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R-07-07-12-11A1 - 7/12/2007 RESOLUTION NO. R-07-07-12-11A1 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 Round Rock Independent School District for fiber optic cable and related services, 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 an Interlocal Agreement with Round Rock Independent School District, 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 12th day of July, 2007 Z-21 NY E , Mayor City of Round Rock, Texas NIT ST: CHRISTINE R. MARTINEZ, City Secr tary 0:\wdox\RESOLUTI\.R7Ci112A1.WFD/rmc INTERLOCAL AGREEMENT BETWEEN THE ROUND ROCK INDEPENDENT SCHOOL DISTRICT AND THE CITY OF ROUND ROCK REGARDING FIBER OPTIC CABLE AND RELATED SERVICES This Interlocal Agreement regarding fiber optic cable ("Agreement") by and between the Round Independent School District (hereinafter "District") and the City of Round Rock, Texas (hereinafter "City") is entered into for the purposes of the District providing certain governmental services for the benefit of City. RECITATIONS WHEREAS, District has in place a fiber optic communications network to serve the District's governmental functions; WHEREAS, at the time of construction of the District's fiber optic network, certain additional capacity in the network was constructed; WHEREAS, due to the continuation in the technical improvement of the capacity of the District's fiber optic network, certain fiber optic network facilities could be provided to the City without diminishing the capability of the District to meet its future needs; WHEREAS, City and District have substantial areas of overlapping jurisdiction; WHEREAS, portions of the District's fiber optic network is located in areas that are near City facilities; WHEREAS, it would be beneficial to the City and the District to provide some of the excess fiber optic facilities to the City in order to meet the City's needs for communication among its various facilities; NOW, THEREFORE, the City and District have agreed to convey certain fiber optic facilities and enter into joint services to provide a fiber optic network for the City. The parties hereto agree as follows: 1. AUTHORITY. This Agreement is entered into between City and District pursuant to the authority contained in the Interlocal Cooperation Act, Government Code Section 791 et seq. The provisions of Section 791 et seq. of the Government Code are incorporated into this Agreement and this Agreement shall be interpreted in accordance with these sections of the Government Code. 2. CONVEYANCE OF FIBER OPTIC CABLES. A. Pursuant to the terms of this Agreement and upon fulfillment of various conditions herein, District shall convey to City one pair of fiber optic cables described on Exhibit A ("Fiber"). Included within the definition of Fiber and as further set out on Exhibit A, in EXHIBIT a 3 "An addition to the pair of fiber optic cables, District shall also convey to City an undivided one- twelfth (1/12) interest in all poles, messenger wires, sheaths, pole attachments, ducts and similar equipment to be used to protect, hang and hold in place the fiber optic cables (the "Accessories") conveyed to City and to the extent such Accessories are owned by District. District shall retain ownership of other pairs of fiber optic cables, generally consisting of eleven (11) other pairs, included within the fiber optic system. B. The Fiber to be conveyed to City is dark fiber defined as fiber optic cable in useable condition but without the necessary electronics to allow City to use the fiber optic cable. It is City's responsibility to supply the necessary electronics to make the Fiber useable. 3. CONDITIONS RELATED TO CONVEYANCE. The following conditions and actions shall occur on or prior to the conveyance of the Fiber: A. Prior to conveyance, District will provide City electronic test results suitable to City to show the continuity of the Fiber and otherwise establish that the Fiber is dark fiber in a useable condition. B. District will obtain, for the benefit of City a consent in form and content acceptable to the City from Grande Communications Networks, Inc. ("Grande") to the conveyance of the Fiber to the City and the continued use of the Fiber by City pursuant to the agreement between District and Grande effective January 28, 2002 ("Grande Agreement"). C. District will assign to City an interest in the maintenance agreement for Fiber with Grande that obligates Grande to maintain the Fiber during the period of the maintenance agreement that terminates in 2012. District will obtain the consent of Grande in form and content acceptable to the City to the assignment of the interest in the maintenance agreement. D. At such time as the Grande Agreement terminates, City and District agree that they will enter into a joint maintenance agreement with Grande or another party in terms and content that is mutually acceptable to City and District. E. City will install, test and make ready for service a pair of fiber optic cables from the Fiber located on a ring location to City facilities designated on Exhibit B. The Fiber will be terminated in a communications area within the City facilities designated by City. City will provide appropriate tests to show that the Fiber is properly installed and useable in the City facilities. The installation of the Fiber connections will be installed on the schedule set out on Exhibit B. City shall contract with Grande to install and test these fiber optic connections. F. District will provide an agreement with the City of Austin whereby the City of Austin consents to the use of its poles and pole attachments for the Fiber. District will also provide an agreement with the City of Austin to enter into a direct contract between the City of Austin and City in the event City of Austin defaults on the City of Austin fiber optic agreement obligations or the City of Austin fiber optic agreement otherwise terminates. G. District will provide an agreement with Texas Utilities whereby Texas Utilities consents to the use of its poles and pole attachments for the Fiber. District will also -2- provide an agreement with Texas Utilities to enter into a direct contract between Texas Utilities and City in the event Texas Utilities defaults on the Grande fiber optic agreement obligations or the Texas Utilities fiber optic agreement otherwise terminates. H. District will provide access to City to space in the District's Pan-ner Lane communications room at the District Athletic Complex located at 10211 West Parmer Lane. The District will designate space within the communications room for one standard computer rack enclosure, network connections and suitable electric power. The City will supply any required electronics and other equipment located within the communications room for the City's benefit. Access to the communications room will be under the supervision of District. I. District will provide fiber optic and communication technical assistance to City using District personnel. The terms of such assistance and the cost are set out hereinafter. 4. EXPANSION. A. If the City requests an expansion of any of the rings described on Exhibit A in which the Fiber is located, or any other ring in the District fiber optic system, City shall give notice to District, and City shall pay the cost of such expansion unless District agrees within thirty (30) days after notice that it will use the expanded ring to serve District facilities. If District agrees that it will use the expanded ring, the cost of such expansion shall be divided on the basis of one-twelfth (1/12) paid by City and eleven-twelfths (11/12) paid by District. Maintenance agreements shall be extended to the additional fiber optic cable. The cost of maintenance shall be shared on the same basis. B. If District determines that it will expand any of the rings listed on Exhibit A or any other ring in the District's fiber optic system, District shall give notice to City. District shall pay the cost of such expansion unless City agrees, within thirty (30) days after notice, to use a portion of the expanded ring to serve its facilities. If City so agrees, the cost of such expansion shall be divided one-twelfth (1/12) paid by City and eleven-twelfths (11/12) paid by District. The cost of maintenance shall be shared on a similar basis. C. If either party declines to pay a share of cost as set out in sections A and B herein and the expansion is constructed with twelve (12) pairs of fiber, and if the non- participating party decides after the thirty (30) day notice period that it will use such expansions, the party shall share the cost of the expansion on the same basis (one-twelfth (1/12) to City and eleven-twelfths (11/12) to District), and the party paying the cost for initial construction shall also receive six (6%) percent per annum for a maximum of three (3) years of the cost expended for the expansion . Maintenance shall then be shared as set out herein. D. Connections from expanded fiber optic ring to facilities of a party shall be paid for by the party requesting the service to the facility. The party requesting the connection shall receive an estimate of the cost of connection for approval prior to the connection being completed and maintenance cost of such extension shall be paid for by party requesting the extension. -3 - 5. INTERNET ACCESS. The City shall have the option to request District to provide internet access using the Fiber and such access shall be provided if the following conditions are met: A. District's internet access provider agrees to amend its agreement to allow access by the City to the internet. The District shall make such a request when requested by City. B. The City and District agree to a specified bandwidth of internet use. C. City pays to District the prorated cost of internet service based upon the total internet service provided by the internet service provider to District and the City, with such costs to be paid as charges accrue. 6. OBLIGATIONS OF CITY. The City agrees to make the following payments: A. A one (1) time payment of $163,855 for the cost of the Fiber and Accessories paid in the following installments: October 1, 2007 $81,927.50 April 1, 2008 $81,927.50 B. A portion of the cost of maintenance of the Fiber, with the City's portion being the amount of$4,544 per calendar year, and the amount to be prorated for any partial year after the Effective Date of this Agreement. The maintenance cost shall be paid by City on November 1 of each year and shall be past due after December 1. C. Additional maintenance charges for after hours or unusual maintenance as set out in the Grande Agreement and as applicable to the Fiber. D. Costs incurred by the District for additional equipment required as a result of conveying the Fiber to the City, with estimates of such costs to be provided to City for approval prior to District incurring such cost. Exhibit B. E. Cost of connections from the Fiber to the City facilities as designated on F. Costs for Technical Assistance by District. For the first twelve (12) months of the term of this Agreement, District shall provide at the option of City ten (10) hours per month of technical assistance as requested by City. The provision of technical assistance to City will be subject to the prior needs of District. The cost of such technical assistance will be $500 per month. The City may request additional technical assistance in blocks of ten (10) hours at a cost of$500 for each ten- (10) hour block. Additional service will be provided on request by City if such service is available from the District, and the cost of such service will be fifty dollars per hour ($50). Hours of support will be Monday through Friday from 8:00 a.m. until 5:00 p.m. After such normal hours of support, support will be provided based on a seventy-five dollar ($75) per hour charge. City will be allowed to accumulate unused hours of technical service for -4- the first twelve (12)months of this Agreement and to utilize such unused hours within the second year of this Agreement. Charges and hours provided will be reviewed in the second year and each year thereafter of this Agreement to determine future agreements between the parties. G. Cost of internet service if this option is exercised by City. 7. DEFAULT AND REMEDIES. A. In the event of a default by the City, the following provisions shall apply: 1. If City defaults in the payment of the initial payment due to District, District shall have the right to terminate this Agreement. 2. If City defaults in the payment of any maintenance payments due, District will have the right to terminate the provision of maintenance services. 3. If City defaults in the payment of expenses for technical assistance, District shall have the right to terminate such technical assistance. 4. Other defaults. In the event of default of any obligations by City to District, District shall have the right to recover actual damages incurred by the District, together with reasonable attorneys fees and costs of court. B. Default by District: 1. If District fails to convey the Fiber and provide test results as set out in this Agreement, the City may terminate the Agreement and recover any amounts of the initial payment that it has made. 2. If District shall fail to make reasonable efforts to enforce the maintenance obligations of Grande and obtain compliance with the agreement between District and Grande, City shall be entitled to cease any payments for maintenance. 3. If District fails to provide technical assistance as agreed herein, the City may terminate all payments for technical assistance. 4. Other defaults. In the event of default of any obligations by District to City, City shall have the right to recover actual damages incurred by the City, together with reasonable attorneys fees and costs of court. C. No default shall be declared by either party until the party declaring the default has given the other party written notice of such default and allowed thirty (30) days from the date of the mailing of such notice for the default to be cured. -s - 8. TIME FOR PERFORMANCE. A. The District shall obtain the agreement of Grande, TXU and the City of Austin as provided herein within sixty(60) days from the Effective Date of this Agreement. B. The bill of sale and related tests shall be delivered within sixty (60) days from the Effective Date of this Agreement. C. All payments shall be made within thirty (30) days from the required date for payment. D. The technical assistance shall commence within thirty (30) days from the Effective Date of this Agreement. 9. TERM OF AGREEMENT AND EXTENSIONS OF TERM. The initial term of this Agreement shall be for a period of twenty (20) years from its Effective Date. At the end of the initial term, this Agreement shall be automatically renewed for one- (1) year successive periods unless either party to this Agreement shall, prior to one hundred twenty (120) days before the end of the initial term or any extended term, give notice to the other that it desires to terminate the Agreement. 10. WARRANTY BY DISTRICT. The District warrants that the Fiber will be conveyed AS IS, WHERE IS and District has good title to the Fiber and the authority to convey title to the Fiber to City. 11. EASEMENTS AND PERMITS. Each party hereby grants to the other such easements, permits, rights of way and rights as may be necessary for the use of the other party's property, streets and rights of way to carry out the terms and conditions of this Agreement, without payment of any further cost or expense except at set out in this Agreement. Each party agrees to execute such easements or documents evidencing such rights as may be required by either party or any other governmental authority. 12. EXPANSION. In the event of any expansion of rings agreed to by the parties as set out herein, parties will execute an addendum to this Agreement setting out the details of such expansion and attach such addendum as an addendum to this Agreement. 13. USE OF FIBER. City agrees that it will use the Fiber only for lawful governmental purposes. 14. DESIGNATION OF REPRESENTATIVES AND AUTHORITY OF REPRESENTATIVES. City and District will each designate a representative to be the designated party for all actions with regard to this Agreement. Either party may change the designated representative by written notice to the other. The Superintendent of District and the City Manager of City are authorized to enter into agreements regarding amendments to this Agreement, extensions and addenda. 15. INSURANCE. Each party shall be responsible for its own insurance coverage. -6- 16. CURRENT REVENUES. The parties agree that all amounts to be expended hereunder shall be expended only from current budgets adopted by the governing bodies of the respective entities. 17. GOVERNING LAW. Laws regarding independent school districts shall govern this Agreement and all action under this Agreement. 18. APPROVAL OF CITY ELECTRONIC EQUIPMENT. Any City electronic equipment connected to the Fiber must be approved by District prior to installation. 19. ASSIGNMENT, SUBCONTRACT, NO THIRD PARTY BENEFICIARIES. This Agreement is for the benefit of the parties hereto and may not be assigned, in whole or in part, by either party to any other person or entity unless the other party gives its prior written approval. This Agreement is entered into for the sole benefit of the parties hereto. Nothing in this Agreement shall be construed as conferring any rights, benefits, remedies or claims from any persons, firm, corporation or other entity. 20. NOTICES. Any notice or demand required or permitted to be made hereunder shall be made by certified or registered mail to the addresses set out herein and shall be deemed received on the second business day after deposit in the United States Mail. Either party may, from time to time, designate any other address for this purpose by written notice to the other party. Round Rock Independent School District Attn: Superintendent 1311 Round Rock Avenue Round Rock, Texas 78681 with a copy to: McGinnis, Lochridge & Kilgore, L.L.P. Attn: William H. Bingham 600 Congress Avenue. Suite 2100 Austin, Texas 78701 City of Round Rock Attn: City Manager 221 E. Main Street Round Rock, Texas 78664 with a copy to: Steve Sheets, Esq. Sheets & Crossfield 309 E. Main Street Round Rock, Texas 78664 -7- Dated to be effective this day of , 2007 ("Effective Date"). ROUND ROCK INDEPENDENT SCHOOL DISTRICT By: CITY OF ROUND ROCK, TEXAS By: -8- DATE: July 5, 2007 SUBJECT: City Council Meeting - July 12, 2007 ITEM: 11A1. Consider a resolution authorizing the Mayor to execute an Interlocal Agreement with the Round Rock ISD for fiber optic networking infrastructure and related services. Department: Information Technology & Communication Staff Person: Brian Finger, Manager Justification: The City's current data communications infrastructure has been outgrown. This interlocal agreement with the Round Rock ISD will convey fiber optic networking infrastructure to the city, greatly increasing its current and future telecommunications capabilities. Funding• Cost: $163,855 and $4,544 annually Source of funds: General Self Financed Construction Outside Resources: Round Rock Independent School District Background Information: The Round Rock ISD has constructed rings of telecommunications fiber throughout the area for their own use. This fiber optic cable is composed of 12 pairs, one of which will be conveyed to the City for our independent use. In addition space and connectivity of the city will be made available in the disaster room at the Parmer Lane sports facility. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS INTERLOCAL AGREEMENT BETWEEN THE ROUND ROCK INDEPENDENT SCHOOL DISTRICT AND THE CITY OF ROUND ROCK REGARDING FIBER OPTIC CABLE AND RELATED SERVICES This Interlocal Agreement regarding fiber optic cable ("Agreement") by and between the Round Independent School District (hereinafter "District") and the City of Round Rock, Texas (hereinafter "City") is entered into for the purposes of the District providing certain governmental services for the benefit of City. RECITATIONS WHEREAS, District has in place a fiber optic communications network to serve the District's governmental functions; WHEREAS, at the time of construction of the District's fiber optic network, certain additional capacity in the network was constructed; WHEREAS, due to the continuation in the technical improvement of the capacity of the District's fiber optic network, certain fiber optic network facilities could be provided to the City without diminishing the capability of the District to meet its future needs; WHEREAS, City and District have substantial areas of overlapping jurisdiction; WHEREAS, portions of the District's fiber optic network is located in areas that are near City facilities; WHEREAS, it would be beneficial to the City and the District to provide some of the excess fiber optic facilities to the City in order to meet the City's needs for communication among its various facilities; NOW, THEREFORE, the City and District have agreed to convey certain fiber optic facilities and enter into joint services to provide a fiber optic network for the City. The parties hereto agree as follows: 1. AUTHORITY. This Agreement is entered into between City and District pursuant to the authority contained in the Interlocal Cooperation Act, Government Code Section 791 et seq. The provisions of Section 791 et seq. of the Government Code are incorporated into this Agreement and this Agreement shall be interpreted in accordance with these sections of the Government Code. 2. CONVEYANCE OF FIBER OPTIC CABLES. A. Pursuant to the terms of this Agreement and upon fulfillment of various conditions herein, District shall convey to City one pair of fiber optic cables described on Exhibit A ("Fiber"). Included within the definition of Fiber and as further set out on Exhibit A, in addition to the pair of fiber optic cables, District shall also convey to City an undivided one- twelfth (1/12) interest in all poles, messenger wires, sheaths, pole attachments, ducts and similar equipment to be used to protect, hang and hold in place the fiber optic cables (the "Accessories") conveyed to City and to the extent such Accessories are owned by District. District shall retain ownership of other pairs of fiber optic cables, generally consisting of eleven (11) other pairs, included within the fiber optic system. B. The Fiber to be conveyed to City is dark fiber defined as fiber optic cable in useable condition but without the necessary electronics to allow City to use the fiber optic cable. It is City's responsibility to supply the necessary electronics to make the Fiber useable. 3. CONDITIONS RELATED TO CONVEYANCE. The following conditions and actions shall occur on or prior to the conveyance of the Fiber: A. Prior to conveyance, District will provide City electronic test results suitable to City to show the continuity of the Fiber and otherwise establish that the Fiber is dark fiber in a useable condition. B. District will obtain, for the benefit of City a consent in form and content acceptable to the City from Grande Communications Networks, Inc. ("Grande") to the conveyance of the Fiber to the City and the continued use of the Fiber by City pursuant to the agreement between District and Grande effective January 28, 2002 ("Grande Agreement"). C. District will assign to City an interest in the maintenance agreement for Fiber with Grande that obligates Grande to maintain the Fiber during the period of the maintenance agreement that terminates in 2012. District will obtain the consent of Grande in form and content acceptable to the City to the assignment of the interest in the maintenance agreement. D. At such time as the Grande Agreement terminates, City and District agree that they will enter into a joint maintenance agreement with Grande or another party in terms and content that is mutually acceptable to City and District. E. City will install, test and make ready for service a pair of fiber optic cables from the Fiber located on a ring location to City facilities designated on Exhibit B. The Fiber will be terminated in a communications area within the City facilities designated by City. City will provide appropriate tests to show that the Fiber is properly installed and useable in the City facilities. The installation of the Fiber connections will be installed on the schedule set out on Exhibit B. City shall contract with Grande to install and test these fiber optic connections. F. District will provide an agreement with the City of Austin whereby the City of Austin consents to the use of its poles and pole attachments for the Fiber. District will also provide an agreement with the City of Austin to enter into a direct contract between the City of Austin and City in the event City of Austin defaults on the City of Austin fiber optic agreement obligations or the City of Austin fiber optic agreement otherwise terminates. G. District will provide an agreement with Texas Utilities whereby Texas Utilities consents to the use of its poles and pole attachments for the Fiber. District will also -2- provide an agreement with Texas Utilities to enter into a direct contract between Texas Utilities and City in the event Texas Utilities defaults on the Grande fiber optic agreement obligations or the Texas Utilities fiber optic agreement otherwise terminates. H. District will provide access to City to space in the District's Parmer Lane communications room at the District Athletic Complex located at 10211 West Parmer Lane. The District will designate space within the communications room for one standard computer rack enclosure, network connections and suitable electric power. The City will supply any required electronics and other equipment located within the communications room for the City's benefit. Access to the communications room will be under the supervision of District. I. District will provide fiber optic and communication technical assistance to City using District personnel. The terms of such assistance and the cost are set out hereinafter. 4. EXPANSION. A. If the City requests an expansion of any of the rings described on Exhibit A in which the Fiber is located, or any other ring in the District fiber optic system, City shall give notice to District, and City shall pay the cost of such expansion unless District agrees within thirty (30) days after notice that it will use the expanded ring to serve District facilities. If District agrees that it will use the expanded ring, the cost of such expansion shall be divided on the basis of one-twelfth (1/12) paid by City and eleven-twelfths (11/12) paid by District. Maintenance agreements shall be extended to the additional fiber optic cable. The cost of maintenance shall be shared on the same basis. B. If District determines that it will expand any of the rings listed on Exhibit A or any other ring in the District's fiber optic system, District shall give notice to City. District shall pay the cost of such expansion unless City agrees, within thirty (30) days after notice, to use a portion of the expanded ring to serve its facilities. If City so agrees, the cost of such expansion shall be divided one-twelfth (1/12) paid by City and eleven-twelfths (11/12) paid by District. The cost of maintenance shall be shared on a similar basis. C. If either party declines to pay a share of cost as set out in sections A and B herein and the expansion is constructed with twelve (12) pairs of fiber, and if the non- participating party decides after the thirty(30) day notice period that it will use such expansions, the party shall share the cost of the expansion on the same basis (one-twelfth (1/12) to City and eleven-twelfths (11/12) to District), and the party paying the cost for initial construction shall also receive six (6%) percent per annum for a maximum of three (3) years of the cost expended for the expansion . Maintenance shall then be shared as set out herein. D. Connections from expanded fiber optic ring to facilities of a party shall be paid for by the party requesting the service to the facility. The party requesting the connection shall receive an estimate of the cost of connection for approval prior to the connection being completed and maintenance cost of such extension shall be paid for by party requesting the extension. -3 - 5. INTERNET ACCESS. The City shall have the option to request District to provide internet access using the Fiber and such access shall be provided if the following conditions are met: A. District's internet access provider agrees to amend its agreement to allow access by the City to the internet. The District shall make such a request when requested by City. B. The City and District agree to a specified bandwidth of internet use. C. City pays to District the prorated cost of internet service based upon the total internet service provided by the internet service provider to District and the City, with such costs to be paid as charges accrue. 6. OBLIGATIONS OF CITY. The City agrees to make the following payments: A. A one (1) time payment of $163,855 for the cost of the Fiber and Accessories paid in the following installments: October 1, 2007 $81,927.50 April 1, 2008 $81,927.50 B. A portion of the cost of maintenance of the Fiber, with the City's portion being the amount of$4,544 per calendar year, and the amount to be prorated for any partial year after the Effective Date of this Agreement. The maintenance cost shall be paid by City on November 1 of each year and shall be past due after December 1. C. Additional maintenance charges for after hours or unusual maintenance as set out in the Grande Agreement and as applicable to the Fiber. D. Costs incurred by the District for additional equipment required as a result of conveying the Fiber to the City, with estimates of such costs to be provided to City for approval prior to District incurring such cost. E. Cost of connections from the Fiber to the City facilities as designated on Exhibit B. F. Costs for Technical Assistance by District. For the first twelve (12) months of the term of this Agreement, District shall provide at the option of City ten (10) hours per month of technical assistance as requested by City. The provision of technical assistance to City will be subject to the prior needs of District. The cost of such technical assistance will be $500 per month. The City may request additional technical assistance in blocks of ten(10)hours at a cost of$500 for each ten- (10)hour block. Additional service will be provided on request by City if such service is available from the District, and the cost of such service will be fifty dollars per hour ($50). Hours of support will be Monday through Friday from 8:00 a.m. until 5:00 p.m. After such normal hours of support, support will be provided based on a seventy-five dollar ($75) per hour charge. City will be allowed to accumulate unused hours of technical service for -4- the first twelve(12)months of this Agreement and to utilize such unused hours within the second year of this Agreement. Charges and hours provided will be reviewed in the second year and each year thereafter of this Agreement to determine future agreements between the parties. G. Cost of internet service if this option is exercised by City. 7. DEFAULT AND REMEDIES. A. In the event of a default by the City, the following provisions shall apply: 1. If City defaults in the payment of the initial payment due to District, District shall have the right to terminate this Agreement. 2. If City defaults in the payment of any maintenance payments due, District will have the right to terminate the provision of maintenance services. 3. If City defaults in the payment of expenses for technical assistance, District shall have the right to terminate such technical assistance. 4. Other defaults. In the event of default of any obligations by City to District, District shall have the right to recover actual damages incurred by the District, together with reasonable attorneys fees and costs of court. B. Default by District: 1. If District fails to convey the Fiber and provide test results as set out in this Agreement, the City may terminate the Agreement and recover any amounts of the initial payment that it has made. 2. If District shall fail to make reasonable efforts to enforce the maintenance obligations of Grande and obtain compliance with the agreement between District and Grande, City shall be entitled to cease any payments for maintenance. 3. If District fails to provide technical assistance as agreed herein, the City may terminate all payments for technical assistance. 4. Other defaults. In the event of default of any obligations by District to City, City shall have the right to recover actual damages incurred by the City, together with reasonable attorneys fees and costs of court. C. No default shall be declared by either party until the party declaring the default has given the other party written notice of such default and allowed thirty(30) days from the date of the mailing of such notice for the default to be cured. -5 - 8. TIME FOR PERFORMANCE. A. The District shall obtain the agreement of Grande, TXU and the City of Austin as provided herein within sixty(60) days from the Effective Date of this Agreement. B. The bill of sale and related tests shall be delivered within sixty (60) days from the Effective Date of this Agreement. C. All payments shall be made within thirty(30) days from the required date for payment. D. The technical assistance shall commence within thirty (30) days from the Effective Date of this Agreement. 9. TERM OF AGREEMENT AND EXTENSIONS OF TERM. The initial term of this Agreement shall be for a period of twenty (20) years from its Effective Date. At the end of the initial term, this Agreement shall be automatically renewed for one- (1) year successive periods unless either party to this Agreement shall, prior to one hundred twenty (120) days before the end of the initial term or any extended term, give notice to the other that it desires to terminate the Agreement. 10. WARRANTY BY DISTRICT. The District warrants that the Fiber will be conveyed AS IS, WHERE IS and District has good title to the Fiber and the authority to convey title to the Fiber to City. 11. EASEMENTS AND PERMITS. Each party hereby grants to the other such easements, permits, rights of way and rights as may be necessary for the use of the other party's property, streets and rights of way to carry out the terms and conditions of this Agreement, without payment of any further cost or expense except as set out in this Agreement. Each party agrees to execute such easements or documents evidencing such rights as may be required by either party or any other governmental authority. 12. EXPANSION. In the event of any expansion of rings agreed to by the parties as set out herein, parties will execute an addendum to this Agreement setting out the details of such expansion and attach such addendum as an addendum to this Agreement. 13. USE OF FIBER. City agrees that it will use the Fiber only for lawful governmental purposes. 14. DESIGNATION OF REPRESENTATIVES AND AUTHORITY OF REPRESENTATIVES. City and District will each designate a representative to be the designated party for all actions with regard to this Agreement. Either party may change the designated representative by written notice to the other. The Superintendent of District and the City Manager of City are authorized to enter into agreements regarding amendments to this Agreement, extensions and addenda. 15. INSURANCE. Each party shall be responsible for its own insurance coverage. -6- 16. CURRENT REVENUES. The parties agree that all amounts to be expended hereunder shall be expended only from current budgets adopted by the governing bodies of the respective entities. 17. GOVERNING LAW. Laws regarding independent school districts shall govern this Agreement and all action under this Agreement. 18. APPROVAL OF CITY ELECTRONIC EQUIPMENT. Any City electronic equipment connected to the Fiber must be approved by District prior to installation. 19. ASSIGNMENT, SUBCONTRACT, NO THIRD PARTY BENEFICIARIES. This Agreement is for the benefit of the parties hereto and may not be assigned, in whole or in part, by either party to any other person or entity unless the other party gives its prior written approval. This Agreement is entered into for the sole benefit of the parties hereto. Nothing in this Agreement shall be construed as conferring any rights,benefits, remedies or claims from any persons, firm, corporation or other entity. 20. NOTICES. Any notice or demand required or permitted to be made hereunder shall be made by certified or registered mail to the addresses set out herein and shall be deemed received on the second business day after deposit in the United States Mail. Either party may, from time to time, designate any other address for this purpose by written notice to the other party. Round Rock Independent School District Attn: Superintendent 1311 Round Rock Avenue Round Rock, Texas 78681 with a copy to: McGinnis, Lochridge &Kilgore, L.L.P. Attn: William H. Bingham 600 Congress Avenue. Suite 2100 Austin, Texas 78701 City of Round Rock Attn: City Manager 221 E. Main Street Round Rock, Texas 78664 with a copy to: Steve Sheets, Esq. Sheets &Crossfield 309 E. Main Street Round Rock, Texas 78664 -7- Dated to be effective this day of , 2007 ('Effective Date"). i ROUND ROCK INDEPENDENT SCHOOL DISTRICT Y CITY OF ROUND ROCK, TE By: -8- Exhibit A Twenty-four strands of Corning MetroCore Fiber. j ____ `';, 9titE EihornRt,3 Wm2T� Round Rock ISD WAN Inftastructure Exhibit A Stony Point Ring Administrative Rm* 9 3 i uS E1imrTsek, Pati_itrmetm MOM' Optem 5200 With �7m motto Opters 6200 31009 r 52000 ', Wuh e sena chant's 9 a. 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