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R-03-12-18-8E5 - 12/18/2003RESOLUTION NO. R-03-12-18-8135 WHEREAS, Dell USA, L.P. ("Dell") is the owner of certain tracts of land abutting Greenlawn Boulevard right-of-way, and WHEREAS, the City of Round Rock ("City") owns the Greenlawn Boulevard right-of-way, and WHEREAS, Dell and the City propose to construct a pedestrian crossing bridge to be built on and over the Greenlawn Boulevard right- of-way, and WHEREAS, the City has agreed to keep the bridge open to use by the public, and Dell has agreed to reimburse the City for maintenance of the bridge, and WHEREAS, the City and Dell wish to enter into a Pedestrian Bridge Agreement in regards to this matter, 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 Pedestrian Bridge Agreement with Dell USA, L.P., a copy of same 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. QPFDeSktop\::OrMA/WORLDOX/C:/WDOXjRESOTTJrI/R3121BE5.WPD/Sc RESOLVED this 18th day of December, 2003. ELL, Mayor i of Round Rock, Texas ATTEST: ) p , 1-4), ak�� CHRISTINE R. MARTINEZ, City Secr tary @PBDeSktop\.:ODMA/WORLDOX_!O:/WDOX/RESOLUTI/R3121SE5.WPD/9C 2. PEDESTRIAN BRIDGE AGREEMENT This Pedestrian Bridge Agreement (this "Agreement"), having an effective date of 2004 (the "Effective Date"), is executed by and between DELL USA L.P. [confirming with client], a Texas limited partnership ("Dell"), and the City of Round Rock, a Texas home rule municipality (the "City"). RECITALS A. Dell is the owner of certain tracts of land abutting Greenlawn Boulevard right- of-way in Round Rock, Texas. B. The City owns the Greenlawn Boulevard right-of-way and a pedestrian crossing bridge located on and over the Greenlawn Boulevard right-of-way in the location depicted on Exhibit A attached hereto (such pedestrian crossing bridge and all appurtenances thereto, including, without limitation, the fence located in the center median of the Greenlawn Boulevard right-of-way, is referred to herein as the "Project"). C. Dell has agreed to pay certain amounts to the City for the City's agreement to maintain the Project and to keep the Project open to use by the public, as well as certain amounts to cover the actual costs associated with the City's ownership of such Project, subject to the terms set forth in this Agreement. NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants and benefits herein contained, and subject to all of the terms and conditions hereof, Dell and the City agree as follows: AGREEMENT 1. Operation and Maintenance Services Performed by Cid. During the term(s) of this Agreement, the City shall undertake, perform and provide, either through its own employees or contractors, the operation and inspection of, routine maintenance and repairs to, and insurance for the Project to keep such Project open for use by the up blic. 2. Term. This Agreement shall be effective for an initial term of thirty (30) years ("Initial Term"), unless sooner terminated according to other terms and conditions set forth herein. One hundred eighty (180) days rior to the expiration of the Initial Term ("Renewal Deadline"), Dell shall notify the City, in writing that it desires to extend this Agreement an additional term of twenty (20) years "Extension Term"). Such Extension Term shall be subject to the terms and conditions, including termination, set forth in this Agreement. 2,, Payments by Dell. (a) During the first thirty (30) years following the ueww:I a Effective Date (such thirty (30) year period being referred to herein as the "Initial Term"), Dell shall pay annually to the City the amount of Three Thousand Dollars ($3 000.00 O:\wdox\CORK\g nl\dellped\00060I40.DOC EXHIBIT "A" ("Base Amount"1 for each calendar year during which the City keeps the Project open for {Deleted: use by the public. Such Base Amount shall be increased by three percent 3%) annually. Each such annual payment shall be made in advance. The first such payment shall be made by Dell to the City within five (5) business days after the Effective Date and such first payment shall be pro rated, if applicable, according to the number of days left in the calendar year in which the Effective Date falls. Thereafter, each such payment by Dell shall be made on or before January 1 of the applicable calendar year. In the event Dell does not timely make any such payment, the City shall notify Dell of such failure and Dell shall have thirty (30) days following Dell's receipt of such notice to make such payment. In the event Dell does not make any such payment following the expiration of such 30.-, day Period, then this Agreement shall be deemed to have automatically - Deleted: _ ..._._...._._..___ __ . - terminated upon the expiration of such 30 day period and, except for Dell's obligation to .._..... .......... remove the Project and restore the portion of the Greenlawn Boulevard right-of-way upon which the Project is located (the "Project Area") to a similar condition which existed prior to the construction of the Prc j ecj neither party shall have any right and/or _ _ Deleted: [as such obligation is set forth obligation under this Agreement. The City may, within thirty (30) days following any this Paragraph 3(a)] automatic termination of this Agreement under this Paragraph 3(a), notify Dell in writing that the City requires Dell to remove the Project and restore the Project Area. Upon Dell's timely receipt of such written notice from the City, Dell shall promptly commence to cause such removal/restoration at Dell's sole cost. If the City fails to timely give such notice to Dell, Dell shall have no obligation to remove the Project and/or restore the Project Area as set forth in this Paragraph 3(a)t {Deleted: (b)Sixty (60) days prior to the Renewal Deadline, the City shall prepare and - Deleted: On or before one hundred— deliver to Dell any modifications to the budget anannual payment that Dell shall be eighty (180) days following the expiration of the fust thirty (30) years required to pay to the City during each calendar year for the ,extension Term, Such following the Effective Date budget shall be a commercially reasonable estimate of the City's cost in inspecting, a maintainingand insuring the Project during each year of the Extension Term. On or g � g Y Deleted: indicating the before the Renewal Deadline. shall notify the City if Dell desires to renew this Dell -------- ------ -_J Deleted: twenty (20) year period (the " Agreement for the Extension Term. If Dell notifies the City that Dell desires to renew this Deleted: ") following the expiration of Agreement for the Extension Term, then this Agreement shall continue in full force and the Initial Tenn. effect, except that the annual payment paid by Dell to the City as set forth in Paragraph withinthirty (30) days J 3(a) above shall be the amount set forth for the applicable year in the City's budget as following Dell's receipt of such budget delivered to Dell. In the event Dell does not timely notify the City that Dell desires to renew this Agreement for the Extension Term, then this Agreement shall be deemed to have automatically terminated upon the expiration of the Initial Term and, except for Dell's obligation to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project. neither party shall have any right Deleted: [as such obligation is set forth - - and/or obligation under this Agreement. The City may, within thirty (30) days following in this Paragraph 3(b)] any automatic termination of this Agreement under this Paragraph 3(b), notify Dell in writing that the City requires Dell to remove the Project and restore the Project Area. Upon Dell's timely receipt of such written notice from the City, Dell shall promptly commence to cause such removal/restoration at Dell's sole cost. If the City fails to timely give such notice to Dell, Dell shall have no obligation to remove the Project and/or restore the Project Area as set forth in this Paragraph 3(b). 0:\wdox\CORK\gnl\dellped\00060140. DOC (c) This Agreement shall expire at the end of the Extension Term and, except for Dell's obligation to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Proj ect a neither party shall have any right Deleted: [as such obligation is sec forth and/or obligation under this Agreement. The City may, within thirty (30) days following in this paragraph 3(c)] the expiration of the Extension Term, notify Dell in writing that the City requires Dell to remove the Project and restore the Project Area. Upon Dell's timely receipt of such written notice from the City, Dell shall promptly commence to cause such removal/restoration at Dell's sole cost. If the City fails to timely give such notice to Dell, Dell shall have no obligation to remove the Project and/or restore the Project Area as set forth in this Paragraph 3(c). 4. Insurance/Property Coverage. The City shall at all times during the Initial Term and, if applicable, the Extension Term, maintain in full force and effect casualty insurance (or similar property coverage) in an amount equal to the full replacement value of the Project. 5. Destruction or Partial Destruction. (a) Should the Project be damaged or destroyed, the City shall promptly notify Dell of such damage or destruction. Following such damage or destruction, the City shall have the option to either (i) rebuild or repair the Project to its condition prior to such damage or destruction, or (ii) terminate this Agreement and cause Dell to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project. If the City shall notifies Dell that the City desires to terminate this Agreement, then Dell shall have the option to either (i) remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project, in which event this Agreement shall be deemed to have automatically terminated upon the date of such damage or destruction or (ii) rebuild or repair the Project to its condition prior to such damage or destruction. (b) In the event the City elects to rebuild or repair the Project to its condition prior to such damage or destruction, the City shall use commercially reasonable, diligent efforts to complete the repairs/restoration to the Project within a reasonable time following such damage or destruction. During the performance of such repairs/restoration to the Project, the City shall provide an alternative route for the public to cross Greenlawn Boulevard„ [Deleted: remove any fence located in the median of the Greenlawn Boulevard (c) In the event Dell elects to rebuild or repair the Project to its condition prior to such right-of-way.¶ damage or destruction, then (i) the City and Dell shall promptly enter into a mutually —---------- --- —' agreeable temporary license agreement, the terms of which shall be substantially similar to the terms of the Temporary Construction License dated December , 2003 between the City, as licensor, and Dell, as licensee, and (ii) the City shall promptly provide to Dell all proceeds received by the City under the City's casualty insurance (or similar property coverage) described in Paragraph 4 above. In the event Dell elects to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project, then the City shall promptly provide to Dell all proceeds received by the City, less any deductibles assessed to or paid by the City, under the City's casualty insurance (or similar property coverage) described in Paragraph 4 above. 0:\wdox\CORK\gnl\dellped\00060140.DOC 6 Termination for Cause. The City reserves the right to terminate this Agreement if the City Council determines that the Prefect is a risk to the public health, safety or welfare of the citizens of the City. The Cit shall hall provide thirty (30) days written notice to Dell as to when it will be placed upon the City Council Agenda for consideration. Should the City Council determine that the Project is an immediate risk, the City shall give Dell ten (10) days written notice of its intent to close public access to and use of such Project and the parties shall mutually determine a schedule and deadline by which the Project will be removed and the Project Area restored to a similar condition which existed prior to the construction of the Project. Should the City Council determine that the Project is a risk, but not an immediate risk, the City may, at its discretion, give Dell up to six (6) months to remove the Project and restore the Proiect-Area to a similar condition which existed prior to the construction of the Project; however. the Cid may require that the Project be closed to public access and use immediately. 7 Miscellaneous. (a) No Partnership. Dell and the City agree and acknowledge .. Deleted: 6 that with respect to the Project or otherwise by virtue of this Agreement, they are not partners or joint venturers. This Agreement will not be construed in any form or manner to establish a partnership, joint venture or agency, express or implied, nor any employer- employee or borrowed servant relationship by and between the parties. (b) Notice. All notices, demands and requests which may be given or which are required to be given by either party to the other shall be in writing and shall be deemed effective when: (i) personally delivered to the intended recipient; (ii) two (2) days after being sent, by certified or registered mail, return receipt requested, addressed to the intended recipient at the address specified below; (iii) delivered in person to the address set forth below for the party to whom the notice was given; (iv) deposited into the custody of a recognized overnight delivery service such as Federal Express Corporation, Emery, or Lone Star Overnight, addressed to such party at the address specified below; or (v) sent by facsimile, telegram or telex, provided that receipt for such facsimile, telegram or telex is verified by the sender. For purposes of this Agreement, the addresses of the parties for all notices are as follows (unless changed by similar notice in writing given by the particular person whose address is to be changed): If to Dell: If to the Citv: City of Round Rock 221 East Main Street Round Rock, Texas 76574 Attn: Attn: City Manager Fax: Fax: With copy to: With copy _to: Stephan L. Sheets Deleted: Sheets & Crossfield feted: .. ... .. _ _ .._J 309 East Main Street Round Rock, Texas 78664,, Deleted: Fax: Fax: (512) 255-89% { Deleted: 0:\wdox\CORK\gnl\dellped\00060140. DOC (c) Legal Expenses. The party or parties not in default may employ attorneys to pursue its legal rights and, if the party or parties not in default prevails before any court or agency of competent jurisdiction, the defaulting party shall be obligated to pay all expenses incurred by the party or parties not in default, including reasonable attorney's fees. (d) Governing Law. This Agreement shall be governed by and be construed in accordance with the laws of the State of Texas. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law or public policy or otherwise unenforceable, the remaining provisions shall remain in full force and effect, and the parties shall negotiate, in good faith, a substitute, valid, and enforceable provision which most nearly reflects the parties' stated intention as set forth in such affected provision. Venue for actions arising in connection with this Agreement shall be in Williamson County, Texas. (e) Time. Time is of the essence with respect to all matters covered by this Agreement. (f) Binding Effect. This Agreement shall bind the parties to this Agreement, their affiliates, successors, and assigns. No other persons or entities may enforce this Agreement or claim any benefits under this Agreement. There are no oral agreements between the parties hereto with respect to the subject matter hereof. This Agreement shall be subject to change or modification only with the mutual written consent of both parties. (g) Force Majeure. If any party is rendered unable, wholly or in part, by force majeure, including acts of God, natural disasters, civil disturbances, actions of the federal government, or other causes not reasonably within the control of the party claiming such inability to carry out any of its obligations under this Agreement, other than an obligation to pay or provide money, then such obligations of that party, to the extent affected by such event of force majeure and to the extent that due diligence is being used to resume performance at the earliest practicable time, shall be suspended during the continuance of any inability so caused to the extent provided but for no longer period, provided that immediate notice is given to each of the affected parties. Such cause, as far as possible, shall be remedied with all reasonable diligence. (h) Counterparts. The parties agree that this Agreement may be executed in multiple counterparts which, taken together, shall form the contractual agreement of the parties. (i) Authori . The person signing this Agreement warrants that he is authorized to sign this Agreement on behalf of the respective signatory. 0) Assignment. This Agreement, including the rights to service capacity and the obligations to pay certain costs, is assignable, in whole or in part, by either party hereto. 5 O:\wdox\C ORR\gnl\dellped\00060140.DOC [SIGNATURE PAGE(S) FOLLOW] 0:\wdox\CORK\gnl\dellped\00060140.DOC [Signature Page for that Pedestrian Bridge Agreement] Executed to be effective 2004. Dell USA LP By: Dell USA GP LLC, its general partner By: Name: Title: The City of Round Rock By: Name: Nyle Maxwell Title: Mayor. ATTEST: By: Christine R. Martinez, City Secretary APPROVED AS TO FORM: City Attorney Exhibit "A" Depiction of Location of the Project 0:\wdox\CORK\gnl\dellped\00060140. DOC Deleted: - Deleted: Exhibit "A" Depiction of Location of the Project 0:\wdox\CORK\gnl\dellped\00060140.DOC DATE: December 12, 2003 SUBJECT: City Council Meeting - December 18, 2003 ITEM: 8.E.5. Consider a resolution authorizing the Mayor to execute a Pedestrian Bridge Agreement with Dell USA, L.P. for the Dell Pedestrian Bridge. Resource: Tom Word, Chief of P. W. Operations Eric Langhout, Engineer Associate History: Dell pedestrians crossing Greenlawn at the mid -block crosswalk, and at other non -intersection locations are creating a significant safety hazard. Dell has proposed constructing a pedestrian overpass at the mid -block location at their expense to reduce the safety concerns for their employees. They will also construct a fence to direct pedestrians to the pedestrian overpass. The overpass will be available to the general public, and the City will maintain the structure upon completion. Dell will reimburse the City for structural engineering review costs. Additionally, they will pay the City $3,000 per year increasing at 3% per year for maintenance and other expenses incurred by the City in maintaining the pedestrian bridge. In the agreement, Dell has agreed to pay certain amounts to the City for the City's agreement to maintain the project and to keep the project open to use by the public. Funding: Cost: Annual costs of $3,000 increasing at 3% per year Source of funds: Dell USA, L.P. Outside Resources: Dell USA, L.P. Bury & Partners, Inc. Impact/Benefit: A new pedestrian bridge crossing Greenlawn Boulevard owned by the city and funded by Dell Computers. To improve the safety of pedestrian crossing along Greenlawn Boulevard for Dell Computers. Public Comment: N/A Sponsor: N/A EXECUTED DOCUMENT FOLLOWS PEDESTRIAN BRIDGE AGREEMENT This Pedestrian Brie Agreement (this "Agreement"), having an effective date of DCC�mSE2 (the "Effective Date"), is executed by and between DELL COMPUTER HOLDINGS, L.P., a Texas limited partnership ("Dell"), and the City of Round Rock, a Texas home rule municipality (the "City"). RECITALS A. Dell is the owner of certain tracts of land abutting Greenlawn Boulevard right- of-way in Round Rock, Texas. B. The City owns the Greenlawn Boulevard right-of-way and a pedestrian crossing bridge located on and over the Greenlawn Boulevard right-of-way in the location depicted on Exhibit A attached hereto (such pedestrian crossing bridge and all appurtenances thereto, including, without limitation, the fence located in the center median of the Greenlawn Boulevard right-of-way, is referred to herein as the "Project"). C. Dell has agreed to pay certain amounts to the City for the City's agreement to maintain the Project and to keep the Project open to use by the public, as well as certain amounts to cover the actual costs associated with the City's ownership of such Project, subject to the terms set forth in this Agreement. NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants and benefits herein contained, and subject to all of the terms and conditions hereof, Dell and the City agree as follows: AGREEMENT 1. Operation and Maintenance Services Performed by City. During the term(s) of this Agreement, the City shall undertake, perform and provide, either through its own employees or contractors, the operation and inspection of, routine maintenance and repairs to, and insurance for the Project to keep such Project open for use by the public. 2. Term. This Agreement shall be effective for an initial term of thirty (30) years ("Initial Term"), unless sooner terminated according to other terms and conditions set forth herein. One hundred eighty (180) days prior to the expiration of the Initial Term ("Renewal Deadline"), Dell shall notify the City, in writing, that it desires to extend this Agreement an additional term of twenty (20) years ("Extension Term"). Such Extension Term shall be subject to the terms and conditions, including termination, set forth in this Agreement. 3. Payments by Dell. (a) During the first thirty (30) years following the Effective Date (such thirty (30) year period being referred to herein as the "Initial Term"), Dell shall pay annually to the City the amount of Three Thousand Dollars ($3,000.00) 12 -Q3 -I a -18-8E5 (`Base Amount") for each calendar year during which the City keeps the Project open for use by the public. Such Base Amount shall be increased by three percent (3%) annually. Each such annual payment shall be made in advance. The first such payment shall be made by Dell to the City within five (5) business days after the Effective Date and such first payment shall be pro rated, if applicable, according to the number of days left in the calendar year in which the Effective Date falls. Thereafter, each such payment by Dell shall be made on or before January 1 of the applicable calendar year. In the event Dell does not timely make any such payment, the City shall notify Dell of such failure and Dell shall have thirty (30) days following Dell's receipt of such notice to make such payment. In the event Dell does not make any such payment following the expiration of such 30 -day period, then this Agreement shall be deemed to have automatically terminated upon the expiration of such 30 day period and, except for Dell's obligation to remove the Project and restore the portion of the Greenlawn Boulevard right-of-way upon which the Project is located (the "Project Area") to a similar condition which existed prior to the construction of the Project, neither party shall have any right and/or obligation under this Agreement. The City may, within thirty (30) days following any automatic termination of this Agreement under this Paragraph 3(a), notify Dell in writing that the City requires Dell to remove the Project and restore the Project Area. Upon Dell's timely receipt of such written notice from the City, Dell shall promptly commence to cause such removal/restoration at Dell's sole cost. If the City fails to timely give such notice to Dell, Dell shall have no obligation to remove the Project and/or restore the Project Area as set forth in this Paragraph 3(a). (b) Sixty (60) days prior to the Renewal Deadline, the City shall prepare and deliver to Dell any modifications to the budget and annual payment that Dell shall be required to pay to the City during each calendar year for the Extension Term. Such budget shall be a commercially reasonable estimate of the City's cost in inspecting, maintaining and insuring the Project during each year of the Extension Term. On or before the Renewal Deadline, Dell shall notify the City if Dell desires to renew this Agreement for the Extension Term. If Dell notifies the City that Dell desires to renew this Agreement for the Extension Term, then this Agreement shall continue in full force and effect, except that the annual payment paid by Dell to the City as set forth in Paragraph 3(a) above shall be the amount set forth for the applicable year in the City's budget as delivered to Dell. In the event Dell does not timely notify the City that Dell desires to renew this Agreement for the Extension Term, then this Agreement shall be deemed to have automatically terminated upon the expiration of the Initial Term and, except for Dell's obligation to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project , neither party shall have any right and/or obligation under this Agreement. The City may, within thirty (30) days following any automatic termination of this Agreement under this Paragraph 3(b), notify Dell in writing that the City requires Dell to remove the Project and restore the Project Area. Upon Dell's timely receipt of such written notice from the City, Dell shall promptly commence to cause such removal/restoration at Dell's sole cost. If the City fails to timely give such notice to Dell, Dell shall have no obligation to remove the Project and/or restore the Project Area as set forth in this Paragraph 3(b). (c) This Agreement shall expire at the end of the Extension Term and, except for Dell's obligation to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project, neither party shall have any right and/or obligation under this Agreement. The City may, within thirty (30) days following the expiration of the Extension Term, notify Dell in writing that the City requires Dell to remove the Project and restore the Project Area. Upon Dell's timely receipt of such written notice from the City, Dell shall promptly commence to cause such removal/restoration at Dell's sole cost. If the City fails to timely give such notice to Dell, Dell shall have no obligation to remove the Project and/or restore the Project Area as set forth in this Paragraph 3(c). 4. Insurance/Property Coverage. The City shall at all times during the Initial Term and, if applicable, the Extension Term, maintain in full force and effect casualty insurance (or similar property coverage) in an amount equal to the full replacement value of the Project. 5. Destruction or Partial Destruction. (a) Should the Project be damaged or destroyed, the City shall promptly notify Dell of such damage or destruction. Following such damage or destruction, the City shall have the option, after consultation with Dell, to either (i) rebuild or repair the Project to its condition prior to such damage or destruction, (ii) terminate this Agreement and cause Dell to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project, or (iii) if the parties agree, transfer ownership of the Project to Dell. If the City notifies Dell that the City desires to terminate this Agreement, then Dell shall have the option to either (i) remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project, in which event this Agreement shall be deemed to have automatically terminated upon the date of such damage or destruction or (ii) with the concurrence of the City, rebuild or repair the Project to its condition prior to such damage or destruction. (b) In the event the City elects to rebuild or repair the Project to its condition prior to such damage or destruction, the City shall use commercially reasonable, diligent efforts to complete the repairs/restoration to the Project within a reasonable time following such damage or destruction. (c) In the event Dell elects to rebuild or repair the Project to its condition prior to such damage or destruction, then (i) the City and Dell shall promptly enter into a mutually agreeable temporary license agreement, the terms of which shall be substantially similar to the terms of the Temporary Construction License (the "License") dated December , 2003 between the City, as licensor, and Dell, as licensee, and (ii) the City shall promptly provide to Dell all proceeds received by the City under the City's casualty insurance (or similar property coverage) described in Paragraph 4 above. Dell shall use commercially reasonable, diligent efforts to complete all necessary repairs/restoration to the Project within a reasonable time following such election by Dell. (d) In the event Dell elects to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project, then the City shall promptly provide to Dell all proceeds received by the City, less any deductibles assessed to or paid by the City, under the City's casualty insurance (or similar property coverage) described in Paragraph 4 above. (e) Should the City Council determine, following any damage to the Project, that the Project is an immediate risk to the public health, safety or welfare of the citizens of the City, the City shall give Dell ten (10) days written notice of its intent to close public access to and use of the Project, and such closure may remain effective until the required repairs/restoration to the Project are completed. During any such closure or, if the performance of any repairs/restoration to the Project requires closure, the City shall provide an alternative route for the public to cross Greenlawn Boulevard during the period of such closure. 6. Termination for Cause. (a) Should the City determine that the Project is a risk to the public health, safety or welfare of the citizens of the City (for any reason not covered in Paragraph 5 above), the City shall provide thirty (30) days prior written notice to Dell as to when consideration of such risk will be placed upon the City Council Agenda. Should the City Council then concur with such determination that the Project is a risk to the public health, safety or welfare of the citizens of the City (for any reason not covered in Paragraph 5 above), the City shall have the option to either (i) modify or alter the Project as required to remove such risk, (ii) terminate this Agreement and cause Dell to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project, or (iii) if the parties agree, transfer ownership of the Project to Dell. If the City Council notifies Dell that the City desires to terminate this Agreement, then Dell shall have the option to either (i) remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project, in which event this Agreement shall be deemed to have automatically terminated upon the date of such damage or destruction or (ii) modify or alter the Project as required to remove such risk; provided, however, that if the City reasonably determines, based on the City's good faith review of the risk, that the Project cannot be modified or altered sufficiently to remove the risk to the public health, safety and welfare, the City shall notify Dell of such determination and Dell shall remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project. (b) In the event the City Council elects to modify or alter the Project as required to remove such risk, the City shall use commercially reasonable, diligent efforts to complete all necessary modifications/alterations to the Project within a reasonable time following such election by the City Council. (c) In the event Dell elects to modify or alter the Project as required to remove such risk, then the City and Dell shall promptly enter into a mutually agreeable temporary license agreement, the terms of which shall be substantially similar to the terms of the License. Dell shall use commercially reasonable, diligent efforts to complete all necessary modifications/alterations to the Project within a reasonable time following such election by Dell. (d) Should the City Council determine, pursuant to the terms of Subparagraph 6(a) above, that the Project is an immediate risk, the City shall give Dell ten (10) days written notice of its intent to close public access to and use of the Project, and such closure may remain effective until the required modifications/alterations to the Project to remove such risk are completed. During any such closure or, if the performance of any modification/alteration to the Project requires closure, the City shall provide an alternative route for the public to cross Greenlawn Boulevard during the period of such closure. (e) Should the City Council determine, pursuant to the terms of Subparagraph 6(a) above, that the Project is a risk and Dell elects not to modify or alter the Project as required to remove such risk [or pursuant to the terms of Subparagraph 6(a) above, should the City Council determine that the Project cannot be modified or altered sufficiently to remove such risk], the parties shall mutually determine a schedule and deadline by which the Project will be removed and the Project Area restored to a similar condition which existed prior to the construction of the Project. Should the City Council determine that the Project is a risk, but not an immediate risk, the City may, at its discretion, give Dell up to six (6) months to remove the Project and restore the Project Area to a similar condition which existed prior to the construction of the Project. 7. Miscellaneous. (a) No Partnership. Dell and the City agree and acknowledge that with respect to the Project or otherwise by virtue of this Agreement, they are not partners or joint venturers. This Agreement will not be construed in any form or manner to establish a partnership, joint venture or agency, express or implied, nor any employer- employee or borrowed servant relationship by and between the parties. (b) Notice. All notices, demands and requests which may be given or which are required to be given by either party to the other shall be in writing and shall be deemed effective when: (i) personally delivered to the intended recipient; (ii) two (2) days after being sent, by certified or registered mail, return receipt requested, addressed to the intended recipient at the address specified below; (iii) delivered in person to the address set forth below for the party to whom the notice was given; (iv) deposited into the custody of a recognized overnight delivery service such as Federal Express Corporation, Emery, or Lone Star Overnight, addressed to such party at the address specified below; or (v) sent by facsimile, telegram or telex, provided that receipt for such facsimile, telegram or telex is verified by the sender. For purposes of this Agreement, the addresses of the parties for all notices are as follows (unless changed by similar notice in writing given by the particular person whose address is to be changed): If to Dell: If to the Citv: City of Round Rock 221 East Main Street Round Rock, Texas 76574 Attn: Fax: Attn: City Manager Fax: With copy to: With copy to: Stephan L. Sheets Sheets & Crossfield 309 East Main Street Round Rock, Texas 78664 Fax: Fax: (512) 255-8986 (c) Legal Expenses. The party or parties not in default may employ attorneys to pursue its legal rights and, if the party or parties not in default prevails before any court or agency of competent jurisdiction, the defaulting party shall be obligated to pay all expenses incurred by the party or parties not in default, including reasonable attorney's fees. (d) Governing Law. This Agreement shall be governed by and be construed in accordance with the laws of the State of Texas. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law or public policy or otherwise unenforceable, the remaining provisions shall remain in full force and effect, and the parties shall negotiate, in good faith, a substitute, valid, and enforceable provision which most nearly reflects the parties' stated intention as set forth in such affected provision. Venue for actions arising in connection with this Agreement shall be in Williamson County, Texas. (e) Time. Time is of the essence with respect to all matters covered by this Agreement. (f) Binding Effect. This Agreement shall bind the parties to this Agreement, their affiliates, successors, and assigns. No other persons or entities may enforce this Agreement or claim any benefits under this Agreement. There are no oral agreements between the parties hereto with respect to the subject matter hereof. This Agreement shall be subject to change or modification only with the mutual written consent of both parties. (g) Force Majeure. If any party is rendered unable, wholly or in part, by force majeure, including acts of God, natural disasters, civil disturbances, actions of the federal government, or other causes not reasonably within the control of the party claiming such inability to carry out any of its obligations under this Agreement, other than an obligation to pay or provide money, then such obligations of that party, to the extent affected by such event of force majeure and to the extent that due diligence is being used to resume performance at the earliest practicable time, shall be suspended during the continuance of any inability so caused to the extent provided but for no longer period, provided that immediate notice is given to each of the affected parties. Such cause, as far as possible, shall be remedied with all reasonable diligence. (h) Counterparts. The parties agree that this Agreement may be executed in multiple counterparts which, taken together, shall form the contractual agreement of the parties. (i) Authority. The person signing this Agreement warrants that he is authorized to sign this Agreement on behalf of the respective signatory. 0) Assignment. This Agreement, including the rights to service capacity and the obligations to pay certain costs, is assignable, in whole or in part, by either party hereto. [SIGNATURE PAGE(S) FOLLOW] [Signature Page for that Pedestrian Bridge Agreement] Executed to be effective/nl�ti )& , DELL COMPUTER HOLDINGS, L.P. By: Dell Gen. P. Corp. its general partner By: Name: Title: �', rc�iw5 , 2tda Ft� 5 The C By: Name Title: ATTEST: By: Christine R. Martinez, City Secretary APPROVED AS TO FORM: -A 4.Ic'--i — City Attorney Exhibit "A" Depiction of Location of the Project Exhibit "A" Depiction of Location of the Project 'DEC -18-2003 THU 10;48 AM DSWMvK LLP FAX N0. 5124042235 P, 03/12 E� A c� t�I m z O 1 � i f� I -F••�mi".1.�� 1 1 1 r t O 1 1 1 1 1 I f l l L) -w F•i-rel-r1-`r �� _ E u _ l 1 1 I t l l 1' � •. � 1q, - r I r c� t�I m z O I'1 I Iml 7^� 1 1 Iwl i ` 1 ,l II�iWy sat x hvl Plf y� eb WM iv 1 I I � ` 1166 i t i I I &4-11 - 11 -I Qr 1 1 1 1 1 1• I L,I 1 a w ti A 1 1 r t O I'1 I Iml 7^� 1 1 Iwl i ` 1 ,l II�iWy sat x hvl Plf y� eb WM iv 1 I I � ` 1166 i t i I I &4-11 - 11 -I 1 1 1 1 1 1• I L,I 1 w ti A 1 1 r 1 i i 1 I 1 1 1 1 1 1• I L,I 1 t tl U 1 i 1 1 1 1 1 I f l l L) -w r II--• 1 l I Vaal' - q--- �� r l•r��,' I t l l l l l l l l l l l I l l l � ; I I :.40 i.A \AlE HIGHWAY 451- 4 +.� TDEC-18-2003 THU 10:48 AM DSWMUK LLP 1 m Z a FAX N0. 5124042235 E�ITA P. 04/12 j4�`d �-,rT r i Fa -a MI I-a-a-a.N•t I t � 1 1 i 1 �1e^ •' ��aa r � ' _� 1 1\ it �i-i"i' i i a -i -i•» -i i -i i i• i l, , t " ! 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