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R-05-10-13-10D1 - 10/13/2005RESOLUTION NO. R -05-10-13-10D 1 WHEREAS, Chapter 791 of the Texas Government Code, V. T.C.A., authorizes local governments and agencies of the state to enter into agreements with one another to perform governmental functions and services, and WHEREAS, the City of Round Rock wishes to enter into an Interlocal Agreement with the Travis County Emergency Service District #2 for radio devices to be attached to city -owned elevated storage tanks, 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 said Interlocal Agreement, 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. RESOLVED this 13th day of October, 2005 2 N NY , Mayor City of Round Rock, Texas CHRISTINE R. MARTINEZ, City Sec g-tary @PFDesktop\::ODMA/WORLDOX/O:/WDOX/RFSOLUTI/R51013D1.WPD/sc INTERLOCAL AGREEMENT That this Interlocal Agreement (referred to herein as the "Agreement") for the placement of relay antennas as part of the radio dispatch system is made and entered into on this the day of the month of September, 2005 (the "Effective Date"), by and between the CITY OF ROUND ROCK, TEXAS, a home -rule municipal corporation of the State of Texas (referred to herein as the "City"), and TRAVIS COUNTY EMERGENCY SERVICES DISTRICT NO. 2, (referred to herein as the "ESD") a special purpose district of the State of Texas. RECITALS: WHEREAS, the Texas Government Code Annotated, Chapter 791, the Texas Interlocal Cooperation Act provides that any one or more public agencies may contract with each other for the performance of governmental functions andfor the joint use of facilities or services for the promotion and protection of the health and welfare of the inhabitants of this State and the mutual benefit of the parties; and WHEREAS, the City and the ESD mutually desire to be subject to the provisions of the Texas Interlocal Cooperation Act to enable the facilitation of governmental functions and services; and WHEREAS, the ESD requires additional relay points (referred to herein as "Attachments") to improve their emergency network and radio dispatch communications system to assist with their emergency notification systems within both the territory of Travis County, Texas and the corporate limits of the City of Round Rock, Texas; and WHEREAS, the City allows, pursuant to the terms of Section 10.1000 of the City's Code of Ordinances, for third -parties to place Attachments on certain City -owned structures as are more fully defined in Section 10.1001(13) (referred to herein as "Utility Infrastructure"); and WHEREAS, the City has two Utility Infrastructures that are capable of handling the installation of the Attachments and the City is willing to provide Attachment Rights to the ESD for such installation and operation of the Attachments; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1 EXHIBIT AGREEMENT: 1.01 SCOPE OF SERVICES; USE OF FACILITIES OR EQUIPMENT A. The ESD shall provide the Attachments and all necessary Cables, as is defined in Section 10.1001(4), City's Code of Ordinances and all such Attachments, Cables and/or Radio Equipment shall meet all applicable federal, state or local codes, statutes, ordinances, rules and/or regulations. B. The City shall provide a portion of that certain space on two of the City's Utility Infrastructures, as shown on the Exhibit "A" attached hereto and made a part hereof sufficient for the installation of the ESD radio equipment (referred to herein as "Radio Equipment") as shown on the Exhibit "B" attached hereto and made a part hereof with sufficient space for the installation and maintenance of the Cables running from the Attachment to the Radio Equipment and for attaching electric utility control unit and wires to an existing 110 volt power source. The ESD may not change the number, kind or location of Attachments, Cables and/or Radio Equipment, the method of construction or installation or the use of the Attachments, Cables and/or Radio Equipment without the prior written consent of the City. C. Construction drawings for installation of the Attachments, Cables and Radio Equipment shall comply with all City standards and ordinances and shall be approved by the City prior to the installation of such Attachments, Cables and Radio Equipment on the City's Utility Infrastructures. No materials may be used in the installation of the Attachments, Cables and/or Radio Equipment that will cause corrosion, rust or deterioration of the Utility Infrastructure or its appurtenances. All Attachments, Cables and/or Radio Equipment must be identified by a marking fastened securely to the Attachments, Cables and/or Radio Equipment. If the City determines that the Attachments, Cables and/or Radio Equipment impair the safety or structural integrity of the Utility Infrastructure, or affect the rights, privileges or duties previously conferred or imposed by the City upon another User of the City's Utility Infrastructure, the City may require the ESD, at the ESD's sole expense and risk, to change, alter, improve, move, remove or rearrange any of its Attachments, Cables and/or Radio Equipment. If the ESD fails or refuses to comply with the directions of the City to change, alter, improve, move or remove or rearrange any of its Attachments, Cables and/or Radio Equipment, such Attachments, Cables and/or Radio Equipment shall be deemed to be unauthorized. Co -lashing or co -location of Attachments is prohibited without the prior written consent of the City. It is understood and agreed that the ESD's ability to use the Utility Infrastructure is contingent upon its obtaining all of the certificates, permits and other approvals that may be required by any governmental entity. 2 D. Installation, operation and maintenance of the Attachments, Cables and/or Radio Equipment shall be at the sole risk and expense of the ESD. The City does not warrant or represent that the Utility Infrastructures are suitable for placement of the Attachments, Cables and/or Radio Equipment. The ESD is expected to inspect or have inspected the Utility Infrastructures on which the Attachments, Cables and Radio Equipment will be placed and shall rely solely on such inspection to determine the suitability of the Utility Infrastructures for the ESD's purposes. The ESD accepts the City's Utility Infrastructures AS IS and WHERE IS and assumes all risks attendant to its usage. E. The ESD shall be required to secure the City's approval for access to the Utility Infrastructure for purposes of installation and maintenance, which shall not be unreasonably withheld. Except in the case of emergencies, the ESD shall be required to notify the City in writing at least seventy-two (72) hours in advance of any required access to the Utility Infrastructure and only authorized engineers, employees or properly authorized contractors of the ESD will be permitted to enter said premises. F. The City has the right to inspect, at any time, during the construction and installation of the Attachments, Cables and/or Radio Equipment on the Utility Infrastructures. If, in the course of any such inspection, the City finds that the ESD's installation violates any ordinance, code, statute, permit, or this Agreement, the City may immediately suspend the ESD's installation activities. The City shall send a written notice to the ESD within three (3) business days after such suspension identifying the alleged violation. Such suspension shall be in effect until such time as the ESD cures, at the ESD's sole expense, the alleged violation. The ESD may appeal a suspension to the Director of Utilities. G. The ESD acknowledges that the City's use of the Utility Infrastructures are first and foremost as part of the municipal water system, including storage and distribution of portable drinking water and that notwithstanding any other provision in this Agreement, the ESD's use of the Utility Infrastructures shall not interfere therewith. H. The ESD will maintain the Attachments, Cables and/or Radio Equipment on the Utility Infrastructures in good condition. The ESD shall not transfer, assign, convey, or sublet any Attachment rights without the City's prior written consent. Any purported transfer, assignment or subletting of any right granted hereunder with obtaining the City's prior written consent shall not be binding upon the City, but shall be a material default of this Agreement. 3 3.01 COMPENSATION A. The filing fee for the review and processing of an application to use the Utility Infrastructures is Five Hundred Dollars ($500.00) per site, for a total of One Thousand Dollars ($1,000.00). B. Usage charges for the ESD during the term of this Agreement are as follows: a. Initial twelve (12) month term: $250.00 b. Additional twelve (12) month terms: $500.00 4.01 TERM AND TERMINATION A. The initial term of this Agreement is twelve (12) months from the effective date hereof. After that initial term and subject to the continued appropriations for such Agreement, this Agreement may be renewed for successive one-year terms for a period not to exceed five (5) years after the initial expiration of term, upon the express written agreement of all. B. City and ESD reserve the right to review the relationship at any time, and may elect to terminate this Agreement with or without cause or may elect to continue. C. The parties have the right to terminate this Agreement, in whole or in part, for convenience and without cause, at any time upon thirty (30) days' written notice to the other party. D. In the event there is a default by ESD with respect to any of the provisions of this Agreement, including payment of compensation, City shall give ESD written notice of default. After receipt of such written notice, ESD shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to cure any non -monetary default, provided ESD shall have such extended period as may be required if the nature of the cure is such that it reasonably requires more than the time period stated and ESD commences the cure within the time period stated. Should ESD fail to cure any monetary default within the time period given, including any approved extensions, City may, at its option, terminate this Agreement and require ESD to remove its Attachments, Cables and Radio Equipment within the time period set forth in subparagraph E, below. Should ESD fail to cure any non -monetary default within the time period given, including any approved extensions, City may, at its option, terminate this Agreement or cure such default and bill such costs of cure to ESD. E. ESD, upon termination of this Agreement, shall, within ninety (90) days, remove the Attachments, Cables and/or Radio Equipment and all other personal property and otherwise restore the Utility Infrastructure to its original condition, reasonable wear and tear excepted. City agrees and acknowledges that all of the 4 Attachments, Cables and/or Radio Equipment and other personal property are and shall remain the personal property of the ESD. F. In the event the Utility Infrastructure is damaged such that it cannot reasonably be expected to be repaired within forty-five (45) days following same, or if the Utility Infrastructure is damaged so that such damage may reasonably be expected to disrupt ESD's operations and use for more than forty-five (45) days, then ESD may, at any time following such casualty and provided City has not completed the restoration required to permit ESD to resume its operation and use of the Utility Infrastructure, terminate this Agreement upon fifteen (15) days written notice to City. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement. Should ESD elect not to terminate this Agreement, this Agreement shall be in forbearance during the period of repair following such casualty and all terms and conditions shall reinstate upon completion of the repairs. 5.01 REPRESENTATIVES; NOTICE The ESD and the City hereby designate the following representatives authorized to act in their respective behalf with regard to this Agreement:: ESD: Terry Struble, President Travis County ESD No. 2 Pflugerville Fire Department 203 E. Pecan Street Pflugerville, Texas 78660 512- 251-2801 City: Tom Clark, Director Utilities Department City of Round Rock 212 Commerce Cove Round Rock, Texas 78664 512-671-2755 All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: A. When delivered personally to the recipient's address as stated in this Agreement; or B. Three (3) days after being deposited in the .United States mail, with postage prepaid to the recipient's address as stated in this Agreement. 5 Notice to the ESD: Travis County ESD #2 Attn:Terry Struble, President Pflugerville Fire Department 203 E. Pecan Street AND TO: Pflugerville, Texas 78660 Notice to City: Tom Clark, Director Utilities Department 212 Commerce Cove Round Rock, TX 78664 AND TO: John J. Carlton Armbrust & Brown, L.L.P. 100 Congress Ave, Suite 1300 Austin, Texas 78701 Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of the ESD or City. 6.01 CONFIDENTIALITY City agrees to protect and maintain the confidentiality of the Data provided pursuant to this request and will ensure that such Data shall be used exclusively for those purposes permitted by applicable law or regulation. Notwithstanding the foregoing, the parties recognize, acknowledge and accept that City and ESD are political subdivisions subject to statutory obligations under the Texas Public Information Act and that their duties as to confidentiality run in strict accordance therewith. 7.01 INDEMNIFICATION To the extent allowed by law, ESD agrees to defend, indemnify and hold harmless City, its officers, agents and employees, against any and all claims, lawsuits, judgments, causes of action, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by ESD's breach of any of the terms or provisions of this Agreement or by the negligent act or omission of ESD, its officers, agents, servants, employees, contractors or subcontractors during the scope of services or use of the City's Utility Infrastructure; except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence of City, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both ESD and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available under Texas law to the City or ESD and without waiving any defenses of the parties under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. 6 8.01 MISCELLANEOUS PROVISIONS Exclusive Agreement. This document constitutes the entire Agreement between ESD and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing. Assignment and Delegation. The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. No party shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. Approval. This Agreement has been duly and properly approved by each party's governing body and constitutes a binding obligation on each party. Non -Waiver. A party's failure or delay to exercise a right or remedy does not constitute a waiver of the right or remedy. An exercise of a right or remedy under this Agreement does not preclude the exercise of another right or remedy. Rights and remedies under this Agreement are cumulative and are not exclusive of other rights or remedies provided by law. Governmental Immunity. Nothing in this Agreement shall be deemed to waive, modify or amend any legal defense available at law or in equity to either of the Parties nor to create any legal rights or claim on behalf of any third party. Neither City nor ESD waives, modifies, or alters to any extent whatsoever the availability of the privilege, right, defense or remedy of governmental or sovereign immunity under the laws of the State of Texas and of the United States. Attorneys' Fees. In any lawsuit concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees from the nonprevailing party, plus all out of pocket expenses such as deposition costs, telephone calls, travel expenses, expert witness fees, court costs, and other reasonable expenses. Severability. If any provision hereof is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be fully severable here to from and this Agreement shall be constructed and enforced, as if such invalid, illegal or unenforceable provision never comprised a part hereof; and the remaining provisions shall continue in full force and effect. Venue. This Agreement shall be constructed in accordance with the laws of the State of Texas and venue for all purposes hereunder shall be in Williamson County, Texas. Certificate of Insurance. ESD is a self-insured entity and agrees to provide a certificate of insurance or letter of self-insurance on its letterhead indicting its self-insured status before this Agreement becomes effective. Furthermore, ESD shall provide a copy of the certificate of insurance of any contractor who performs the construction and/or installation of the Attachments, Cables and/or Radio Equipment on City's Utility Infrastructure. 7 Paragraph Headings. The various paragraph headings are inserted for convenience of reference only, and shall not affect the meaning or interpretation of this Agreement or any section thereof. Multiple Counterparts. This Agreement may be executed in multiple counterparts, any one of which shall be considered an original of this document; and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated. TRAVIS COUNTY EMERGENCY ATTEST: SERVICES DISTRICT NO. 2 Terry ru. e, PrAsident Title: Se.-V-tI y Date : igned: Date Signed: C{ _ O ' 6 CITY OF ROUND ROCK, TEXAS ATTEST: By: Nyle Maxwell, Mayor Christine R. Martinez, City Secretary Date Signed: Date Signed: 8 DATE: October 7, 2005 SUBJECT: City Council Meeting - October 13, 2005 ITEM: 10.D.1. Consider a resolution authorizing the Mayor to execute an Interlocal Agreement with Travis County Emergency Services District No. 2 for radio devices to be attached to city -owned elevated storage tanks. Department: Water and Wastewater Utilities Staff Person: Tom Clark, Director of Utilities Justification: Travis County ESD No. 2 has requested to have a radio device attached to each of two city -owned elevated storage tanks. This is allowed under city ordinance Section 10.1000. Funding: Cost: N/A Source of funds: N/A Outside Resources: N/A Background Information: Travis Co. Emergency Services District No. 2 made a request to place radio antennae on both the High Country Elevated Water Storage Tank and the Chisholm Valley Elevated Water Storage. Utilities staff in conjunction with legal developed an Inter Local Agreement acceptable to both parties. The agreement allows Travis County Emergency Services District No. 2 to place antennae on each of the two tanks, and compensates $1,000 to the City to cover the costs associated with placing the attachments on the tanks. Public Comment: N/A INTERLOCAL AGREEMENT That this Interlocal Agreement (referred to herein as the "Agreement") for the placement of relay antennas as part of the rrdio dispatch system is made and entered into on this the %3 day of the month of 41Wer, 2005 (the "Effective Date"), by and between the CITY OF ROUND ROCK, TEXAS, a home -rule municipal corporation of the State of Texas (referred to herein as the "City"), and TRAVIS COUNTY EMERGENCY SERVICES DISTRICT NO. 2, (referred to herein as the "ESD") a special purpose district of the State of Texas. RECITALS: WHEREAS, the Texas Government Code Annotated, Chapter 791, the Texas Interlocal Cooperation Act provides that any one or more public agencies may contract with each other for the performance of governmental functions and for the joint use of facilities or services for the promotion and protection of the health and welfare of the inhabitants of this State and the mutual benefit of the parties; and WHEREAS, the City and the ESD mutually desire to be subject to the provisions of the Texas Interlocal Cooperation Act to enable the facilitation of governmental functions and services; and WHEREAS, the ESD requires additional relay points (referred to herein as "Attachments") to improve their emergency network and radio dispatch communications system to assist with their emergency notification systems within both the territory of Travis County, Texas and the corporate limits of the City of Round Rock, Texas; and WHEREAS, the City allows, pursuant to the terIns of Section 10.1000 of the City's Code of Ordinances, for third -parties to place Attachments on certain City -owned structures as are more fully defined in Section 10.1001(13) (referred to herein as "Utility Infrastructure"); and WHEREAS, the City has two Utility Infrastructures that are capable of handling the installation of the Attachments and the City is willing to provide Attachment Rights to the ESD for such installation and operation of the Attachments; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: R-05-9O-I3-iODI 1 AGREEMENT: 1.01 SCOPE OF SERVICES; USE OF FACILITIES OR EQUIPMENT A. The ESD shall provide the Attachments and all necessary Cables, as is defined in Section 10.1001(4), City's Code of Ordinances and all such Attachments, Cables and/or Radio Equipment shall meet all applicable federal, state or local codes, statutes, ordinances, rules and/or regulations. B. The City shall provide a portion of that certain space on two of the City's Utility Infrastructures, as shown on the Exhibit "A" attached hereto and made a part hereof sufficient for the installation of the ESD radio equipment (referred to herein as "Radio Equipment") as shown on the Exhibit "B" attached hereto and made a part hereof with sufficient space for the installation and maintenance of the Cables running from the Attachment to the Radio Equipment and for attaching electric utility control unit and wires to an existing 110 volt power source. The ESD may not change the number, kind or location of Attachments, Cables and/or Radio Equipment, the method of construction or installation or the use of the Attachments, Cables and/or Radio Equipment without the prior written consent of the City. C. Construction drawings for installation of the Attachments, Cables and Radio Equipment shall comply with all City standards and ordinances and shall be approved by the City prior to the installation of such Attachments, Cables and Radio Equipment on the City's Utility Infrastructures. No materials may be used in the installation of the Attachments, Cables and/or Radio Equipment that will cause corrosion, rust or deterioration of the Utility Infrastructure or its appurtenances. All Attachments, Cables and/or Radio Equipment must be identified by a marking fastened securely to the Attachments, Cables and/or Radio Equipment. If the City determines that the Attachments, Cables and/or Radio Equipment impair the safety or structural integrity of the Utility Infrastructure, or affect the rights, privileges or duties previously conferred or imposed by the City upon another User of the City's Utility Infrastructure, the City may require the ESD, at the ESD's sole expense and risk, to change, alter, improve, move, remove or rearrange any of its Attachments, Cables and/or Radio Equipment. If the ESD fails or refuses to comply with the directions of the City to change, alter, improve, move or remove or rearrange any of its Attachments, Cables and/or Radio Equipment, such Attachments, Cables and/or Radio Equipment shall be deemed to be unauthorized. Co -lashing or co -location of Attachments is prohibited without the prior written consent of the City. It is understood and agreed that the ESD's ability to use the Utility Infrastructure is contingent upon its obtaining all of the certificates, peirnits and other approvals that may be required by any governmental entity. 2 D. Installation, operation and maintenance of the Attachments, Cables and/or Radio Equipment shall be at the sole risk and expense of the ESD. The City does not warrant or represent that the Utility Infrastructures are suitable for placement of the Attachments, Cables and/or Radio Equipment. The ESD is expected to inspect or have inspected the Utility Infrastructures on which the Attachments, Cables and Radio Equipment will be placed and shall rely solely on such inspection to deteiniine the suitability of the Utility Infrastructures for the ESD's purposes. The ESD accepts the City's Utility Infrastructures AS IS and WHERE IS and assumes all risks attendant to its usage. E. The ESD shall be required to secure the City's approval for access to the Utility Infrastructure for purposes of installation and maintenance, which shall not be unreasonably withheld. Except in the case of emergencies, the ESD shall be required to notify the City in writing at least seventy-two (72) hours in advance of any required access to the Utility Infrastructure and only authorized engineers, employees or properly authorized contractors of the ESD will be permitted to enter said premises. F. The City has the right to inspect, at any time, during the construction and installation of the Attachments, Cables and/or Radio Equipment on the Utility Infrastructures. If, in the course of any such inspection, the City finds that the ESD's installation violates any ordinance, code, statute, permit, or this Agreement, the City may immediately suspend the ESD's installation activities. The City shall send a written notice to the ESD within three (3) business days after such suspension identifying the alleged violation. Such suspension shall be in effect until such time as the ESD cures, at the ESD's sole expense, the alleged violation. The ESD may appeal a suspension to the Director of Utilities. G. The ESD acknowledges that the City's use of the Utility Infrastructures are first and foremost as part of the municipal water system, including storage and distribution of portable drinking water and that notwithstanding any other provision in this Agreement, the ESD's use of the Utility Infrastructures shall not interfere therewith. H. The ESD will maintain the Attachments, Cables and/or Radio Equipment on the Utility Infrastructures in good condition. The ESD shall not transfer, assign, convey, or sublet any Attachment rights without the City's prior written consent. Any purported transfer, assignment or subletting of any right granted hereunder with obtaining the City's prior written consent shall not be binding upon the City, but shall be a material default of this Agreement. 3 3.01 COMPENSATION A. The filing fee for the review and processing of an application to use the Utility Infrastructures is Five Hundred Dollars ($500.00) per site, for a total of One Thousand Dollars ($1,000.00). B. Usage charges for the ESD during the term of this Agreement are as follows: a. Initial twelve (12) month term: $250.00 b. Additional twelve (12) month terms: $500.00 4.01 TERM AND TERMINATION A. The initial term of this Agreement is twelve (12) months from the effective date hereof After that initial term and subject to the continued appropriations for such Agreement, this Agreement may be renewed for successive one-year terms for a period not to exceed five (5) years after the initial expiration of term, upon the express written agreement of all. B. City and ESD reserve the right to review the relationship at any time, and may elect to terminate this Agreement with or without cause or may elect to continue. C. The parties have the right to terminate this Agreement, in whole or in part, for convenience and without cause, at any time upon thirty (30) days' written notice to the other party. D. In the event there is a default by ESD with respect to any of the provisions of this Agreement, including payment of compensation, City shall give ESD written notice of default. After receipt of such written notice, ESD shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to cure any non -monetary default, provided ESD shall have such extended period as may be required if the nature of the cure is such that it reasonably requires more than the time period stated and ESD commences the cure within the time period stated. Should ESD fail to cure any monetary default within the time period given, including any approved extensions, City may, at its option, terminate this Agreement and require ESD to remove its Attachments, Cables and Radio Equipment within the time period set forth in subparagraph E, below. Should ESD fail to cure any non -monetary default within the time period given, including any approved extensions, City may, at its option, terminate this Agreement or cure such default and bill such costs of cure to ESD. E. ESD, upon termination of this Agreement, shall, within ninety (90) days, remove the Attachments, Cables and/or Radio Equipment and all other personal property and otherwise restore the Utility Infrastructure to its original condition, reasonable wear and tear excepted. City agrees and acknowledges that all of the 4 Attachments, Cables and/or Radio Equipment and other personal property are and shall remain the personal property of the ESD. F. In the event the Utility Infrastructure is damaged such that it cannot reasonably be expected to be repaired within forty-five (45) days following same, or if the Utility Infrastructure is damaged so that such damage may reasonably be expected to disrupt ESD's operations and use for more than forty-five (45) days, then ESD may, at any time following such casualty and provided City has not completed the restoration required to permit ESD to resume its operation and use of the Utility Infrastructure, terminate this Agreement upon fifteen (15) days written notice to City. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement. Should ESD elect not to terminate this Agreement, this Agreement shall be in forbearance during the period of repair following such casualty and all terms and conditions shall reinstate upon completion of the repairs. 5.01 REPRESENTATIVES; NOTICE The ESD and the City hereby designate the following representatives authorized to act in their respective behalf with regard to this Agreement: ESD: Terry Struble, President Travis County ESD No. 2 Pflugerville Fire Department 203 E. Pecan Street Pflugerville, Texas 78660 512- 251-2801 City: Tom Clark, Director Utilities Department City of Round Rock 212 Commerce Cove Round Rock, Texas 78664 512-671-2755 All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: A. When delivered personally to the recipient's address as stated in this Agreement; or B. Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. 5 Notice to the ESD: Travis County ESD #2 Attn:Terry Struble, President Pflugerville Fire Department 203 E. Pecan Street Pflugerville, Texas 78660 Notice to City: Tom Clark, Director Utilities Department 212 Commerce Cove Round Rock, TX 78664 AND TO: AND TO: John J. Carlton Armbrust & Brown, L.L.P. 100 Congress Ave, Suite 1300 Austin, Texas 78701 Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of the ESD or City. 6.01 CONFIDENTIALITY City agrees to protect and maintain the confidentiality of the Data provided pursuant to this request and will ensure that such Data shall be used exclusively for those purposes permitted by applicable law or regulation. Notwithstanding the foregoing, the parties recognize, acknowledge and accept that City and ESD are political subdivisions subject to statutory obligations under the Texas Public Information Act and that their duties as to confidentiality run in strict accordance therewith. 7.01 INDEMNIFICATION To the extent allowed by law, ESD agrees to defend, indemnify and hold harmless City, its officers, agents and employees, against any and all claims, lawsuits, judgments, causes of action, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by ESD's breach of any of the terms or provisions of this Agreement or by the negligent act or omission of ESD, its officers, agents, servants, employees, contractors or subcontractors during the scope of services or use of the City's Utility Infrastructure; except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence of City, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both ESD and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available under Texas law to the City or ESD and without waiving any defenses of the parties under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. 6 8.01 MISCELLANEOUS PROVISIONS Exclusive Agreement. This document constitutes the entire Agreement between ESD and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing. Assignment and Delegation. The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. No party shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. Approval. This Agreement has been duly and properly approved by each party's governing body and constitutes a binding obligation on each party. Non -Waiver. A party's failure or delay to exercise a right or remedy does not constitute a waiver of the right or remedy. An exercise of a right or remedy under this Agreement does not preclude the exercise of another right or remedy. Rights and remedies under this Agreement are cumulative and are not exclusive of other rights or remedies provided by law. Governmental Immunity. Nothing in this Agreement shall be deemed to waive, modify or amend any legal defense available at law or in equity to either of the Parties nor to create any legal rights or claim on behalf of any third party. Neither City nor ESD waives, modifies, or alters to any extent whatsoever the availability of the privilege, right, defense or remedy of governmental or sovereign immunity under the laws of the State of Texas and of the United States. Attorneys' Fees. In any lawsuit concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees from the nonprevailing party, plus all out of pocket expenses such as deposition costs, telephone calls, travel expenses, expert witness fees, court costs, and other reasonable expenses. Severability. If any provision hereof is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be fully severable here to from and this Agreement shall be constructed and enforced, as if such invalid, illegal or unenforceable provision never comprised a part hereof; and the remaining provisions shall continue in full force and effect. Venue. This Agreement shall be constructed in accordance with the laws of the State of Texas and venue for all purposes hereunder shall be in Williamson County, Texas. Certificate of Insurance. ESD is a self-insured entity and agrees to provide a certificate of insurance or letter of self-insurance on its letterhead indicting its self-insured status before this Agreement becomes effective. Furthermore, ESD shall provide a copy of the certificate of insurance of any contractor who performs the construction and/or installation of the Attachments, Cables and/or Radio Equipment on City's Utility Infrastructure. 7 Paragraph Headings. The various paragraph headings are inserted for convenience of reference only, and shall not affect the meaning or interpretation of this Agreement or any section thereof. Multiple Counterparts. This Agreement may be executed in multiple counterparts, any one of which shall be considered an original of this document; and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated. TRAVIS COUNTY EMERGENCY ATTEST: SERVICES DISTRICT NO. 2 B< inlir Terry . e, Pr sident Date : igned: 4 --e.)-0 -O S. CITY OF ROUND ROCK, TE Bv: , Mayor Date Signed: J 0- ) 3 -Q5 8 A ---- 7'2 3 - Title: S e Creficcr y Date Signed: q -co - Christine R. Martinez, City Secretary Date Signed: J ©-9I 3-0 5