Parties understand and agree that the Committee identified in the GCISD Agreement may review and amend this map on an ongoing basis prior to and during the Term of this Agreement. 3.4 Rights-of-way. Colleyville shall provide Grapevine with reasonable access to Colleyville's Rights-of-Way for the installation of the Conduit System at all locations where there is no conflict with existing users and there is available space. Grapevine shall not be responsible for acquiring additional rights-of-way, easements, or other property rights wholly located outside of the incorporated limits of Grapevine in order to install the Conduit System. Colleyville has and will have exclusive control over the rights-of-way directly related to this Agreement. Colleyville and Grapevine will coordinate conduit locations within the designated Rights-of-Way. Colleyville will provide Grapevine with a single point of contact for managing Rights-of-Way issues. 3.5 Access Points. The locations of all of Colleyville's Access Points shall be designated by Colleyville in consultation with Grapevine. The locations of all GCISD's Access Points shall be designated by GCISD in consultation with Grapevine and pursuant to said Interlocal Agreement between Colleyville and GCISD. Notwithstanding the foregoing, Grapevine shall not be required to install Access Points in any location deemed by PAGE 4 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION I Grapevine to require unreasonable costs. Each Access Point will generally consist of a Pull Box or similar access facility within a Colleyville Right-of-Way at or near Colleyville or GCISD's building and/or real property. Pulling of fiber optic cable from each Access Point designated by Colleyville to the termination point shall be Colleyville's responsibility. Pulling of fiber optic cable from each Access Point designated by GCISD to the termination shall be GCISD's responsibility. 3.6 Parties to be Independent. It is understood and agreed by and between the Parties that each, in satisfying the conditions of this Agreement, is acting independently, and that neither assumes responsibility or liability to any third party in connection with these actions. All work to be performed by Grapevine pursuant to this Agreement shall be in the capacity of an independent local governmental entity, and not as an agent or employee of Colleyville or GCISD. Each Party shall supervise the performance of its own personnel and shall be entitled to control the manner and means by which its services are to be performed, subject to the terms of this Agreement. Iv. PROJECT SPECIFICATIONS 4.1 Specifications. The Conduit System Facilities shall conform with specifications provided in Exhibit "B" attached hereto. 4.2 Installation. Grapevine shall perform installation for the Project, including the two (2) conduits, the vaults on the main conduit trunk line to provide access to the conduits, and shall pull the fiber through the conduit assigned to Colleyville and to GCISD. Grapevine will pull fiber optic cable through the conduits to the pull boxes and access points for up to six (6) months after completion of the installation of the conduits in Colleyville. Colleyville shall, upon request and seven (7) days prior written notice, provide bedding gravel from a location in Colleyville and an operator with equipment to load the bedding gravel into a dump truck operated by Grapevine. Grapevine shall unload the bedding gravel from the dump truck as needed at Project sites. Colleyville shall provide one or more locations in Colleyville where excavation spoils from Project sites can be dumped. Grapevine shall transport and dump the excavation spoils from Project sites to the location designated by Colleyville. Upon request and seven (7) days prior written notice by Grapevine, Colleyville will provide up to five (5) Colleyville personnel, subject to availability, to assist Grapevine personnel in pulling fiber optic cable through the conduit systems installed in Colleyville or Colleyville may pay for temporary labor reasonably required pull fiber optic cable through the conduit systems and such payment shall be separate and apart from the Dedicated Fund and funds specified in Exhibit "C". It is anticipated that such assistance will continue for up to five days at a time. Such Colleyville personnel that are provided shall at all times remain the responsibility of and the employees of Colleyville. PAGE 5 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION I 0 4.3 Restoration. Upon completion of each portion of the Conduit System as specified in Exhibit "B", Grapevine shall back-fill and level the ground for all of the Project's holes and clean the work area. Colleyville shall be responsible for any further Project restoration including sod replacement. Restoration work under this Agreement shall comply with the applicable specifications in Exhibit B. Colleyville shall, upon reasonable request and prior written notice, provide back-fill material to Grapevine for use on this Project at a location in or reasonably near Colleyville and Colleyville shall provide an operator with the necessary equipment or machinery to load the back-fill material into a Grapevine truck. 4.4 System Compatibility. Colleyville will ensure that the portions of the Conduit System installed within Colleyville's Rights-of-Way located within both the Glade Road and Highway 26 Project locations are compatible with the Conduit System to the extent necessary for Colleyville and GCISD to be able to connect and run their respective Facilities throughout those locations. Colleyville shall be responsible for the work and costs associated with any modifications to the Conduit System located within Colleyville's Rights-of-Way in these two locations to the extent necessary to ensure such compatibility. Colleyville shall have sole discretion to determine the scope and work to be performed in connection with Colleyville's obligations under this Section 4.4. 4.5 Equipment. Equipment required for installation shall be acquired by Grapevine. Equipment for the repair and maintenance of Colleyville buildings shall be the responsibility of Colleyville. Equipment identified as part of the fiber project that will be used for the installation of conduit and fiber optic cable is described in Exhibit "D". The cost of additional equipment required outside of Exhibit "D" will be Colleyville's sole expense. 4.6 Standard of Care. Grapevine shall use commercially reasonable care while performing the work under this Agreement. 4.7 Permitting. Colleyville will be responsible for applying for any required permits or licenses or other permission that may be required; however, if required by the permitting agency, both Colleyville and GCISD will sign, when necessary, any required permit application. Both Colleyville and GCISD will share in initial or ongoing costs for any required permits, license or other permission that may be required. Grapevine will not be responsible for any cost related to permits required for the Project within the territorial jurisdiction of the City of Colleyville. PAGE 6 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION V. MAINTENANCE & REPAIR SERVICE; COST APPORTIONMENT 5.1 Responsibility for Location Services. During the Term of this Agreement and subject to Exhibit "C" of this Agreement, Colleyville and GCISD will coordinate and provide all location services. Colleyville may enter into an agreement with a third party to provide such services, the terms of which shall be at Colleyville's sole discretion and expense. 5.2 Maintenance, Damage and Repair Generally. Colleyville shall be responsible for the general maintenance and repair cost for all Conduit System Facilities located on Colleyville property, provided, Grapevine shall be responsible for repairs associated with any damages caused by the acts or omissions of Grapevine to any portion of the Conduit System during installation of the Conduit System on Colleyville and/or GCISD property until any given portion of the Conduit System is completed. As portions of the Conduit System are completed, Grapevine's responsibility for repair of any completed portions of the Conduit System will end. A portion of the Conduit System, as specified in writing by Grapevine, will be considered completed when the specifications in Exhibit B for said portion of the Conduit System have been substantially met and the work has been accepted, in writing, by Colleyville; provided, that such acceptance shall not be unreasonably withheld. 5.3 Damage After Completion of Grapevine's Work. During the term of this Agreement, if any portion of any of the Conduit System in Colleyville's Right of-Way is damaged after Grapevine's work on that portion of the Conduit System was completed, Colleyville shall be responsible for hiring its own contractor to perform all required repairs. A portion of the Conduit System will be considered completed when the specifications in Exhibit B for that portion of the Conduit System have been substantially met. VI. PROJECT ADMINISTRATION; COMPENSATION A Dedicated Fund and a Committee to administer this Project have been established under the terms and conditions set forth in Article VI of the GCISD Agreement attached as Exhibit E. Project schedules, payment terms, and all other administrative matters not expressly addressed in this Agreement shall be administered by the Committee in accordance with the relevant provisions contained in Exhibit "C" of this Agreement. PAGE 7 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION VII. DISPUTE RESOLUTION; MEDIATION 7.1 Dispute Resolution. The Parties agree that the Parties will attempt to resolve disputes relating to the Project and this Agreement in the following manner: (i) first the Parties will meet in the Committee to attempt resolution; (ii) if no resolution is achieved by the Committee, the dispute will be heard at a meeting of each Parties' City Manager or designee; (iii) if no resolution is achieved after the dispute is heard by the designated parties designees, then the dispute will be heard by an independent mediator; and (iv) if no resolution is achieved after meeting with a mediator, then the dispute will be resolved in the appropriate Court. Either Party may proceed directly to Court if this dispute process would unduly delay or interfere with the Party's timely filing of one or more causes of action in court. 7.2 Mediation. Should mediation occur, the Parties shall agree on the mediator to be used and each Party agrees to equally share the cost for the mediator's services. Each Party is responsible for its own expenses related to mediation, including legal representation. VIII. TERM & TERMINATION 8.1 Term. The Initial Term of this Agreement shall begin on the Effective Date and shall end the earlier of the date of completion of the Project or four (4) years from the Effective Date, unless earlier terminated in accordance with the provisions contained herein. The Parties may agree to one or more one (1) year renewal terms of this Agreement (each a "Renewal Term") by mutual written agreement any time prior to the Expiration Date. 8.2 Termination. This Agreement terminates on the Expiration Date, and may, prior to the Expiration Date, be terminated upon any one or more of the following events: (a) by written mutual agreement of both Parties; or (b) by either Party, after thirty (30) days written notice to the other Party, if for any reason funds are not expressly and specifically allocated to cover each Party's prospective obligations under this Agreement in each Party's approved budget in any fiscal year subsequent to that in which each Party's funds for this Agreement were first allocated; provided, however, that in no event shall such a termination be effective earlier than the last date for which the terminating Party's funds have already been so allocated under an existing approved budget; or PAGE 8 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION (c) by either Party in the event the other Party breaches any of the terms or conditions of this Agreement and such breach is not cured within thirty (30) calendar days after written notice thereof; provided however, if such breach cannot reasonably be cured within such thirty calendar (30) day period, such breaching Party shall be allowed additional time (not to exceed thirty (30) additional calendar days) to cure such breach, so long as the breaching Party begins the cure within the initial thirty (30) calendar days and diligently pursues the cure to completion within sixty (60) calendar days after written notice of such breach; or (d) through no fault of Colleyville, Grapevine has performed no work on the Project for a period of twelve (12) consecutive months after the installation work of the Agreement has begun on the real property of Colleyville. 8.3 Refund Upon Termination. In the event that this Agreement is terminated by Colleyville pursuant to Section 8.2(c) or (d) above, neither Grapevine nor the Committee shall be entitled to receive any subsequent annual payments under this Agreement. Except as otherwise provided in this Article, including section 8.4 below, Grapevine and the Committee shall have no obligation to refund to Colleyville any annual amount (or portion thereof or interest accrued thereon) previously paid by Colleyville to the Dedicated Fund. 8.4 Rights Upon Termination. Upon expiration or termination of this Agreement for any reason, Colleyville and Grapevine shall retain ownership of their respective rights and obligations as set forth herein. A full and final accounting of all funds and expenditures in the Dedicated Fund, established pursuant to Article VI of this Agreement, shall be completed and all remaining net balances and/or remaining obligations owed hereunder shall be distributed and/or allocated accordingly within ninety (90) days of the Expiration Date or termination of this Agreement, as the case may be. IX. MISCELLANEOUS 9.1 Notice. Any notice required to be sent under this Agreement must be in writing and may be served by depositing same in the United States Mail, addressed to the Party to be notified, postage pre-paid and registered or certified with return receipt requested, or by delivering the same in person to such Party via a hand-delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the Parties are as follows: PAGE 9 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION I U If to Colleyville, to: City Manager Colleyville City Hall 100 Main ST Colleyville, TX 76034 If to Grapevine, to: City Manager Grapevine City Hall 200 S. Main ST Grapevine, TX 76051 9.2 Governing Law and Venue. The validity of this Agreement and any of its terms and provisions as well as the rights and duties of the Parties shall be governed by the laws of the State of Texas; and venue for any action concerning this Agreement shall only lie in State of Texas District Courts in Fort Worth, Tarrant County, Texas. The Parties hereby affirmatively agree to submit to the personal and subject matter jurisdiction of said courts. 9.3 Party Responsibility. To the extent allowed by law, and without waiving any governmental immunity available to the Parties under Texas law, or any other defenses the Parties are able to assert under Texas law, each Party agrees to be responsible for its own negligent or otherwise tortious acts or omissions in the course of performance of this Agreement. The covenants, obligations and liabilities of the Parties shall be several and not joint or collective. Each of the Parties shall be individually responsible for its own covenants, obligations and liabilities herein. It is not the intention of the Parties to create, nor shall this Agreement be construed as creating a partnership, association, joint venture or trust, as imposing a trust or partnership covenant, obligation or liability on or with regard to any of the Parties. 9.4 Immunity. It is expressly understood and agreed that, in the performance of this Agreement, none of the Parties waive, nor shall be deemed hereby to have waived, any immunity or defense that would otherwise be available to them against claims arising in the exercise of governmental powers and functions. By entering into this Agreement, the Parties do not create any obligations, express or implied, other than those set forth herein, and this Agreement shall not create any rights in any persons or entities who are not parties to this Agreement. The Parties expressly acknowledge and agree that the construction, operation, and use of the Facility constitute a governmental function pursuant to the Texas Tort Claims Act, as amended. 9.5 Entire Agreement. This Agreement represents the entire agreement among the Parties with respect to the subject matter covered by this Agreement. There is no other collateral, oral or written agreement between the parties that in any manner relates to the subject matter of this Agreement. PAGE 10 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION I 9.6 Exhibits. All exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. In the case of any conflict between this Agreement and the Exhibits, this Agreement shall govern. 9.7 Recitals. The recitals to this Agreement are incorporated herein. 9.8 Amendment. This Agreement may only be amended by the mutual, written agreement of both Parties. 9.9 Questions from the Public; Public Information Act Request. Colleyville acknowledges that it is Colleyville's responsibility to respond to questions or concerns expressed by Colleyville's citizens on any issues related to the Project including, but not limited to, general questions or concerns about the Project, its construction/installation schedule, and the type or quality of work being performed to carry out the terms and conditions of this Agreement. Notwithstanding the foregoing, both Parties agree to comply with Chapter 552 of the Texas Public Information Act. 9.10 Severability. In the event, any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. 9.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. 9.12 Assignment. Neither Party may assign, transfer, or otherwise convey this Agreement without the prior written consent of the other Party. 9.13 Consents. Unless expressly stated otherwise, whenever the consent or the approval of a Party is required herein, such Party shall not unreasonably withhold, delay, or deny such consent or approval. 9.14 Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period of time following the termination of this Agreement shall survive termination. 9.15 Source of Payment. Each Party paying for the performance of governmental functions or services pursuant to this Agreement must make those payments from current revenues available to the paying Party or from funds otherwise lawfully available to the Party for use in the payment of the Party's obligations pursuant to this Agreement. PAGE 11 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION 9.16 Purchasing. The Parties agree that each Party shall abide by any and all competitive purchasing laws applicable to the Party initiating the construction, maintenance or repair of the system. The Parties further agree that all payments shall be from the designated fund. 9.17 Force Majeure. No Party shall be liable to any or all of the other Parties for any failure, delay, or interruption in the performance of any of the terms, covenants, or conditions of this Agreement due to causes beyond the Party's respective control or because of applicable law, including, but not limited to, war, nuclear disaster, strikes, boycotts, labor disputes, embargoes, acts of God, acts of the public enemy, acts of superior governmental authority, floods, riots, rebellion, sabotage, terrorism, or any other circumstance for which a party is not legally responsible or which is not reasonably within its power to control. The affected Party's obligation shall be suspended during the continuance of the inability then claimed, but for no longer period. To the extent possible, the Party shall endeavor to remove or overcome the inability claimed with all reasonable dispatch. 9.18 No Additional Participating Parties. No additional parties or other governmental entities may become parties under the terms of this Agreement. 9.19 Insurance. It shall be each Party's individual responsibility to obtain any and all insurance coverage necessary for the Project. 9.20 Captions. The captions to various clauses of this Agreement are for informational purposes only and in no way alter the substance of the terms and conditions of this Agreement. 9.21 Contra Proferentem. The legal doctrine of contra proferentem shall not apply to this Agreement and therefore any ambiguity in the terms of this Agreement shall not be interpreted against the author or draftsman of this Agreement. Both Parties affirmatively acknowledge that each has had the opportunity to consult with their respective legal counsel. 9.22 Authority to Execute. Both individuals executing this Agreement on behalf of their respective Parties below represent to each other and to others that all of the appropriate and necessary actions have been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the Party for which his or her signature appears; that there are no other parties or entities required to execute this Agreement in order for this Agreement to be an authorized and binding contract on the Party for whom the individual is signing this Agreement; that each individual affixing his or her signature hereto is lawfully authorized to do so and that such authorization is valid and effective i on the date that the individual signs this Agreement on the following page. PAGE 12 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION EXECUTED hereto on the date(s) shown below. City of Grapevine, Texas City of Colleyville, Texas By: By: William D. Tate, Mayor Richard Newton, Mayor Attest: Attest: Tara Brooks Christine Loven Grapevine City Secretary Colleyville City Secretary APPROVED AS TO FORM: APPROVED AS TO FORM: John F. Boyle, Jr. Whitt L. Wyatt City Attorney City Attorney Boyle & Lowry, LLP Nichols, Jackson, Dillard, Hager & Smith L.L.P. (W W:3042:3.29.18:96341 v4) LIST OF EXHIBITS Exhibit A — Conduit System Map Exhibit B — Specifications of the Conduit System Installation Exhibit C — Conduit and Fiber Systems Estimates Exhibit D — Fiber Project Equipment Exhibit E — GCISD Agreement Exhibit F — ILA between Grapevine and GCISD referenced in Exhibit E PAGE 13 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION EXHIBIT A CONDUIT SYSTEM MAP PAGE 1j INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION i ■ ■ ■ C ■ '4 ■ ■ 0,* ....:4 0 I I 0 11,„ t&Ar IF- 4' V,4sit,' ' niliqt dui .•=40 4; K a► ,� .t ■ 114 . 0,, ,,: 61 . f ..: ,, ),.. . , s 4,.. , Att., : t s $ �' a . P 574, ri - • • , : 419 $ . . ■ ! ' !..1.. - w . i , `• t. r, tY 11• • a. ,. -.c _, s . . iikr, ' .- . v - •I Lane - T 4. fw' i ,e• .h�. , .' . `; , , • ' •' M j ?s�■ t •* to. 66 y - li 11 0 COY* Ne , 4r _.4.10:',. .• - r , •,a.. ..., ir.: ,,,„ . r ,-,,,701 .. ik, . . , „,„ - itt IA 006""11 w '' ■ T•.. . .. _ -V ., 4.- sem ,` l';'.'''t 1t/. 1 JI . �• + i=ms ' „, 11 ■ r_ e ' i6y1f. piAt s . a .a •I ' a , - 4-4 -••• 4 __ lithtit il • Jo, . , , le-- 10 . 11 s.4r mitAilAdig, littiglip - : 4.,.. ' . °L, 4 , s • .. 4.4* 5..sli- /Ilk : 'it I CrKrw•+ di 1:1 -. -+... ` 1 . P ,, r r ,• . sss . 'ma' ' II' --,i,littlilLe„. IV lit110". l' 'fr: .C:Niiit*I' • - • JAI kit JiE - -- i t p� ` *1 ' s ;' T Mit't't.L 1 :' •'i -I ' f ,li f . ‘ • ... 1°gr..; !kki 001filiir 1 I `i. . a. T . ..14/t. I4 Taj'.irdij4°, 0.a ,IIIIr ' "e*'&'4'111•46 • • • • 1.1 iii.i.kiti• 7, +� k. 0. „. .� ■ .#,'. �r yew - AL- -Ir ■ � p _aye tal . '� ++ ■ .. :. sl 6 + i„*.re , _,- •■ . _ _moi EXHIBIT B SPECIFICATIONS OF THE CONDUIT SYSTEM INSTALLATION 1. Depth of conduit will usually be between 24" and 30", but may vary depending on obstacles. Depth of conduit shall not be shallower than 18". 2. Place two 1 1/4" high density polyethylene resin standard dimension ratio conduit 11 ("HDPE SDR 11"). 3. Color of conduit shall be Black and Orange. Pipe shall be solid in color. Pipe with only tracer line showing color shall not be used. 4. Only number 30's, 45's or 90's shall be used (pipe bends or turns). 5. Any change of direction will be made via Pull box or bending conduit in a sweeping radius that shall be no shallower than 36". 6. Minimum pull box size shall be 48"x36"x24" deep. 7. Maximum distance between pull boxes shall be 1,500 feet. 8. Pull boxes shall typically sit on 9" of gravel and, depending on location, but may have a 10" concrete apron. 9. Separate pull boxes shall be set for Colleyville and GCISD. Conduit will terminate in respective boxes. 10.When setting pull boxes/terminating conduit, a 1 1/4" conduit plug shall be placed in the end of the conduit to prevent debris from entering before the fiber is installed. Duct tape shall not be used in place of conduit plugs. 11.After the fiber has been installed, a split conduit plug shall be placed in each conduit to prevent debris from entering. 12.Place a 3" marked tube above ground warning of an underground fiber optic cable route at least every 3,000 feet along the conduit route. 13.A tracer wire of a minimum of a 10 AWG solid copper clad orange shall be placed with conduit. Tracer wire shall be continuous and without splices. If tracer wire insulation is damaged during installation, the damaged tracer wire shall be replaced. 14.A minimum of 50' of cable shall be stored in each pull box regardless of splice cans. 15.A fiber splice can shall be placed in the pull box whenever a splice is made. This splice can shall be sized to match the strand count of the cable. 16.A fiber splice tray sized for the number of splices at that location shall be placed in the fiber splice can. 17.Splices shall be made in a clean environment, typically in the splice trailer. 18.RESTORATION: Grapevine shall back-fill and level the ground for all of the Project's holes, but Colleyville shall be responsible for any further Project restoration. PAGE 15 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION EXHIBIT C CONDUIT & FIBER SYSTEM ESTIMATES Linear Colleyville Footage Footage Cost per LF Total Total 51,930 Colleyville Conduit + Pulling Fiber 25,723 $13.50 $347,260.50 Conduit + Pulling Fiber Shared with GCISD 20,754 $6.75 $140,089.50 Pulling Fiber Shared with GCISD in 3rd Party 5,453 $1.25 $6,816.25 Conduit for Glade Road Only Colleyville Fiber- 48 strands 51,930 $0.51 $26,484.30 Equipment Cost: ($584,457/276,000 feet=$2.12/ft) • Colleyville Conduit + Pulling Fiber 25,723 $2.12 $54,532.76 • Conduit + Pulling Fiber Shared with GCISD 20,754 $1.06 $21,999.24 Labor Cost increase for temp labor (5 employees) • Colleyville Conduit + Pulling Fiber 25,723 $1.52 $39,098.96 • Conduit + Pulling Fiber Shared with GCISD 20,754 $0.76 $15,773.04 Total Estimated $652,054.55 Project Cost Credit for Conduit Installed by TX DOT @ Glade & 18,080 $6.81 ($123,124.80) Hwy 26 Net Estimated $528,929.75 Project Cost Based on the above calculations, Colleyville shall make an initial payment of$250,000 and two payments of$139,464.88. However, as outlined in the Agreement, the Committee may adjust the amount of each payment. However, as outlined in the Agreement, the Committee may adjust the amount of each payment. PAGE 11 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION EXHIBIT D FIBER PROJECT EQUIPMENT Equipment Description Division Notes 15515 Vacuum Trailer Traffic 2015-Vactron 15615 Drill Machine/Bore Traffic 2016-Vermeer 15715 Trailer-(Belshe) Traffic 2015-Belshe 15115 Splice Trailer Traffic 2015-Rollingstar-12ft 15626 Service Truck w/Tool Body Traffic 2016-F-550 15636 Pick-up w/Dump Bed Traffic 2016-F-550 PAGE 17 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION EXHIBIT E GCISD AGREEMENT PAGE 18 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION EXHIBIT E STATE OF TEXAS § INTERLOCAL AGREEMENT BETWEEN THE CITY OF § COLLEYVILLE AND THE GRAPEVINE-COLLEYVILLE COUNTY OF TARRANT § INDEPENDENT SCHOOL DISTRICT FOR FIBER This Interlocal Agreement(the "Agreement") is entered into by and among the CITY OF COLLEYVILLE, TEXAS ("City") a municipal corporation and the GRAPEVINE- COLLEYVILLE INDEPENDENT SCHOOL DISTRICT ("GCISD"), and located partially within the City of Colleyville and jointly,referred to as the"Parties." RECITALS WHEREAS, GCISD and the City execute this Interlocal Agreement pursuant to the Interlocal Cooperation Act, Chapter 791 of the Texas Government Code, as amended, and in accordance with purchasing statutes regulating the Parties and subject to availability of current revenues; WHEREAS,the Interlocal Cooperation Act authorizes governmental entities to enter into interlocal cooperation agreements for administrative and governmental functions and services; WHEREAS,the Parties agree that any Party paying for the performance of governmental functions or services under this Agreement shall make those payments from current revenues available to the paying Party; WHEREAS,the City and GCISD desire to install, have and maintain a fiber optic conduit system to carry out their respective governmental functions and each have determined it necessary and beneficial to share a common conduit system within their respective public rights-of-way where practicable; and NOW, THEREFORE, for and in consideration of performance of the mutual covenants, obligations and undertakings by each of the respective Parties to this Agreement the Parties agree as follows: 1. DEFINITIONS Unless the context clearly indicates a different meaning,the words and phrases set forth in this Article I shall have the following meanings when used in this Agreement: "Access Point" shall mean the area immediately surrounding a Pull Box facility and/or other facility location where one Party's responsibility for the Conduit System Facilities ends and other Party's begins. "City" shall mean the City of Colleyville, Texas. PAGE 1 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE GRAPEVINE-COLLEYVILLE Lv'DEPENDENT SCHOOL DISTRICT FOR FIBER "Conduit System"shall mean the entire conduit system, including the Facilities as defiled herein,to be installed and maintained for the benefit of the City and GCISD as depicted in the map attached hereto as Exhibit A. The portion of the Conduit System located on GCISD property shall be solely owned and maintained by GCISD and the portion of the Conduit System located on City property shall be solely owned and maintained by the City; provided that portions of the Conduit System located within the City's Rights-of-Way defined herein shall be owned and maintained jointly and severally by the Parties. "Contractor" shall mean the City of Grapevine, Texas. "Equipment" shall mean the tools, machinery, and motor vehicles used to install the conduit system, including equipment such as a bore rig, trucks, back trailer, fiber pulling equipment, or other such machinery or equipment. "Effective Date" shall mean the date this Agreement bears the signatures of the authorized representatives of all of the Parties,whether on one or multiple counterparts. "Expiration Date" shall mean the last date of the Initial Term or Renewal Term of this Agreement, as the case may be. "Fiber" or "Fiber Optic" shall mean the optics of light transmission through very fine, flexible glass rods by internal reflection. "Facilities" shall mean the physical facilities comprising the Conduit System, including any conduit, fiber optic strands, innerduct, hand holes or manholes used for the Conduit System, trunk lines,pull boxes or any other part of the fiber optic system. "GCISD" shall mean the Grapevine-Colleyville Independent School District. "Glade Road Project"shall mean the installation of fiber conduit facilities to occur within the City along the portion of Glade Road located in Colleyviile from a starting point beginning at the western side of its intersection with Bransford Road and extending to the eastern side of its intersection with Manning Drive. The City shall be solely responsible for hiring the contractor and administering the work for the Glade Road Project. "Highway 26 Project" shall mean the installation of fiber conduit facilities to occur within the City along the entire portion of Highway 26 located within the City upon which TxDOT performs the installation of the fiber conduit facilities. "Innerduct" shall mean the flexible tube conduit through which glass fiber strand cable may be installed. "Multi-duct" shall mean all portions of the Conduit System that has been sectioned into either two or more innerducts. PAGE 2 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE GRAYEVLNE-COLLEYVILLE INDEPENDENT SCHOOL DISTRICT FOR FIBER "Project" shall mean the installation of the Conduit System in the City of Colleyville pursuant to the terms of this Agreement. "Pull Box" and "Access Point" have the same meaning and are defined to mean the location of the point in the ground nearest the facility where the responsibilities of the "Conduit System" end and begin depending on the Party identified. "Rights-of-Way"shall mean the rights-of-way and/or other real property interest within the incorporated limits of the City where the City has lawful access to install and maintain City utilities, including the Conduit System. "TxDOT" shall mean Texas Department of Transportation, including its authorized contractors, licensees and/or agents. H. PURPOSE The purpose of this Agreement is to memorialize the Parties Agreement to fund, construct, install, maintain and use a common Conduit System for fiber optic cable within the joint and several jurisdictions of the Parties. III. RIGHTS OF THE PARTIES; PROTECT LOCATION 3.1 Ownership of Conduit System. Except as otherwise provided in this Agreement, the City and GCISD shall jointly own the Conduit System,including the conduit, innerduct,multi- duct,fiber optic lines and other Facilities installed pursuant to this Agreement. Where two or more innerducts exist within the jointly owned areas of the Conduit System, each Party shall have sole ownership of one (I) complete innerduct and may agree to divide ownership of any additional remaining innerducts. The City's ownership of the Conduit System shall terminate at each designated Access Point located outside a GCISD building. 3.2 Conduit System for Parties Use Only. The Conduit System shall be exclusively used by City and/or GCISD and neither Party may sell, transfer, lease and/or assign the Conduit System to a third-party except by written consent from the other Party. 3.3 Project Location. The Parties have identified the best routing for the Conduit System which is depicted on the map attached hereto as Exhibit"A." The Parties understand and agree that the Committee identified in Article VII may review and amend this map on an ongoing basis prior to and during the Term of this Agreement. 3.4 Rights-of-way. The City shall provide reasonable access to City Rights-of-Way for the installation of the Conduit System at all locations where there is no conflict with existing users and there is available space. The City shall not be responsible for acquiring additional rights-of- way, easements or other property rights in order to install the Conduit System. The City will have PAGE 3 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE GRAPEVINE-COLLEYVILLE INDEPENDENT SCHOOL DISTRICT FOR FIBER exclusive control over the rights-of-way directly related to this Agreement. The City will decide where the duct is to be located within the designated Rights-of-Way. 3.5 Access Points. The locations of all GCISD Access Points shall be designated by GCISD in its sole discretion. The locations of all City Access Points shall be designated by City in its sole discretion. Each Access Point will generally consist of a Pull Box or similar access facility within a Right-of-Way at or near the Party's building and/or real property. Construction of Facilities and pulling of fiber optic cable from each Access Point to the termination point shall be the responsibility of Party designating the Access Point on its property. Iv. PROJECT SPECIFICATIONS 4.1 Specifications. The Conduit System Facilities shall conform with specifications provided in Exhibit "B" attached hereto. 4.2 Installation. The Contractor shall perform installation for the Project, including the two(2)innerducts;the vaults on the main conduit trunk line to provide access to the innerducts and pull the fiber through the irinerduct assigned to the City and to GCISD. 4.3 Restoration. After the Contractor completes this work, the City will hire and oversee a separate contractor to restore the Right-of-Way to its original condition prior to the construction and installation of the Conduit System.Restoration work under this Agreement shall comply with the applicable specifications in Exhibit B. The Parties will share the cost of these repairs and City agrees to provide GCISD with an estimate of the expenditures needed to restore the Right-of-Way prior to proceeding with the restoration work. 4.4 System Compatibility.The City will ensure that the portions of the Conduit System installed within the City Rights-of-Way located within both the Glade Road and Highway 26 Project locations are compatible with the Conduit System to the extent necessary for the Parties to be able to connect and run their respective Facilities throughout those locations. The City shall be responsible for the work and costs associated with any modifications to the Conduit System located within the City's Rights-of-Way in these two locations to the extent necessary to ensure such compatibility. The City shall have sole discretion to determine the scope and work to be performed in connection with the City's obligations under this Section 4.4. 4.5 Equipment. Equipment required for installation shall be acquired by the Contractor. The Contractor may perform work for GCISD with the Equipment. GCISD shall have the right to use the Equipment. Equipment for the installation,repair and maintenance in GCISD or City buildings will be the responsibility of each Party. 4.6 Permitting. The City will be responsible for applying for any required permits or licenses or other permission that may be required;however,if required by the permitting agency, both Parties will sign any needed application. Both Parties will share in initial or ongoing costs for any required permits, license or other permission that may be required. Both Parties further agree to share the related cost(s), aforementioned, equally. PAGE 4 l LNTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE GRAPEVINE COLLEYVILLE INDEPENDENT SCHOOL DISTRICT FOR FIBER I V. MAINTENANCE &REPAIR SERVICE; COST APPORTIONMENT 5.1 Responsibility for Location Services. During the Term of this Agreement and subject to the limitation contained in paragraph 6.2, the City will coordinate and provide all location services. The City may enter into an agreement with a third party to provide such services, the terms of which shall be at the City's sole discretion. 5.2 Maintenance and Repair Generally. The City shall be responsible for the maintenance and repair cost for all Conduit System Facilities located on City property. GCISD shall be responsible for the maintenance and repair cost for all Conduit System Facilities located on GCISD property. 5.3 Maintenance and Repair in the Rights-of-Way. During the term of this Agreement, the City shall be responsible for coordinating and administering the maintenance and repair of the Conduit System in the Rights-of-Way. The City and GCISD agree that each Party shall pay their own materials cost. For joint costs, including maintenance and repairs, the Parties will pay proportionately based upon the fiber strands each Party has in that portion of the system (for example, if the City has 96 fiber strands and GCISD has 288 fiber strands in the affected portion of the system,the City would pay 25%and GCISD would pay 75%of the shared costs). Upon the expiration or termination of this Agreement, the Parties shall enter into a separate agreement to provide for the maintenance and repair of the Conduit System. 5.4 Maintenance Priorities. During the term of this Agreement, the City's contractor shall provide maintenance of the Conduit System and respond, on an emergency basis, to all Conduit System repair calls and perform any needed repairs, including providing cable locates as needed. The Parties agree that the safety and well-being of the City's citizens and visitors are priority, and; the maintenance and repair will be performed based on the following priority order: (i) those portions of the Conduit System serving public safety; (ii) those portions of the Conduit System used for other City services; and (iii) GCISD's portion of the Conduit System; provided, however, that during any emergency situation involving a GCISD campus or other building or during time periods when GCISD students are taking state-mandated tests, GCISD's system will be given the same priority as the portion of the system serving public safety. 5.5 Damages. During the term of this Agreement, if the Conduit System in the Right- of-Way is damaged, the Parties agree to seek compensation from any and all responsible for the damage. If there is no responsible third party, or the responsible third party cannot be found or is unable to pay for the damages,the City and GCISD agree to hire a contractor to perform the repairs with the cost to be apportioned in accordance with Section 5.3 above. 5.6 Schedulinv. All maintenance and repair work on the Conduit System (other than emergency repairs) will be scheduled outside the time periods GCISD students are taking state- mandated tests, and that GCISD will be given at least two weeks' notice prior to any scheduled maintenance and repair work. Notwithstanding the foregoing, both Parties agree to provide PAGE 5 ! INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEY-VILLE AND TIE GRAPEVLNE-COLLEYYILLE INDEPENDENT SCHOOL DISTRICT FOR FIBER reasonable notice to the other prior to starting any maintenance or repair work that may affect the other Party's use of the Conduit System. VI. DEDICATED FUND 6.1 Dedicated Fund. In order to commence construction, City must initially pay into a dedicated fund, an amount that will allow the City, through its Contractor, to place orders and begin the process.The Contractor will maintain said fund. City will initially pay$175,000 into the dedicated fund for the purposes of construction and installation of the Conduit System within thirty (30) days after the Effective Date of this Agreement. 6.2 City Contributions to the Fund. The City shall contribute to the Dedicated Fund in accordance with the cost estimate table attached hereto as Exhibit C. The Parties agree that the City's contribution amounts identified in Exhibit C are merely estimates and are subject to change. After the first year, City will pay over a two-year period,not later than September 30 of each year, an estimated amount of$123,125.28. Annual reconciliations will be performed to determine the actual Project cost and if additional funding is needed this will be determined by the Committee. The Parties may also mutually agree to increase the amount paid into the Dedicated Fund to cover any necessary expenses for the Project. 6.3 Highway 26 and Glade Road Project Funding. The City contributions identified in Section 6.2 above will not be used for the installation of conduit facilities in that portion of Highway 26 being constructed by TxDOT or within the Glade Road Project; provided that the City's contributions will be used for the installation of fiber for the GIade Road Project. GCISD's cost of installation for the aforementioned conduit being installed by TxDOT on Highway 26 and City's contractor for the Glade Road Project shall be credited to the City as provided in Exhibit C. 6.4 GCISD Contributions. The Parties acknowledge that GCISD previously paid $625,000 into the Dedicated Fund for use in this Project. 6.5 Annual Fund Accounting. Each Party shall be entitled to one accounting of revenue and expenditures within the Dedicated Fund on or before July 315 of each year. This accounting shall be delivered in the same manner as provided in the Interlocal Agreement Between the City of Grapevine and the Grapevine-Colleyville Independent School District dated May 21, 2015, as the same may be amended from time to time (the "Grapevine ILA"). 6.6 Project Committee. The Parties agree that their respective staff will be appointed to the committee established by the Grapevine ILA (the"Committee"), to address various issues, including but not limited to construction, scheduling, maintenance, location, cost adjustments and disputes that may arise in the shared use of the Conduit System or other duties as needed. The City Manager and Superintendent shall be entitled to assign an equal number of staff members to the Committee. 6.7 Committee Meetings. It is anticipated that the Committee will meet twice a month during the term of this Agreement and when necessary thereafter and the Committee members PAGE 6 LNTERLOCAL AGREEMENT BEIIVEENTHE Ci1'Y OF COLLE'YVILLE AND THE GRAPEVINE-COLLEYVIELE INDEPENDENT SCHOOL DISTRICT FOR FIBER from each Party will provide their Party's staff with minutes and updates from Committee meetings. It is the Parties understanding that a simple majority of the total number of appointed Committee members shall constitute a quorum to conduct Committee business concerning this Agreement. • 6.8 Rules of Procedure;Voting. The Committee shall adopt its own rules of procedure and in all cases where the Committee is to make a decision under this Agreement, the decision may be made in one of the following ways: (a) A majority of the Committee members for each Party shall constitute a vote on behalf of the Party they represent; or (b) Each Party shall designate a voting member for that Party. 6.9 Committee Minutes. Written or recorded minutes shall be kept for all Committee meetings in which there is a quorum present in accordance with the Texas Open Meetings Act and are subject to disclosure under the Public Information Act. 6.10 Limitations of Committee. The Committee will not have oversight of the installation of conduit facilities by TxDOT on Highway 26 or the installation of the conduit facilities by City's third party contractor on Glade Road Project;provided the Committee will have oversight of the installation of fiber in the innerducts in these two areas. VII. DISPUTE RESOLUTION; MEDIATION 7.1 Dispute Resolution. The Parties agree that the Parties will attempt to resolve disputes relating to the Project and this Agreement in the following manner: (i) first the Parties will meet in the Committee to attempt resolution;(ii) if no resolution is achieved by the Committee, the dispute will be heard by the District Superintendent or designee and the City Manager or designee jointly; (iii) if no resolution is achieved after the dispute is heard by the Superintendent or designee and the City Manager or designee, then the dispute will be heard by an independent mediator; and (iv) if no resolution is achieved after meeting with a mediator,then the dispute will be resolved in the appropriate Court. Either Party may proceed directly to Court if this dispute process would unduly delay or interfere with the Party's timely filing of one or more causes of action in court. 7.2 Mediation. Should mediation occur, the Parties shall agree on the mediator to be used and each Party agrees to equally share the cost for the mediator's services. Each Party is responsible for its own expenses related to mediation, including legal representation. VIII. TERM & TERMINATION 8.1 The Initial Term of this Agreement shall be for a period of five (5) years unless earlier terminated in accordance with the provisions contained herein. The Parties may agree to PAGE 7 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND TUE CRAPEVLNE-COLLEY%'1LLE INDEPENDENT SCHOOL DISTRICT FOR FIBER one or more annual renewal terms of this Agreement(each a "Renewal Term") by mutual written agreement any time prior to the Expiration Date. 8.2 This Agreement terminates on the Expiration Date,and may,prior to the Expiration Date, be terminated upon any one or more of the following: (a) by written mutual agreement of the Parties; (b) by either Party, after thirty (30) days written notice to the other if for any reason funds are not expressly and specifically allocated to cover each Party's prospective obligation in this Agreement in each Party's approved budget in any fiscal year subsequent to that in which each Party's funds for this Agreement were first allocated; provided, however, that in no event shall such a termination be effective earlier than the last date for which the terminating Party's funds have already been so allocated under an existing approved budget; (c) by either Party in the event the other Party breaches any of the terms or conditions of this Agreement and such breach is not cured within thirty(30) days after written notice thereof; provided however, if such breach cannot reasonably be cured within such thirty(30)day period, such breaching Party shall be allowed additional time (not to exceed thirty (30) additional days) to cure such breach so long as the breaching Party begins the cure within the initial thirty (30) days and diligently pursues the cure to completion within sixty(60) days after written notice of such breach; (d) by either Party after thirty (30) days written notice if there is an abandonment of the Project by the Contractor and/or through no fault of the City, no work has been performed by the Contractor for a period of twelve (12)months; or (e) after thirty (30) days written notice by the City if: a. the Contractor does not execute a contract with the City to perform the work for the Project within one year of the Effective Date of this Agreement; or b. the Agreement between the Contractor and the City is terminated prior to completion of the Project. 8.3 Refund Upon Termination. In the event the Agreement is terminated by the City pursuant to Section 8.2(c), (d), or(e) above,neither GCISD nor the Committee shall be entitled to receive any subsequent annual payments under this Agreement. Except as otherwise provided in this Article, including section 8.4 below, GCISD and the Committee shall have no obligation to refund to the City any annual amount (or portion thereof or interest accrued thereon) previously paid by the City to the Dedicated Fund. 8.4 Rights Upon Termination. Upon expiration or termination of this Agreement for any reason, the City and GCISD shall retain ownership of their respective rights and obligations as set forth herein.A full and final accounting of all funds and expenditures in the Dedicated Fund, established pursuant to Article VI of this Agreement, shall be completed and all remaining net balances and/or remaining obligations owed hereunder shall be distributed and/or allocated PAGE 8 LNTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND TETE GRAPEVINE-COLLEYVILLE I,NDEPENDENT SCHOOL DISTRICT FOR FIBER accordingly within ninety (90) days of the Expiration Date or termination of this Agreement, as the case may be. 8.5 Reimbursement for Third-Party Projects. If either or both the Glade Road Project or the Highway 26 Project are not complete upon the expiration or termination of this Agreement, the City shall reimburse GCISD for any portion of the credit given in this Project for those installations that are not complete and further agrees that GCISD shall have the right to bring in a contractor of its choosing to complete installation of GCISD's Conduit System in the City's Rights-of-Way within those Projects. IX. MISCELLANEOUS 9.1 Notice. Any notice required to be sent under this Agreement must be in writing and may be served by depositing same in the United States Mail, addressed to the Party to be notified, postage pre-paid and registered or certified with return receipt requested,or by delivering the same in person to such Party via a hand-delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee. For purposes of notice,the addresses of the Parties shall be as follows: If to Colleyville,to: City Manager City of Colleyville 100 Main Street Colleyville,Texas 76034 If to GCISD, to: Superintendent Grapevine-Colleyville Independent School District 3051 Ira E Woods Ave Grapevine, Texas 76051 9.2 Governing Law. The validity of this Agreement and any of its terms and provisions as well as the rights and duties of the Parties shall be governed by the laws of the State of Texas; and venue for any action concerning this Agreement shall be in the State District Court of Tarrant County, Texas. The Parties agree to submit to the personal and subject matter jurisdiction of said court. 9.3 Party Responsibility. To the extent allowed by law, and without waiving any governmental immunity available to the Parties under Texas law, or any other defenses the Parties are able to assert under Texas law, each Party agrees to be responsible for its own negligent or otherwise tortious acts or omissions in the course of performance of this Agreement. The covenants,obligations and liabilities of the Parties shall be several and not joint or collective.Each of the Parties shall be individually responsible for its own covenants, obligations and liabilities herein. It is not the intention of the Parties to create, nor shall this Agreement be construed as creating a partnership, association, joint venture or trust, as imposing a trust or partnership covenant, obligation or liability on or with regard to any of the Parties. PAGE 9 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILL£AND TIII• GRAPEVINE-COLLEYVILLE INDEPENDENT SCHOOL DISTRICT FOR FIBER I 9.4 Immunity. It is expressly understood and agreed that, in the performance of this Agreement, none of the Parties waive,nor shall be deemed hereby to have waived, any immunity or defense that would otherwise be available to them against claims arising in the exercise of governmental powers and functions. By entering into this Agreement, the Parties do not create any obligations, express or implied,other than those set forth herein, and this Agreement shall not create any rights in any persons or entities who are not parties to this Agreement. The Parties expressly acknowledge and agree that the construction, operation,and use of the Facility constitute a governmental function pursuant to the Texas Tort Claims Act, as amended. 9.5 Entire Agreement. This Agreement represents the entire agreement among the Parties with respect to the subject matter covered by this Agreement. There is no other collateral, oral or written agreement between the parties that in any manner relates to the subject matter of this Agreement. 9.6 Exhibits. All exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same.In the case of any conflict between this Agreement and the Exhibits,this Agreement shall govern. 9.7 Recitals. The recitals to this Agreement are incorporated herein. 9.8 Amendment. This Agreement may only be amended by the mutual written agreement of all Parties. 9.9 Criminal Background Check. GCISD shall be responsible for any requirements in regard to criminal background checks or other requirements under the Texas Education Code for Contractor's workers on designated school property. 9.10 Questions from the Public, Public Information Act Request. The City acknowledges that it is the City's responsibility to respond to questions or concerns expressed by the City's citizens on any issues related to the Project including, but not limited to, general questions or concerns about the Project, its construction/installation schedule, and the type or quality of work being performed to carry out the terms and conditions of this Agreement. Notwithstanding the foregoing,both Parties agree to comply with Chapter 552 of the Texas Public Information Act. 9.11 Severability. In the event, any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. 9.12 Counterparts. This Agreement may be executed in any number of counterparts,each of which shall be deemed an original and constitute one and the same instrument. PAGE 10 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND I THE GRAPEVLNE-COLLEYVILLE INDEPENDENT SCHOOL DISTRICT FOR FIBER 9.13 Assignment. No Party may assign, transfer, or otherwise convey this Agreement without the prior written consent of the other Parties. 9.14 Consents. Unless expressly stated otherwise, whenever the consent or the approval of a Party is required herein, such Party shall not unreasonably withhold,delay or deny such consent or approval. 9.15 Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period of time following the termination of this Agreement shall survive termination. 9.16 Source of Payment. Each Party paying for the performance of governmental functions or services pursuant to this Agreement must make those payments from current revenues available to the paying Party or from funds otherwise lawfully available to the Party for use in the payment of the Party's obligations pursuant to this Agreement. 9.17 Purchasing. The Parties agree that each Party shall abide by any and all competitive purchasing laws applicable to the Party initiating the construction, maintenance or repair of the system. The Parties further agree that all payments shall be from the designated fund. 9.18 Force Majeure. No Party shall be liable to any or all of the other Parties for any failure, delay, or interruption in the performance of any of the terms, covenants, or conditions of this Agreement due to causes beyond the Party's respective control or because of applicable law, including, but not limited to, war, nuclear disaster, strikes, boycotts, labor disputes, embargoes, acts of God, acts of the public enemy, acts of superior governmental authority, floods, riots, rebellion, sabotage, terrorism, or any other circumstance for which a party is not legally responsible or which is not reasonably within its power to control. The affected Party's obligation shall be suspended during the continuance of the inability then claimed, but for no longer period. To the extent possible, the Party shall endeavor to remove or overcome the inability claimed with all reasonable dispatch. 9.19 Additional Participating Parties. Additional parties or other governmental entities may become parties under the terms of this Agreement by an appropriate amendment to this Agreement approved by the governing body of each of the Party. 9.20 Insurance.The Parties shall obtain any and all insurance necessary for the Project. Signature page to follow PAGE 11 I INTERLOCAL AGREEMENT BETWEEN TIYE CITY OF COLLEYVILLE AND THE GRAPEVLNE-COLLEYVILLE INDEPENDENT SCHOOL DISTRICT FOR FIBER EXECUTED hereto on.the date(s) shown below. Grapevine- o eyville City fC3yville, Texas • By: By: Presi,eat, :•ard of Trustees Richtrd Ne on,Mayor couerme City Council Attest: Attest: MAR 07 ZOIT Approved okt4,4 4LA1 11'1\ Secretary,Board of Trustees Amy S ley City Ng• retary APPROVED AS TO FORM: APPROVED AS TO FORM: Time n,Br ckett&Ellis,P.C....... ...... Whitt L.Wyatt,Nichols,JacksPr.6N.144 Hager&Smith L.L.P. (ILA:3.1.173042.000.83317v4.2) • LIST OF EXHIBITS Exhibit A— Conduit System Map Exhibit B— Contractor Restoration and Specifications of the Conduit System Installation for Third Party Installed Conduit Exhibit C— Conduit&Fiber System Estimates • PAGE 12 INTERLOCAL AGREEMENT BETWEEN 1HE CITY OF COLLEYVILLE AND TIEE GRAPEYLNE-COLLEYVILLE INDEPENDENT SCHOOL DISTRICT FOR FlUdER EXHIBIT A CONDUIT SYSTEM MAP PAGE 13 1 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE GRAPEVINE-COLLEYVILLE INDEPENDENT SCHOOL DISTRICT FOR FIBER I EXHIBIT B SPECIFICATIONS OF TIIE CONDUIT SYSTEM INSTALLATION FOR THIRD-PARTY INSTALLATION 1. Depth of induct is typically 30". It may go deeper if needed and shall not be shallower than 18" if needed to avoid obstacles. 2. Place two 1 '/4"HDPE SDR 11 ducts. 3. Color of ducts shall be Black and Orange.Pipe shall be solid in color.Pipe with only tracer line showing color shall not be used. 4. NO 30's,45's or 90's only shall be used. 5. Any change of direction will be made via Pull box or bending innerduct in sweeping radius no shallower than 36". 6. Minimum pull box size shall be 48"x36"x 24" deep. 7. Maximum distance between pull boxes shall be 1,500 feet. 8. Pull boxes shall typically sit on 9" of gravel and depending on location may have a 10" concrete apron. 9. Separate pull boxes shall be set for City and ISD. Innerduct will terminate in respective boxes. 10. When setting pole boxes/terminating innerduct,place a 1 1/4" duct plug in the end of the pipe to prevent debris from entering before the fiber is installed. Duct tape may not be used in place of duct plugs. 11. After the fiber has been installed, place a split duct plug in each duct to prevent debris from entering. 12. Place a 3" marked tube warning of fiber optic cable route. 13. A tracer wire of a minimum of a 10 AWG solid copper clad orange shall be placed with innerduct. Wire shall be continuous without splices. Insulation shall not be damaged during installation. If this occurs it shall be replaced. 14. Typical depth of 4" duct is 24"-30". This may vary depending on obstacles. 15. A minimum of 100' of cable shall be stored in each pull box regardless of splice cans. 16. A fiber splice Can shall be placed in the pull box whenever a splice is made. This splice Can shall be sized to match the strand count of the cable. 17. A fiber splice tray shall be placed in the splice Can and shall be sized for the number of splices at that location. 18. Splices shall be made in a clean environment, typically in the splice trailer. 19. RESTORATION: The contractor shall back-fill holes and level the ground. PAGE 14 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE GRAPEVINE-COLLEYVILLE INDEPEN'DEN'T SCHOOL DISTRICT FOR FIBER EXHIBIT C CONDUIT & FIBER SYSTEM ESTIMATES [— Linear Colleyville Footage __ Footage Cost per LF 1 Total Total, 51,930 Colleyville Conduit+ Pulling Fiber! 25,723 $13.50 $347,260.50 Conduit+ Pulling Fiber Shared with GCISD 20,754 $6.75 $140,089.50 Pulling Fiber Shared with GCISD in 3rd Party Conduit for Glade Road Only 5,453 $1.25 $6,816,25 Colleyville Fiber-48 strands 51,930 $0.511 $26,484.30 Total Estimated• Project Cost1 $520650.55! Credit for Conduit Installed by 3rd Party @ Glade& l Hwy 2618,080 18,080 $5.50 $99,440.00 Net Estimated Project Cost $421,250.55 Based on the above calculations, the City shall make an initial payment of$175,000 and two payments of $123,125.28. However, as outlined in the Agreement, the Committee may adjust the amount of each payment. PAGE I5 LNTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVI .LE AND THE GRAPEVINE-COLLEYVILLE INDEPENDENT SCHOOL DISTRICT FOR FIBER EXHIBIT F ILA BETWEEN GRAPEVINE AND GCISD REFERENCED IN GCISD AGREEMENT PAGE 19 INTERLOCAL AGREEMENT BETWEEN THE CITY OF COLLEYVILLE AND THE CITY OF GRAPEVINE FOR FIBER OPTIC CABLE INSTALLATION CITY OF GRAPEVIN Approved by CouncilN EXHIBIT F /RE— �� STATE OF TEXAS COUNTY OF TARRANT INTERLOCAL AGREEMENT BETWEEN THE CITY OF GRAPEVINE AND THE GRAPEVINE- COLLEYVILLE INDEPENDENT SCHOOL DISTRICT This Agreement is entered into the 21st day of May 2015, by and between the CITY OF GRAPEVINE, TEXAS a municipal corporation, hereafter referred to as the "City" or "Grapevine"and the GRAPEVINE-COLLEYVILLE INDEPENDENT SCHOOL DISTRICT, an independent school district located in Tarrant County,Texas, hereafter referred to as"GCISD" or "District" and located partially within the City of Grapevine and jointly, referred to as the "Parties." WHEREAS, GCISD and the City execute this Interlocal Agreement pursuant to the Interlocal Cooperation Act, Chapter 791 of the Texas Government Code, as amended, and in accordance with purchasing statutes regulating the Parties and subject to availability of current revenues; WHEREAS, the Parties agree that any party paying for the performance of governmental functions or services under this contract shall make those payments from current revenues available to the paying party; WHEREAS, the City and GCISD need to have and maintain fiber optic cable in the streets of Grapevine, Texas and in many of the same locations; WHEREAS,the City holds the rights-of-way in trust and has the legal right to occupy the rights-of-way; WHEREAS, the City and GCISD will also need to obtain the right to occupy right-of- way not under City control. WHEREAS, the City has the authority to lease fiber or conduit it owns to another party; WHEREAS, it is beneficial for the City and GCISD to share common conduit system where possible; WHEREAS, the Interlocal Cooperation Act authorizes governmental entities to enter into interlocal cooperation agreements for administrative and governmental functions and services; WHEREAS, the Grapevine City Council approved this Agreement at a City Council meeting that had been posted and met the requirements of the Texas Open Meetings Act; 1 WHEREAS, The Grapevine-Colleyville Independent School District approved this Agreement at a Board meeting that had been posted and met the requirements of the Texas Open Meetings Act; NOW, THEREFORE, in consideration of the premises and agreements, covenants, and promises set forth herein, it is agreed as follows: I. DEFINITIONS 1. "City"means City of Grapevine,Texas. 2. "Conduit"means the hard tube, which is designed to house innerduct or fiber. 3. "Conduit System" means the conduit installed and owned by the City and used by the City of Grapevine and the GCISD. 4. "Duct"means one section of multi-duct. 5. "Equipment" means the tools, machinery, and motor vehicles used to install the conduit system, including equipment such as a bore rig, trucks, back trailer, fiber pulling equipment, or other such machinery or equipment. 6. "Fiber"or"Fiber Optic"means the optics of light transmission through very fine, flexible glass rods by internal reflection. 7. "Facilities" means the conduit system, including the conduit, the fiber optic strands, innerduct, any handholes or manholes used for the conduit system, trunk lines, pull boxes or any other part of the fiber optic system. 8. "GCISD"means the Grapevine-Colleyville Independent School District. 9. "Innerduct" means the individual, flexible tube conduit through which the glass fiber strand cable is installed. 10. "Multi-duct"means the conduit system, which has been sectioned into either three or four innerducts. 11. "Parties" means the City of Grapevine and the Grapevine-Colleyville Independent School District. 12. "Project" means the installation of the fiber optic network in the City of Grapevine pursuant to the terms of this Agreement. 13. "System" means the entire system of cable, conduit, duct, fiber optic, innerduct. 2 I 14. "Pull Box" and "access Point" have the same meaning and refer to the location of the point in the ground nearest a facility being connected where the responsibilities of the "system" end and begin depending on the Party identified II. PURPOSE The purpose of this Agreement is to provide for the parties to plan, construct, install, maintain and use a common conduit system for fiber optic cable in the streets, and public easements of all areas of contiguous jurisdiction shared by the Parties. Based upon certain legal considerations, such as the City's right to occupy and use the City rights-of-way, and other rights-of-way under appropriate permission to do so, the City and GCISD shall own the facilities located in the City rights-of-way and shall authorize the use of the conduit and fiber optic cable pursuant to the terms of this Agreement. This Agreement governs the installation, maintenance, repair, and use of conduit, innerduct, fiber optic cable and related facilities located within the City and jointly owned by the City and GCISD. If the installation is expanded to other cities in the GCISD, the City will only be a contractor in other cities, if so desired by the parties to the agreements between the GCISD and the other cities. City will not own or maintain conduit, innerduct, fiber optic cable or the related facilities located outside of the city limits of the City of Grapevine. III. TERMS, RIGHTS, OBJECTIVES AND DUTIES OF THE PARTIES 1. Ownership. The conduit system to be installed shall be owned as follows: the City shall have ownership of two (2) ducts and the GCISD shall have ownership of one (1) duct. The City and GCISD shall jointly own the conduit system, including the conduit, innerduct, multi-duct, fiber optic lines and other parts of the system located in the right-of-way. City ownership shall extend to and end at the first pull box located outside a GCISD building. The demarcation boundary for location services, maintenance and repair of the conduit system shall also be at the first pull box outside a GCISD building and GCISD's responsibility for these items begins at the first pull box and extends throughout the property and building for a GCISD location and properties. City ownership shall extend past the pull box and throughout the property and building for any City location and properties. 2. Conduit for Parties Use Only. GCISD and City will have access to the system for their use only. Both parties are prohibited from selling, or allowing access to the system by or for the use of a third party, nor may the system or use of the system be sold, transferred or assigned to any other party. 3. Right-of-way. The City shall provide access to City right-of-way for the installation of the conduit system at all locations where there is no conflict with existing users and there is available space. The City shall not be responsible for acquiring additional right-of-way or 3 easements or other property rights in order to install the conduit system. When other right-of- way is needed the City will be the primary party seeking the appropriate permission or permits. 4. City Services. The City shall provide all location service, maintenance and repair of the conduit system for the term of this Agreement. The City may enter into an agreement with a third party to provide such services, which shall be under terms solely decided and agreed upon by the City. 5. Location. The City and GCISD have provided one another with all locations at which each party wishes to have the conduit system reach. The parties have identified the best routing for the conduit system and the final agreed routing and installation map showing that route is attached as Exhibit "A." Final selection of locations for service and the most effective route shall be decided by the Committee (established pursuant to Paragraph 12 below) on an ongoing basis prior to and during construction. 6. Control of rights-of-way. The City will control the rights-of-way. The City will decide where the duct is to be located within the rights-of-way. 7. Access points. At GCISD locations, the access points will be provided at a location in the right-of-way designated by GCISD. An access point will consist of a pull box in the right-of- way near or on GCISD real property or GCISD buildings. Construction of duct or other facilities inside the structure and pulling fiber from the access point to the termination point in the building shall be the responsibility of GCISD. At City locations, the access points will be provided at a location designated by City. An access point will consist of a pull box in the right-of-way near City buildings or real property. Construction of duct or other facilities from the pull box to the structure and inside the structure and pulling fiber from the access point to the termination point shall be the responsibility of City. 8. Installation guidelines. Installation will be in accordance with the construction contract to be agreed upon by the parties in the future. The City shall perform installation for the Project, including the main conduit trunk line containing the three (3) innerducts, the vaults on the main conduit trunk line to provide access to the innerducts, pull the fiber through the innerduct assigned to the City and into City locations. GCISD shall pull fiber through the innerduct assigned to GCISD and in its conduit from the Main Trunk Conduit Line into GCISD locations. However, City may perform this work for GCISD if the parties agree. Equipment required for installation up to the building shall be acquired by the City. The parties shall share costs for such equipment. GCISD shall have the right to use of the equipment as long as the use would not delay installation of the system. City may perform work for GCISD with the equipment if the parties agree. Equipment for the installation, repair and maintenance in GCISD or City buildings will be the responsibility of each party. The City will be responsible for applying for any required permits or licenses or other permission that may be required; however, if required by the permitting agency,both parties will 4 I sign any needed application. Both parties will share equally in initial or ongoing costs for any required permits, license or other permission that may be required. The City and GCISD shall obtain the necessary insurance for the Project. GCISD shall be responsible for any requirements in regard to criminal background checks or other requirements under the Educational Code for workers on school property. 9. Dedicated fund. In order to commence construction, both parties must initially pay into a dedicated fund, an amount that will allow the City to place orders and begin the process. The City will maintain said fund. Each party will initially pay $625,000 into the dedicated fund for the purposes of construction, maintenance and repair of the system within thirty days after the last party has signed the Agreement. After the first year, each party will pay annually during installation, not later than September 30 of each year, $500,000 or an amount as determined by the Committee provided both parties agree. Based upon the needs of operating the system, the parties may agree to increase the amount paid into the dedicated fund. After installation is complete, the parties will pay, not later than September 30 of each year, $20,000 for repair and maintenance costs, or an amount as determined by the Committee provided both parties agree. If both parties do not agree to a different amount for maintenance, the above amount shall apply. The parties must agree on a different amount no later than July 1. Each party shall be entitled to an accounting of revenue and expenditures, but such accounting may not occur more than once a year. City agrees to provide such accounting to GCISD, on or before July 31 of each year, for the period of July 1 through June 30 of the previous year. Each party paying for the performance of the governmental functions or services as set forth in this Agreement will make all payments from current revenues available to the paying party. 10. Purchasing. The parties agree that each party shall abide by any and all competitive purchasing laws applicable to the party instigating the construction, maintenance or repair of the system. The parties further agree that all payments shall be from the designated fund. 11. System priorities. The City provided maintenance shall include responding, on an emergency basis, to all fiber optic, conduit and cable system trouble calls and performing any needed repairs due to damage and providing cable locates as needed. The parties agree that the safety and well-being of the City's citizens and visitors being the first consideration, the City provided maintenance and repair will be performed based on the following priority schedule: (i) the part of the system serving public safety; (ii) the part of the system used for other City services; (iii) GCISD's system provided, however,that during any emergency situation involving a GCISD campus or other building or during time periods when GCISD students are taking state- mandated tests, GCISD's system will be given the same priority as the system serving public safety. 5 12. Committee. The Parties agree that staff will be assigned to a Committee to address various issues, including construction, scheduling, maintenance, location, cost adjustments and disputes that may arise in the shared use of the System or other duties as needed. The City Manager or Superintendent shall assign staff members to the committee. It is anticipated that the Committee will meet twice a month during the construction phase of this Agreement and when necessary thereafter, and the Committee members from each party will provide their party's staff with Minutes and updates from Committee meetings. 13. Maintenance and Repair- Costs and Scheduling. The City shall be responsible for the maintenance and repair of City fiber and innerduct pipe maintenance. GCISD shall be responsible for GCISD fiber. These maintenance and repair obligations apply regardless of whether the fiber is in right-of-way, either party's buildings or real property, or any other location. Cost: If fiber in the right-of-way is damaged, the parties agree to seek compensation from any and all third parties responsible for the damage. If there is no responsible third party, or the responsible third party cannot be found or is unable to pay for the damages, the City and GCISC agree that the City shall perform the repairs. The City and GCISD agree that each party shall pay their own material cost and for joint costs, the parties will pay proportionately based upon the fiber strands each party has in the system (for example, if the City has 288 fiber strands and GCISD has 96 fiber strands, the City would pay 75% and GCISD would pay 25% of the shared costs). Scheduling: The City agrees that all maintenance and repair work on the system (other than emergency repairs) will be scheduled outside the time periods GCISD students are taking state- mandated tests, and that GCISD will be given at least two weeks' notice prior to any scheduled maintenance and repair work. 14. Decisions by Committee. In all cases where the Committee is to make a decision under this Agreement, the decision may be made in one of the following ways: (a) A majority of the Committee members for each party shall constitute a vote on behalf of the party they represent; or (b) Each party shall designate a voting member for that party. The method to be used shall be decided by each party or shall be designated by the District Superintendent or City Manager. During meetings in which decisions are made under this Agreement, Minutes shall be kept to record the method of voting and the vote of each party. IV NO ORAL AGREEMENT&ENTIRE AGREEMENT This Agreement contains all the teens, commitments and covenants of the Parties pursuant to this Agreement. Any oral or written commitment not contained in this Agreement or expressly 6 referred to in this Agreement and incorporated by reference shall have no force or effect. This Agreement contains the entire agreement of the parties with respect to the matters contained herein and may not be modified or terminated except upon the provisions hereof or by the mutual written agreement of the parties hereto. V. CAPTIONS The captions to the various clauses of this Agreement are for informational purposes only and in no way alter the substance of the terms and conditions of this Agreement. VI ASSIGNMENT This Agreement or any part thereof shall not be assigned or transferred by any party without the prior written consent of the other party. VII NOTICE Any notice required to be sent under this Agreement must be in writing and may be served by depositing same in the United States Mail, addressed to the party to be notified, postage pre-paid and registered or certified with return receipt requested, or by delivering the same in person to such party via a hand-delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall be as follows: If to Grapevine,to: Bruno Rumbelow, City Manager City of Grapevine 200 South Main Street Grapevine, Texas 76051 If to GCISD, to: Grapevine-Colleyville Independent School District Superintendent 3051 Ira E Woods Ave Grapevine, Texas 76051 VIII AGREEMENT INTERPRETATION AND VENUE The Parties covenant and agree that in any litigation relating to this Agreement, the terms and conditions of the Agreement will be interpreted according to the laws of the State of Texas. Venue shall be exclusively in Tarrant County, Texas. The Parties further agree that the parties will attempt to resolve disputes in the following manner: (i) first the parties will meet in the Committee, as set out in Article III, section 12 above; (ii) if no 7 resolution is achieved by the Committee, the dispute will be heard by the District Superintendent or designee and the City Manager or designee jointly; (iii) if no resolution is achieved after the dispute is heard by the Superintendent or designee and the City Manager or designee, then the dispute will be heard by a mediator; (iv) if no resolution is achieved after meeting with a mediator, then the dispute will be resolved in the appropriate Court. Provided, however, that if needed, due to the statute of limitations or some other requirement, a Party may proceed directly to Court, if this process would unduly delay. The parties shall agree on the mediator to be used and each party agrees to share the cost for the mediator's services. Each party is responsible for their expenses related to their own representation. IX CONSIDERATION This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. X. COUNTERPARTS This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. XI. AUTHORITY TO EXECUTE The individuals executing this Agreement on behalf of the respective parties below represent to each other and to others that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date hereof. XII SAVINGS/SEVERABILITY In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 8 XIII REPRESENTATIONS Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had an opportunity to confer with its counsel. XIV TERM &TERMINATION The Term of the Agreement shall be for Ten (10) years. The parties may agree to annual renewals of this Agreement. Either Party to this Agreement may withdraw at any time after the completed construction and installation of the common conduit system for fiber optic cable in the street but only after providing the other party not less than ninety (90) days' notice in writing of withdrawal. This Agreement may be terminated at any time by mutual consent of the Parties. Upon termination of this Agreement, the City and GCISD shall retain ownership of the designated rights as set forth above. A full and final accounting of all funds and expenditures in the Dedicated Fund, established pursuant to Paragraph 9, shall be completed by City and distributed to the parties within ninety(90)days of the last day of this Agreement. City and GCISD hereby acknowledge and agree that they are each governmental entities, subject to annual budgetary processes and restrictions on spending in conformity with those processes, approved budgets, and applicable law. They further agree that, notwithstanding any other language in this Agreement, if for any reason funds are not expressly and specifically allocated to cover each Party's prospective obligation in this Agreement in each Party's formally and finally approved budget in any fiscal year subsequent to that in which each Party's funds for this Agreement were first allocated, any such Party may immediately and without penalty terminate this Agreement; provided, however, that in no event shall such a termination be effective earlier that the last date for which the terminating Party's funds have already been so allocated under an existing formally and finally approved budget. Should this Agreement terminate under the provisions of this Section, the terminating Party will provide the other Party with written notice as soon as is reasonably possible of the pending termination under this provision, the effective date of which shall be at the end of the terminating Party's fiscal year in which funds had previously been allocated. Notwithstanding the foregoing, the Parties hereto warrant and represent that any expenditures of funds for services to be provided hereunder will be made from current revenues available to the Party making the expenditures. XV SOVEREIGN IMMUNITY The parties agree that no party has waived its sovereign immunity by entering into and performing their respective obligations under this Agreement 9 XVI MISCELLANEOUS DRAFTING PROVISIONS This Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. Headings in this Agreement are for the convenience of the parties and are not intended to be used in construing this document. EXECUTED hereto on the day and year shown above. Grapevine-Colleyville ISD City of Grapevine,Texas By: id_ Q. By: President, Board of Trustees Bruno Rumbelow, City Manager Attest: Attest: 1.4be2i Secretary, B of rus es Joth BIUWIL City Secretary c 00<<s APPROVED AS TO FORM: APPROVED AS TO FORM: 4j401Aibl - James on, Brackett& Ellis, P.C. r- , B6o2y74 Lowry, L.L.P. J bhp o�l� 10 Exhibit A Proposed Fiber - 5/5/15 Fin Station IS ; 4 . _ 5) . ' • - Fin Station S2 a...r�rr sw« .... Legend i jsaioola \ ' ISD Facilities l • Adnin Bldg ` _-__ f • ECDC - - e•.n+e ' I ...fife Station M woer AA • Swim Center ' • - - ® Fire Stations _. .. _ .. i C.ty lints , .. ..J . . , DPW Airport iaar.rry sa.w ' •iimm Existing Fiber Cable I . • tt�GPV I GCISD Joint Pipe J " `• -1 Proposed Fiber Status .r _. ..conemib L ,� C i �� ---1 Combine wall Utilities ` NEW Proposed * ` i A'r_-. I . —Northisate Comm. , ii—ii Proposed ........iii Redundant link Thuierl /V - - —. ers..d Scheel . m C••••TIO!M• (//7 res am.a Fife Station#3 I(1 awar.ro Saw r • anis acrset t.........o.....,..,•,4••••••..,.........o.....,..,•,4••••••.. '^ Y--\\.�,1 .s 4 ..C Ws 1. . . memo id* 0 - erhool .w0•a School :•: lbetwoter,UMW I. f- Maaaaew ar!•el wM • III te -- e l* N 0 0375 075 15 2.25 3u � W E Maas s "� . W S