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R-09-05-14-9C1 - 5/14/2009RESOLUTION NO. R -09-05-14-9C1 WHEREAS, the Upper Brushy Creek Water Control and Improvement District ("District") proposes to construct a City -owned "Early Warning System Base Station Tower" and associated improvements (collectively referred to as "Tower") on City -owned real property located at 2701 North Mays Street, and WHEREAS, the City of Round Rock wishes to enter into a Joint Use Agreement with the District for the joint use of the Tower, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Joint Use Agreement with the District, a copy of said Agreement being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 14th day of May, 2009. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA City Secretary 0: \xdox\SCClnts\0112\0905\MUNICIPAL \x9051401 .00C 00156209/j kg JOINT USE AGREEMENT between CITY OF ROUND ROCK, TEXAS ("City") and UPPER BRUSHY CREEK WATER CONTROL AND IMPROVEMENT DISTRICT ("District") covering a District -constructed and City -owned "Early Warning System Base Station Tower" sited on City -owned real property located at 2701 North Mays Street Round Rock, Texas EXHIBIT JOINT USE AGREEMENT ARTICLE 1. PARTIES. Section 1.01. This Joint Use Agreement (hereinafter referred to as the "Agreement") is entered into on the day of the month of , 2009, by and between the CITY OF ROUND ROCK, TEXAS, a home -rule municipal corporation (hereinafter referred to as the "City"), and the UPPER BRUSHY CREEK WATER CONTROL AND IMPROVEMENT DISTRICT, a Texas special district (hereinafter referred to as the "District"). ARTICLE 2. PURPOSE STATEMENT. Section 2.01. The purpose of this Agreement is to provide for the District to construct a City -owned "Early Warning System Base Station Tower" and associated improvements (hereinafter referred to collectively as the "Tower"), on City -owned real property described and delineated in Exhibit "A" attached hereto and incorporated herein by reference for all purposes; and, further, to provide for joint use of the Tower by both parties hereto. Provision for construction, operation and maintenance of the Tower, and provision for joint use thereof, shall be of benefit to the citizens and constituents of the City and the District. ARTICLE 3. PREMISES ON WHICH TOWER IS LOCATED. Section 3.01. The Tower shall be constructed by the District on the premises of the City of Round Rock Police Facility located at 2701 North Mays Street, Round Rock, Texas 78665 (hereinafter referred to as the "Premises"), in the specific location on the property as delineated by the City. ARTICLE 4. CONSIDERATION. Section 4.01. Consideration by the District. Consideration for this Agreement by the District shall be the completion of the Tower to be constructed and utilized for operation of a Flood Monitoring System by the District for the purposes and under the conditions delineated herein. Section 4.02. Consideration by the City. Consideration for this Agreement by the City shall be provision of the real property upon which the Tower is sited, operation of the Tower, and provision of certain maintenance obligations. ARTICLE 5. TERM. Section 5.01. Term. The term of this Agreement shall be for fifty (50) years, beginning on the 1st day of the month of June, 2009 and ending on the 31st day of the month of May, 2059. Such term is subject to earlier termination as otherwise provided herein. Negotiated renewal for an additional fifty (50) year renewal term is not prohibited by the teens of this Agreement. 2 ARTICLE 6. IMPROVEMENTS BY DISTRICT. Section 6.01. Tower Improvements. The District shall cause to be designed, constructed and installed upon the Premises, at no cost to the City, an "Early Warning System Base Station Tower" generally described as follows: a 300' self-supporting tripod tower structure supported on a foundation of drilled piers, each pier being approximately 60" in diameter and being buried 30' in the ground; with the three tower legs being approximately 35' apart one from the other; with the tower being encircled by a ring approximately 50' in diameter containing copper wire attached to each leg and linked one to the other; and with the tower being constructed in such manner as to maintain necessary vertical spacing so as to not interfere in any way whatsoever with helipad safety and requirements. Section 6.02. Associated Improvements. The District shall also cause to be designed, constructed and installed upon the Premises, at no cost to the City, certain associated improvements generally described as follows: a pre -cast concrete building approximately 10' x 10' located inside the triangle formed by the three legs of the Tower, intended and used as a District equipment building for the Tower. The parties expressly acknowledge that the City will be responsible for provision of 120 volt electricity to the building so that the District may install (and thereafter be responsible for) minor appliances such as a computer, air conditioning/heating system, and de -humidifier. The parties further expressly acknowledge that the City will be responsible for provision of telephone line service to the building so that the District may install (and thereafter be responsible for) telephone service. Section 6.03. Construction Plans. The plans for construction of the Tower and associated improvements shall be prepared by engineers, architects and/or consultants of the District's choosing, subject to the approval of the City, which approval shall not unreasonably be withheld. The District shall administer the contract or contracts let for all construction work on the Tower. Such administration shall include advertising for bids, reviewing bids received, selecting contractors, and providing oversight of the construction. All plans for construction of the Tower shall first be submitted to the City for review and comment. No fees or expenses shall be charged to the City in connection with the construction of the Tower. Section 6.04. Restoration of Premises. The District shall restore the Premises and surrounding premises to as nearly the same condition as appeared before construction activities. ARTICLE 7. PERMITS. Section 7.01. The City shall issue all necessary permits and authorization for construction of the Tower and associated improvements, and shall perform required inspections without charge to the District; provided, however, that all such construction by the District must conform to all applicable construction standards and regulations of any involved entity. ARTICLE 8. IMPROVEMENTS TO BECOME PROPERTY OF CITY. Section 8.01. All improvements, buildings and facilities delineated in Section 6.01 and 6.02 herein, exclusive of the pre -cast concrete building and portable equipment and supplies, constructed or placed within the Premises by the District shall become the unencumbered property of the City when construction and the contractor's warranty period is completed. 3 ARTICLE 9. JOINT USE OF IMPROVEMENTS. Section 9.01. Joint Use of Tower. It is recognized by the parties hereto that use of the Tower shall, at all times during the term of this Agreement, be shared as follows: (a) The City shall have the exclusive right to install, access, use, service, maintain, position, re -position, replace, and remove as many antennae as the structure and proper use thereof would accommodate, but only from the ground up to a height on the Tower of 250'. (b) The District shall have the exclusive right to install, access, use, service, maintain, position, re -position, replace, and remove as many antennae as the structure and proper use thereof would accommodate, but only from a height on the Tower of 250' up to and including the top of the Tower at approximately 300'. Section 9.02. Access. Each party hereto expressly acknowledges its understanding that the City shall have the sole right and authority to control access to the Premises. The District hereby notifies the City that it will, at a minimum, require access to the Premises once per month for the purpose of performing diagnostics. Any access to the Premises by the District shall come via the customary established procedures of the City of Round Rock Police Department. Section 9.03. Compliance with Laws. Each party hereto expressly acknowledges that it will comply with all governmental laws, ordinances and regulations applicable to the use of the Premises or any alterations or improvements to the Premises, and will promptly comply with all governmental orders and directives for the correction, prevention, and abatement of nuisances in, upon, or connected with the Premises, all at its own expense. Section 9.04. Reimbursement to District for Antennae Relocation. Each party hereto expressly acknowledges its understanding that the District shall have and bear the obligation to reimburse the City for the actual costs of new antennae for the City's Police Department and Fire Department which are to be installed by the City on the Tower. Further, each party hereto expressly acknowledges its understanding that the District shall enjoy the benefit of the following: (i) any return from the City's sale of used equipment, antennae, tower structure, and the like; (ii) any return from scrap value of used equipment, antennae, tower structure, and the like; and (iii) any return from re -use value of used equipment, antennae, tower structure, and the like. Such benefit to the District shall be manifested by the City deducting such realized amounts from the final total cost which the District must pay to the City. ARTICLE 10. OPERATION AND MAINTENANCE. Section 10.01. The City shall be responsible for causing to be performed, and paying for, all maintenance and operation of the Tower and the City's associated improvements. ARTICLE 11. INSURANCE. Section 11.01. Coverage Required. The City shall be responsible for providing adequate coverage of the Tower structure and of the City's antennae as delineated in Section 9.01(a), and the City retains the right to self -insure. The Tower shall be designated as a public 4 safety facility. The District shall be responsible for providing adequate coverage of the District's antennae as delineated in Section 9.01(b). Section 11.02. Prohibited Uses. Neither the City nor the District shall not permit the Premises to be used for any purpose or in any manner that would void the insurance thereon or increase the insurance risk or cost thereof. ARTICLE 12. LIABILITY AND INDEMNIFICATION. Section 12.01. Liability. The City shall not be liable or responsible to the District for any loss or damage to any property or person occasioned by theft, act of God, public enemy, injunction, riot, strike, insurrection, war, court order, requisition or order of governmental body or authority or any similar matter. Section 12.02. Indemnification by District. The City shall not be liable to the District, or to the District's agents, servants, employees, customers or invitees and the District shall indemnify, defend and hold the City hannless from and against any and all fines, suits, claims, demands, losses, liabilities, actions and costs (including court costs and attorney's fees) arising from (i) any injury to person or damage to property caused by an act, omission or neglect of the District, the District's agents, servants, employees, customers, contractors, or invitees, (ii) the District's use of the Premises or the conduct of the District's business or profession, (iii) any activity, work, or thing done, permitted or suffered by the District in or about the Premises or the property or (iv) any breach or default in the performance of any obligation on the District's part to be performed under the terms of this Agreement. THIS INDEMNITY SHALL APPLY REGARDLESS OF WHETHER THE LOSS IN QUESTION ARISES OR IS ALLEGED TO HAVE ARISEN 1N PART FROM ANY NEGLIGENT ACT OR OMISSION OF THE CITY OR THE CITY'S AGENTS OR EMPLOYEES, FROM STRICT LIABILITY OF ANY SUCH PERSONS OR OTHERWISE, BUT IN SUCH EVENT THE DISTRICT SHALL NOT BE RESPONSIBLE FOR THAT PORTION OF ANY LOSS WHICH IS HELD TO BE CAUSED BY THE NEGLIGENCE OR STRICT LIABILITY OF THE CITY OR THE CITY'S AGENTS OR EMPLOYEES. The District shall notify the City promptly of any significant accidents involving injury to persons or property. The District shall give the City prompt notice of any criminal or suspicious conduct within or about the Premises, and/or any personal injury or property damage caused thereby. The District hereby expressly acknowledges the adequacy of, and expressly acknowledges that the City shall not be held responsible for additional safety or security measures on the property. Section 12.03. Indemnification by City. The District shall not be liable to the City, or to the City's agents, servants, employees, customers or invitees and the City shall indemnify, defend and hold the District hannless from and against any and all fines, suits, claims, demands, losses, liabilities, actions and costs (including court costs and attorney's fees) arising from (i) any injury to person or damage to property caused by an act, omission or neglect of the City, the City's agents, servants, employees, customers, contractors, or invitees, (ii) the City's use of the Premises or the conduct of the City's business or profession, (iii) any activity, work, or thing done, permitted or suffered by the City in or about the Premises or the property or (iv) any breach or default in the performance of any obligation on the City's part to be performed under the terms of this Agreement. THIS INDEMNITY SHALL APPLY REGARDLESS OF 5 WHETHER THE LOSS IN QUESTION ARISES OR IS ALLEGED TO HAVE ARISEN IN PART FROM ANY NEGLIGENT ACT OR OMISSION OF THE DISTRICT OR THE DISTRICT'S AGENTS OR EMPLOYEES, FROM STRICT LIABILITY OF ANY SUCH PERSONS OR OTHERWISE, BUT IN SUCH EVENT THE CITY SHALL NOT BE RESPONSIBLE FOR THAT PORTION OF ANY LOSS WHICH IS HELD TO BE CAUSED BY THE NEGLIGENCE OR STRICT LIABILITY OF THE DISTRICT OR THE DISTRICT'S AGENTS OR EMPLOYEES. The City shall notify the District promptly of any significant accidents involving injury to persons or property. The City shall give the District prompt notice of any criminal or suspicious conduct within or about the Premises, and/or any personal injury or property damage caused thereby. The City hereby expressly acknowledges the adequacy of, and expressly acknowledges that the District shall not be held responsible for additional safety or security measures on the property. Section 12.04. No Special Damages. Neither party shall be liable to the other hereunder for incidental, special, consequential, or punitive damages. ARTICLE 13. DEFAULT AND REMEDY. Section 13.01. Event of Default Defined. The following shall be deemed to be a default in or breach of either party's obligations under this Agreement: If either party shall fail to comply with any term, provision or covenant of this Agreement, and shall not cure such failure within sixty (60) days after written notice thereof by the other party; provided, however, that if the failure to cure is of such a nature that it cannot reasonably be cured within said period, then and in that event the party shall not be deemed in default so long as the party commences curing such failure within said period, and diligently and uninterruptedly prosecutes same to completion, Section 13.02. Remedy for Default. Upon an occurrence of default, the parties shall have the option to pursue any remedies available to them without any notice or demand. Should either party default in any of its obligations or covenants imposed by this Agreement, the other party shall be entitled to terminate this Agreement upon sixty (60) days' written notice. ARTICLE 14. WAIVER OF RIGIITS AND REMEDIES. Section 14.01. No waiver by either party of any tenn or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. It is expressly understood and agreed by the parties that waiver of any right or remedy provided under this Agreement shall not preclude the exercise of any other right or remedy under this Agreement or any provision of law, nor shall any action taken in the exercise of any right or remedy be deemed a waiver of any other rights or remedies. ARTICLE 15. ENTIRE AGREEMENT. Section 15.01. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof, and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding. 6 ARTICLE 16. CHANGES AND AMENDMENTS. Section 16.01. Except as specifically provided otherwise in this Agreement, any alterations, additions or deletions to its terms shall only be accomplished by amendment hereto in writing and executed by both parties to this Agreement. ARTICLE 17. VENUE AND JURISDICTION. Section 17.01. This Agreement has been executed in the State of Texas and shall be governed and construed in all respects under and in accordance with the laws of the State of Texas. All obligations of the parties created hereunder are performable in Round Rock, Texas. The parties expressly agree that exclusive venue and jurisdiction for any dispute between the parties or involving this Agreement in any way, and all causes of action in connection herewith, shall be in Williamson County, Texas. ARTICLE 18. SEVERABILITY. Section 18.01. In case any one or more 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 hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. ARTICLE 19. NOTICE. Section 19.01. Notice shall be mailed to the addresses designated herein or as may be designated in writing by the parties from time to time, and shall be deemed received when sent postage prepaid U.S. mail to the following addresses: FOR THE CITY: City of Round Rock, Texas 221 East Main Street Round Rock, TX 78664 Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 FOR THE DISTRICT: Upper Brushy Creek WCID 309 East Main Street Round Rock, TX 78664 and to: and to: Charles D. Crossfield, District's Attorney 309 East Main Street Round Rock, TX 78664 EXECUTED on this the day of the month of , 2009. 7 CITY OF ROUND ROCK, TEXAS ATTEST: By: Name: Title: Date: FOR CITY, APPROVED AS TO FORM: By: Stephan L. Sheets, City Attorney By: Sara L. White, City Secretary UPPER BRUSHY CREEK WATER CONTROL AND IMPROVEMENT DISTRICT By: Name: Title: Date: ATTEST: By: Board Secretary FOR DISTRICT, APPROVED AS TO FORM: By: Charles D. Crossfield, District's Attorney 8 EXHIBIT "A" LOCATION OF PROPERTY AND BASE STATION RELOCATION PLAN AND ELEVATION Location of Property: The "Early Warning System Base Station Tower" and associated improvements are to be sited and located on City -owned real property on the premises of the City of Round Rock Police Facility at 2701 North Mays Street, Round Rock, Texas 78665, and the specific location on such property for placement of the tower and associated improvements is as delineated by the City. Base Station Relocation Plan and Elevation: Attached. ,1W�« „O elMI ROW MCI atingq0IN Vuu M�Jj NOIIVA313 ONV NV1d MWS NOLLV00132J NOIIVIS 3518 'QI3M )433H3 AHS1188 Y3dd0 anon to pVg VO� iw el7]p ]T]s ]se Deni N so/]/O r oo.L . Ono 0 MILL WI FOR CONSTRUCTION US- -eve-NWW1 OWNn W\M pue v36vaB3KtyWJ3v/llry SY3\a WO (\�'N 651u l]H]b31]v Z uwW7:NW1]�DWs'N95L.K-N\SMVmv\tlMN� rotasinfgrell DATE: May 7, 2009 SUBJECT: City Council Meeting — May 14, 2009 ITEM: 9C1. Consider a resolution authorizing the Mayor to execute a Joint Use Agreement with the Upper Brushy Creek Water Control and Improvement District regarding the "Early Warning System Base Station Tower" sited at the Round Rock Police Station at 2701 North Mays Street. Department: Administration Staff Person: Jim Nuse, City Manager Tim Ryle, Assistant Police Chief Justification: The Upper Brushy Creek Water Control and Improvement District (WCID) serves, among others, the citizens of Round Rock relating to "early warning system" emergency matters. Because the WCID must have a high -point location on which to set a base station tower, it seeks to contract with the City to locate such tower on the best available site, that being the Round Rock Police Facility at 2701 North Mays Street. Under the attached joint use agreement, the WCID will construct and maintain the tower for a 50 -year period while the City will own the tower and the land on which it is constructed. Additionally, the City will have the right to place multiple antennae on the tower from the ground up to a height of 250'. Funding: Cost: N/A Source of funds: N/A Outside Resources: N/A Background Information: The City and WCID have negotiated this joint use agreement in order to benefit the citizens and constituents of both entities in relation to emergency warning matters. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS JOINT USE AGREEMENT between CITY OF ROUND ROCK, TEXAS ("City") and UPPER BRUSHY CREEK WATER CONTROL AND IMPROVEMENT DISTRICT ("District") covering a District -constructed and City -owned "Early Warning System Base Station Tower" sited on City -owned real property located at 2701 North Mays Street Round Rock, Texas 00156209/jkg JOINT USE AGREEMENT ARTICLE 1. PARTIES. Section 1.01. This Joint Use Agreement (hereinafter referred to as the "Agreement") is entered into on the day of the month of , 2009, by and between the CITY OF ROUND ROCK, TEXAS, a home -rule municipal corporation (hereinafter referred to as the "City"), and the UPPER BRUSHY CREEK WATER CONTROL AND IMPROVEMENT DISTRICT, a Texas special district (hereinafter referred to as the "District"). ARTICLE 2. PURPOSE STATEMENT. Section 2.01. The purpose of this Agreement is to provide for the District to construct a City -owned "Early Warning System Base Station Tower" and associated improvements (hereinafter referred to collectively as the "Tower"), on City -owned real property described and delineated in Exhibit "A" attached hereto and incorporated herein by reference for all purposes; and, further, to provide for joint use of the Tower by both parties hereto. Provision for construction, operation and maintenance of the Tower, and provision for joint use thereof, shall be of benefit to the citizens and constituents of the City and the District. ARTICLE 3. PREMISES ON WHICH TOWER IS LOCATED. Section 3.01. The Tower shall be constructed by the District on the premises of the City of Round Rock Police Facility located at 2701 North Mays Street, Round Rock, Texas 78665 (hereinafter referred to as the "Premises"), in the specific location on the property as delineated by the City. ARTICLE 4. CONSIDERATION. Section 4.01. Consideration by the District. Consideration for this Agreement by the District shall be the completion of the Tower to be constructed and utilized for operation of a Flood Monitoring System by the District for the purposes and under the conditions delineated herein. Section 4.02. Consideration by the City. Consideration for this Agreement by the City shall be provision of the real property upon which the Tower is sited, operation of the Tower, and provision of certain maintenance obligations. ARTICLE 5. TERM. Section 5.01. Term. The term of this Agreement shall be for fifty (50) years, beginning on the 1st day of the month of June, 2009 and ending on the 31st day of the month of May, 2059. Such term is subject to earlier termination as otherwise provided herein. Negotiated renewal for an additional fifty (50) year renewal term is not prohibited by the terms of this Agreement. 2 ARTICLE 6. IMPROVEMENTS BY DISTRICT. Section 6.01. Tower Improvements. The District shall cause to be designed, constructed and installed upon the Premises, at no cost to the City, an "Early Warning System Base Station Tower" generally described as follows: a 300' self-supporting tripod tower structure supported on a foundation of drilled piers, each pier being approximately 60" in diameter and being buried 30' in the ground; with the three tower legs being approximately 35' apart one from the other; with the tower being encircled by a ring approximately 50' in diameter containing copper wire attached to each leg and linked one to the other; and with the tower being constructed in such manner as to maintain necessary vertical spacing so as to not interfere in any way whatsoever with helipad safety and requirements. Section 6.02. Associated Improvements. The District shall also cause to be designed, constructed and installed upon the Premises, at no cost to the City, certain associated improvements generally described as follows: a pre -cast concrete building approximately 10' x 10' located inside the triangle formed by the three legs of the Tower, intended and used as a District equipment building for the Tower. The parties expressly acknowledge that the City will be responsible for provision of 120 volt electricity to the building so that the District may install (and thereafter be responsible for) minor appliances such as a computer, air conditioning/heating system, and de -humidifier. The parties further expressly acknowledge that the City will be responsible for provision of telephone line service to the building so that the District may install (and thereafter be responsible for) telephone service. Section 6.03. Construction Plans. The plans for construction of the Tower and associated improvements shall be prepared by engineers, architects and/or consultants of the District's choosing, subject to the approval of the City, which approval shall not unreasonably be withheld. The District shall administer the contract or contracts let for all construction work on the Tower. Such administration shall include advertising for bids, reviewing bids received, selecting contractors, and providing oversight of the construction. All plans for construction of the Tower shall first be submitted to the City for review and comment. No fees or expenses shall be charged to the City in connection with the construction of the Tower. Section 6.04. Restoration of Premises. The District shall restore the Premises and surrounding premises to as nearly the same condition as appeared before construction activities. ARTICLE 7. PERMITS. Section 7.01. The City shall issue all necessary permits and authorization for construction of the Tower and associated improvements, and shall perform required inspections without charge to the District; provided, however, that all such construction by the District must conform to all applicable construction standards and regulations of any involved entity. ARTICLE 8. IMPROVEMENTS TO BECOME PROPERTY OF CITY. Section 8.01. All improvements, buildings and facilities delineated in Section 6.01 and 6.02 herein, exclusive of the pre -cast concrete building and portable equipment and supplies, constructed or placed within the Premises by the District shall become the unencumbered property of the City when construction and the contractor's warranty period is completed. 3 ARTICLE 9. JOINT USE OF IMPROVEMENTS. Section 9.01. Joint Use of Tower. It is recognized by the parties hereto that use of the Tower shall, at all times during the term of this Agreement, be shared as follows: (a) The City shall have the exclusive right to install, access, use, service, maintain, position, re -position, replace, and remove as many antennae as the structure and proper use thereof would accommodate, but only from the ground up to a height on the Tower of 250'. (b) The District shall have the exclusive right to install, access, use, service, maintain, position, re -position, replace, and remove as many antennae as the structure and proper use thereof would accommodate, but only from a height on the Tower of 250' up to and including the top of the Tower at approximately 300'. Section 9.02. Access. Each party hereto expressly acknowledges its understanding that the City shall have the sole right and authority to control access to the Premises. The District hereby notifies the City that it will, at a minimum, require access to the Premises once per month for the purpose of performing diagnostics. Any access to the Premises by the District shall come via the customary established procedures of the City of Round Rock Police Department. Section 9.03. Compliance with Laws. Each party hereto expressly acknowledges that it will comply with all governmental laws, ordinances and regulations applicable to the use of the Premises or any alterations or improvements to the Premises, and will promptly comply with all governmental orders and directives for the correction, prevention, and abatement of nuisances in, upon, or connected with the Premises, all at its own expense. Section 9.04. Reimbursement to District for Antennae Relocation. Each party hereto expressly acknowledges its understanding that the District shall have and bear the obligation to reimburse the City for the actual costs of new antennae for the City's Police Department and Fire Department which are to be installed by the City on the Tower. Further, each party hereto expressly acknowledges its understanding that the District shall enjoy the benefit of the following: (i) any return from the City's sale of used equipment, antennae, tower structure, and the like; (ii) any return from scrap value of used equipment, antennae, tower structure, and the like; and (iii) any return from re -use value of used equipment, antennae, tower structure, and the like. Such benefit to the District shall be manifested by the City deducting such realized amounts from the final total cost which the District must pay to the City. ARTICLE 10. OPERATION AND MAINTENANCE. Section 10.01. The City shall be responsible for causing to be performed, and paying for, all maintenance and operation of the Tower and the City's associated improvements. ARTICLE 11. INSURANCE. Section 11.01. Coverage Required. The City shall be responsible for providing adequate coverage of the Tower structure and of the City's antennae as delineated in Section 9.01(a), and the City retains the right to self -insure. The Tower shall be designated as a public 4 safety facility. The District shall be responsible for providing adequate coverage of the District's antennae as delineated in Section 9.01(b). Section 11.02. Prohibited Uses. Neither the City nor the District shall not permit the Premises to be used for any purpose or in any manner that would void the insurance thereon or increase the insurance risk or cost thereof. ARTICLE 12. LIABILITY AND INDEMNIFICATION. Section 12.01. Liability. The City shall not be liable or responsible to the District for any loss or damage to any property or person occasioned by theft, act of God, public enemy, injunction, riot, strike, insurrection, war, court order, requisition or order of governmental body or authority or any similar matter. Section 12.02. Indemnification by District. The City shall not be liable to the District, or to the District's agents, servants, employees, customers or invitees and the District shall indemnify, defend and hold the City harmless from and against any and all fines, suits, claims, demands, losses, liabilities, actions and costs (including court costs and attorney's fees) arising from (i) any injury to person or damage to property caused by an act, omission or neglect of the District, the District's agents, servants, employees, customers, contractors, or invitees, (ii) the District's use of the Premises or the conduct of the District's business or profession, (iii) any activity, work, or thing done, permitted or suffered by the District in or about the Premises or the property or (iv) any breach or default in the performance of any obligation on the District's part to be performed under the terms of this Agreement. THIS INDEMNITY SHALL APPLY REGARDLESS OF WHETHER THE LOSS IN QUESTION ARISES OR IS ALLEGED TO HAVE ARISEN IN PART FROM ANY NEGLIGENT ACT OR OMISSION OF THE CITY OR THE CITY'S AGENTS OR EMPLOYEES, FROM STRICT LIABILITY OF ANY SUCH PERSONS OR OTHERWISE, BUT IN SUCH EVENT THE DISTRICT SHALL NOT BE RESPONSIBLE FOR THAT PORTION OF ANY LOSS WHICH IS HELD TO BE CAUSED BY THE NEGLIGENCE OR STRICT LIABILITY OF THE CITY OR THE CITY'S AGENTS OR EMPLOYEES. The District shall notify the City promptly of any significant accidents involving injury to persons or property. The District shall give the City prompt notice of any criminal or suspicious conduct within or about the Premises, and/or any personal injury or property damage caused thereby. The District hereby expressly acknowledges the adequacy of, and expressly acknowledges that the City shall not be held responsible for additional safety or security measures on the property. Section 12.03. bidemnification by City. The District shall not be liable to the City, or to the City's agents, servants, employees, customers or invitees and the City shall indemnify, defend and hold the District harmless from and against any and all fines, suits, claims, demands, losses, liabilities, actions and costs (including court costs and attorney's fees) arising from (i) any injury to person or damage to property caused by an act, omission or neglect of the City, the City's agents, servants, employees, customers, contractors, or invitees, (ii) the City's use of the Premises or the conduct of the City's business or profession, (iii) any activity, work, or thing done, permitted or suffered by the City in or about the Premises or the property or (iv) any breach or default in the performance of any obligation on the City's part to be performed under the terms of this Agreement. THIS INDEMNITY SHALL APPLY REGARDLESS OF 5 WHETHER THE LOSS IN QUESTION ARISES OR IS ALLEGED TO HAVE ARISEN IN PART FROM ANY NEGLIGENT ACT OR OMISSION OF THE DISTRICT OR THE DISTRICT'S AGENTS OR EMPLOYEES, FROM STRICT LIABILITY OF ANY SUCH PERSONS OR OTHERWISE, BUT IN SUCH EVENT THE CITY SHALL NOT BE RESPONSIBLE FOR THAT PORTION OF ANY LOSS WHICH IS HELD TO BE CAUSED BY THE NEGLIGENCE OR STRICT LIABILITY OF THE DISTRICT OR THE DISTRICT'S AGENTS OR EMPLOYEES. The City shall notify the District promptly of any significant accidents involving injury to persons or property. The City shall give the District prompt notice of any criminal or suspicious conduct within or about the Premises, and/or any personal injury or property damage caused thereby. The City hereby expressly acknowledges the adequacy of, and expressly acknowledges that the District shall not be held responsible for additional safety or security measures on the property. Section 12.04. No Special Damages. Neither party shall be liable to the other hereunder for incidental, special, consequential, or punitive damages. ARTICLE 13. DEFAULT AND REMEDY. Section 13.01. Event of Default Defined. The following shall be deemed to be a default in or breach of either party's obligations under this Agreement: If either party shall fail to comply with any term, provision or covenant of this Agreement, and shall not cure such failure within sixty (60) days after written notice thereof by the other party; provided, however, that if the failure to cure is of such a nature that it cannot reasonably be cured within said period, then and in that event the party shall not be deemed in default so long as the party commences curing such failure within said period, and diligently and uninterruptedly prosecutes same to completion. Section 13.02. Remedy for Default. Upon an occurrence of default, the parties shall have the option to pursue any remedies available to them without any notice or demand. Should either party default in any of its obligations or covenants imposed by this Agreement, the other party shall be entitled to terminate this Agreement upon sixty (60) days' written notice. ARTICLE 14. WAIVER OF RIGHTS AND REMEDIES. Section 14.01. No waiver by either party of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. It is expressly understood and agreed by the parties that waiver of any right or remedy provided under this Agreement shall not preclude the exercise of any other right or remedy under this Agreement or any provision of law, nor shall any action taken in the exercise of any right or remedy be deemed a waiver of any other rights or remedies. ARTICLE 15. ENTIRE AGREEMENT. Section 15.01. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof, and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding. 6 ARTICLE 16. CHANGES AND AMENDMENTS. Section 16.01. Except as specifically provided otherwise in this Agreement, any alterations, additions or deletions to its terms shall only be accomplished by amendment hereto in writing and executed by both patties to this Agreement. ARTICLE 17. VENUE AND JURISDICTION. Section 17.01. This Agreement has been executed in the State of Texas and shall be governed and construed in all respects under and in accordance with the laws of the State of Texas. All obligations of the parties created hereunder are perfortnable in Round Rock, Texas. The parties expressly agree that exclusive venue and jurisdiction for any dispute between the parties or involving this Agreement in any way, and all causes of action in connection herewith, shall be in Williamson County, Texas, ARTICLE 18. SEVERABILITY. Section 18.01. In case any one or more 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 hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. ARTICLE 19. NOTICE. Section 19.01. Notice shall be mailed to the addresses designated herein or as may be designated in writing by the parties from time to time, and shall be deemed received when sent postage prepaid U.S. mail to the following addresses: FOR THE CITY: City of Round Rock, Texas 221 East Main Street Round Rock, TX 78664 Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 FOR THE DISTRICT: Upper Brushy Creek WCID 309 East Main Street Round Rock, TX 78664 and to: and to: Charles D. Crossfield, District's Attorney 309 East Main Street Round Rock, TX 78664 EXECUTED on this the day of the month of , 2009. 7 CITY OF ROUND ROCS, TEXAS ATTEST: By: Name: Title: Date: FOR CIT By: Th By: v — Pdhvt M—Gp4tW Sara L. White, City Secretary AAAS t% • (79 PROVED A TO FORM: Stepha 1 . Sheets, City Attorney UPPER BZUSITY CR ,E WATER CONTROL AND IMPROVEMENT DISTRICT By: Name: V"'lit Title: e reL Date:Deo ji 510 06`) ATTEST: By: -1CD 6L\,\ Board Secretary FOR DISTRICT, APPROVED AS TO FORM: C iarD. Cross eld, District's Attorney By: 8 EXHIBIT "A" LOCATION OF PROPERTY AND BASE STATION RELOCATION PLAN AND ELEVATION Location of Property: The "Early Warning System Base Station Tower" and associated improvements are to be sited and located on City -owned real property on the premises of the City of Round Rock Police Facility at 2701 North Mays Street, Round Rock, Texas 78665, and the specific location on such property for placement of the tower and associated improvements is as delineated by the City. Base Station Relocation Plan and Elevation: Attached. 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