TOWN COUNCIL MEETING AGENDA ITEM NO: 1 JULY 21, 2011

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2 1 of 70 TOWN COUNCIL MEETING AGENDA ITEM NO: 1 JULY 21, 2011 [ ] CONSENT ITEM [ ] REGULAR ITEM [ X ] WORK SESSION ITEM FROM: THROUGH: Doug Powell, Executive Director of Development Services Harlan Jefferson, Town Manager Kent Collins, P.E., Assistant Town Manager PRESENTER: Doug Powell, Executive Director of Development Services ITEM: Hold a discussion regarding a draft license agreement which would allow for the installation of a Distributed Antenna System within the Town. [ ] Ordinance [ ] Resolution [ ] Motion [ X ] Direction I. SUMMARY: This work session is to receive a presentation and discussion on the proposed installation of a Distributed Antenna System (DAS) within the Town. II. BACKGROUND INFORMATION: A DAS is a horizontal antenna array to serve a geographic area rather than a vertical pole with antenna arrays. It is comprised of multiple receivers attached to utility poles or other poles, and utility boxes located on those poles, and it is connected with fiber optic cables. American Tower has provided additional information on DAS within their letter of intent (Attachment A). Last year, representatives of American Tower Corporation contacted staff regarding their desire to use a DAS within the Town s boundaries. This initial discussion with staff was followed by a meeting with the Executive Development Team (EDT) on September 23, The EDT meeting resulted in the staff being directed to work on drafting a licensing agreement for Town Council review (Attachment B). The proposed deployment of a DAS within the Town is specified within the proposed agreement. The antennas and equipment boxes are proposed to be located on 29 existing poles within the rights-of-way. At an additional four locations, new poles will be installed because there are no existing poles available. American Tower has contacted and will need the approval of the HOA for the Chateau du Lac neighborhood for the installation of these new poles within their private street rights-of-way. The new nodes installed on the poles will be connected with fiber optic cable and will link the system to the carrier s overall cell systems. The fiber optic cable will terminate at a switching hub.

3 2 of 70 One of the impetuses for proposing a DAS for the Town is the past experience of new cell tower applications. Specifically, two new cell towers were proposed in 2006 to serve the area south of FM The public hearing at the Planning and Zoning Commission meeting of September 25, 2006, resulted in a great deal of negative comments from citizens. The items were recommended for denial by the Planning and Zoning Commission and led to the applications being withdrawn by the applicants. III. FISCAL IMPACT: N/A IV. LEGAL REVIEW: Alan Lathrom, of Brown & Hofmeister, L.L.P., has reviewed the draft license agreement as to form and legality. V. ATTACHMENTS: A. Letter of Intent B. Draft License Agreement VI. RECOMMENDED MOTION OR ACTION: The Town Council may direct staff to bring forward the licensing agreement as drafted, direct staff to prepare a franchise agreement, or choose to regulate the system through the zoning regulations. The regulation of the system using zoning would require the creation of a new defined land use, creation of development standards, and assumed requirement for approval of a specific use permit.

4 3 of 70 To: Doug Powell, Executive Director, Development Services From: Karmen Rajamani, Regional Director, Strategic Relations and Network Policy Date: July 12, 2011 Re: Executive Summary ATC Outdoor DAS, LLC Flower Mound TX DAS Network ATC Outdoor DAS, LLC ( ATC ) respectfully submits this executive summary outlining its proposed DAS network in the Town of Flower Mound, TX. Please find attached the following supplementary documents: 1. Map of node locations with antenna and pole type indicated 2. Photos of actual installed nodes What is DAS? DAS is an infrastructure solution to provide wireless telecommunications coverage where a traditional tower or rooftop antennas may not be appropriate. A DAS network provides outstanding service with little visual impact for the surrounding community. DAS is defined as distributed antenna system and consists of nodes connected by fiber optic cable to a hub (where the electronics are located to processes the calls). Nodes are small, unobtrusive antennas that blend in with the existing structures in the public right of way, such as utility poles, traffic signal poles, or street light poles. The idea is to split the transmitted signal among several antenna sites (nodes), separated geographically but with reduced total power, improved reliability, and with little or no visual impact to the surrounding community. ATC is a neutral-host DAS provider, meaning ATC builds DAS networks that will be used by multiple wireless providers. ATC has a national wireless provider committed to this project with interest expressed by other national carriers. Our proposed DAS network can be used by multiple users, meaning one set of node equipment (one antenna and two control boxes) can be used by two or more carriers. Why DAS in Flower Mound? Currently, our committed customer, and several other national wireless carriers, is unable to provide reliable wireless service in the Flower Mound area. They understand that a new traditional tower is not viable option in the community and that roof top antennas cannot be placed in the needed coverage area. DAS is a way to provide the coverage required by the wireless carrier and expected by your residents in a visually unobtrusive manner.

5 4 of 70 Network Specifics ATC proposes to install a DAS network consisting of 33 nodes within the Town of Flower Mound jurisdictional boundaries. ATC would install the hub at an existing tower site we own at 2100 Long Prairie Road in Flower Mound. The node equipment consists of an antenna and two control boxes mounted side by side. Each control box is four feet tall and two feet wide. The antenna will be either (1) one omni-directional antenna that is 8 feet tall and two inches wide or (2) two panel antennas where each is four feet tall and one foot wide. The antenna is placed at the top of an existing utility pole and the control box is placed about 12 feet up on the pole. ATC will install its fiber aerially or underground, following the existing fiber lines placed in the public right of way. Timeline Please note that ATC and Town staff have been working together on this project for almost a year. ATC and Town staff met in August 2010 to discuss the project and the Town Attorney identified the need for a right of way agreement. In May, we came to a final version of the right of way agreement. Next Step ATC respectfully requests the opportunity to present our proposed DAS network to the Town Council at the next available work session. Thank you.

6 5 of 70 Town of Flower Mound, TX ATC Outdoor DAS Executive Summary Supplementary Documentation July 12, 2011

7 6 of 70 Outdoor DAS Aerial Installation Overview Hub Fiber Nodes 2

8 7 of 70 Node Locations

9 8 of 70 Actual Installed Nodes Charlotte, NC

10 9 of 70 Actual Installed Nodes Charlotte, NC

11 10 of 70 Actual Installed Nodes San Antonio, TX Grosse Pointe, MI

12 11 of 70 Attachment B Deal Points of License Agreement for American Tower Distributed Antenna System Following is a summary of deal points for a License Agreement that would allow American Tower Company ( ATC ) to use the Town s rights of way to install and operate a Distributed Antenna System ( DAS ) in Flower Mound. 1. Provides limited use of rights of way in a specified area only. Antenna mounted at top of existing wooden poles unless no pole in the area in which event a new pole will be installed. Fiber optic cable suspended on and between poles where poles exist and otherwise underground. ATC to comply with Town regulation of right of way. Town has right to supervise and direct tree trimming. Any increase or change in locations requires further Town Council approval. 2. ATC separately contracts with pole owners to attach equipment and lines. 3. Term. Initial Term of 10 years. Up to three 5 year renewal terms. o Subject to renegotiation of compensation and other terms. 4. Termination. ATC can terminate at any time upon 90 days written notice and removal of equipment from right of way. If ATC holding over outside the initial term if not extended or outside of any renewal term both ATC and the Town may terminate upon 60 days written notice. 5. Abandonment of equipment. ATC must submit application to abandon in place. Town may require ATC to remove or modify (to protect the public health and safety) the equipment sought to be abandoned at ATC s cost and expense. If ATC fails to respond to Town within 60 days equipment may become Town s property and/or be modified or removed by Town at ATC s cost. 6. Fees & Payment for License. 5% of ATC s annual gross revenues from DAS paid to Town in quarterly payments. Possible in kind contribution of dark fiber in the area of the DAS. ATC pays all building and permitting fees associated with DAS. 7. Town has right to audit. 8. ATC to provide same insurance coverage and levels required of franchise utilities. 9. ATC to provide a $100,000 performance bond guaranteeing faithful adherence to the License Agreement.

13 12 of 70 ATTACHMENT B LICENSE AGREEMENT THIS AGREEMENT ( License Agreement ) is made and entered into as of this day of 20, (the Effective Date ) by and between the Town of Flower Mound, a municipal corporation and home-rule municipality of the State of Texas with its principal offices located at 2121 Cross Timbers Road, Flower Mound, Texas ( Licensor or the Town ) and ATC Outdoor DAS, LLC, a limited liability company with its principal place of business located at ( Licensee or ATC), each referred to as a Party or jointly as the Parties. A/ RECITALS WHEREAS, ATC, is a certificated telecommunications provider licensed by the Texas Public Utility Commission to offer facilities-based and resale telecommunications services in the state, but does not currently offer retail telecommunications service in Flower Mound; and WHEREAS, the Town owns and/or controls and regulates public street and alley rightsof-way and public utility easements within the boundaries of the Town of Flower Mound; and WHEREAS, ATC desires to install and operate a DAS Network within the boundaries of the Town, subject to the requirements of this License Agreement and pursuant to state and federal laws; and WHEREAS, the installation, maintenance, and operation of ATC s DAS Network on public rights-of-way will be performed in a manner consistent with all applicable Town ordinances and any other applicable regulations; and WHEREAS, ATC has entered into one or more Pole Attachment Agreements with Oncor and Co-Serv Energy for the purpose of installing its DAS Network on Oncor and Co-Serv Energy poles erected on or about public rights-of-way; and WHEREAS, installation of ATC's DAS Network is in the public interest and will further the convenience of the business community and citizens of the Town of Flower Mound; and WHEREAS, the Town is willing to grant ATC a non-exclusive license to install, maintain, operate, repair and replace its DAS Network within discrete segments of the rights-ofway for all legal purposes, subject to the requirements of this License Agreement and the rights granted to Licensee herein, and pursuant to permits issued by the Town s Director of Engineering Services; WHEREAS, Licensee s DAS Network is subject to the Communications Act of 1934, as amended, including but not limited to Section 253 thereof, 47 U.S.C. 253 (hereinafter referred to as the Federal Telecommunications Laws ), which authorize the Town to regulate its Rights-of-Way. 1

14 13 of 70 WHEREAS, the License Agreement is consistent with Section of the Public Utility Regulatory Act (Texas Utilities Code) which reserves a municipality s historical right to control and receive reasonable compensation for access to the municipality's public streets, alleys, or rights-of-way or to other public property ; and WHEREAS, the Town hereby set forth rights, duties and obligations of ATC in this License Agreement. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN SET FORTH, IT IS AGREED BY THE PARTIES AS FOLLOWS: ARTICLE 1. DEFINITIONS. As used herein, the following terms shall have the following meanings. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular include the plural. The word shall is always mandatory and not merely permissive. 1.1 Aerial Project means the construction or installation of Network Facilities above ground in the public Rights-of-Way, by installing new wooden and metal utility poles to which Network Facilities are then attached, or by attaching Network Facilities to existing utility poles. 1.2 Cable Service shall have the meaning set forth in Section 602 of the Communications Act of 1934, as amended, 47 U.S.C. 522(6). 1.3 DAS Network means the Licensee s network of spatially separated antenna nodes located in the Town of Flower Mound Public Rights-of-Way and as identified in Exhibit "A" and connected to a common source via fiber optic cable providing DAS wireless service within a geographic area. 1.4 Director means the Licensor s Director of Engineering Services. 1.5 Gross Revenues means all revenues received by Licensee from the operation of the DAS Network, including, but not limited to all rents, payments, fees and other amounts actually collected from any Third Party whose connections do not qualify as access lines under Texas PUC Substantive Rule and received by Licensee and allocable to the period within the Term or any Renewal Term pursuant to any sublease agreement, together with any option fees collected from any actual or prospective Third Party for telecommunications services provided with respect to the DAS Network, but exclusive of: (a) to Licensee: any reimbursements or pass-throughs from or contributions by Third Party i. for utility charges, taxes and other pass-through expenses, or A/ ii. in connection with work performed or equipment installed by Licensee; 2

15 14 of 70 (b) construction management or supervision fees related to the installation of the Third Party s equipment; (c) initial contributions of capital by Third Party to reimburse Licensee in whole or in part for the installation of the Network Facilities in the DAS Network; and (d) speed bonuses or other incentive fees or remuneration paid by Third Parties to Licensee as an incentive or reward for securing multiple sites for Third Parties or which are not totally and directly related to the location of the Third Parties on the DAS Network. For the purpose of this definition, all revenues from telecommunications services that actually qualify as access lines under Texas PUC Substantive Rule shall be excluded from Gross Revenues. The obligation to include revenues from wholesale or retail customers ends when their contracts expire or terminate. 1.6 Licensed Areas means the portions of the Rights-of-Way in which Licensee is authorized to construct and install Network Facilities, as depicted and described on Exhibit A attached hereto and incorporated herein by reference for all purposes allowed by law and for which work a permit has been obtained by the Licensee from the Town. 1.7 Network Facilities means Licensee s communications equipment and facilities necessary to serve the DAS Network, including antennas, fiber optic cables and copper wiring, poles, guying, conduits, manholes, handholes, pull boxes, control boxes, repeaters, power sources, fittings, access points, antennas or other physical devises used to provide DAS service and similar furnishing and improvements located within, or above the Public Rights-of-Way. 1.8 Projects means Aerial Projects and Underground Projects, collectively, as those terms are defined in this License Agreement. 1.9 Rights-of-Way or Public Rights-of-Way means the surface of, air space above, and space below, any public highways, roads, streets, alleys, sidewalks and utility easements, as the same may now or hereafter exist within the boundaries of the Town and within the Town s jurisdiction now or hereafter-held by the Town or over which the Town exercises any rights of management control, but only as necessary to build the DAS Network as identified in Exhibit A. The term includes any Texas Department of Transportation right-of-way Texas PUC means the Public Utility Commission of Texas Third Party means any person or entity that is not a Party Underground Project means the construction or installation of Network Facilities in, through, or below the surface of the Rights-of-Way. ARTICLE 2. GRANT OF LICENSE AND OTHER PERMISSIONS. 2.1 The Town hereby grants ATC a non-exclusive license to use and occupy the Rights-of-Way listed and shown in Exhibit A to locate, erect, install, construct, replace, A/

16 15 of 70 reconstruct, repair, relocate, maintain and operate its DAS Network in, across or under the Rights-of-Way in Exhibit A including all necessary Network Facilities in connection with the DAS Network only, subject to the laws of the State of Texas and the Town s charter and laws as they exist now or may be amended from time to time and subject to the conditions outlined in this License Agreement. Licensee shall install its Network Facilities consistent with the Town s Rights-of-Way Construction Ordinance, Section , et seq., of the Flower Mound Code, and the Town s Engineering Design Criteria and Construction Standards Manual, and as such ordinances and standards may hereafter be amended. 2.2 The Licensee s right to use and occupy the Public Rights-of-Way shall not be exclusive and the Town reserves the right to grant a similar use of same to itself or any person or entity at any time during the period of this License Agreement, provided other granted uses do not interfere with the use and operation of Licensee s DAS Network. 2.3 The Licensee shall not have the ability to expand its DAS Network and Network Facilities beyond Rights-of-Way as depicted in Exhibit A. Any additions or expansions of the Licensee s DAS Network beyond that shown in Exhibit A shall require the approval of an amendment or supplement to this License Agreement by the Town Council. This License Agreement authorizes ATC or its agents to construct, install, own and operate the DAS Network and Network Facilities in public Rights-of-Way, together with the right to enter the Licensed Areas to maintain, locate, upgrade, repair, move, reconstruct, relocate, remove and replace Network Facilities in accordance with the Town's Rights-of-Way Construction Ordinance and the Town s Engineering Design Criteria and Construction Standards Manual, and as such ordinances and standards may hereafter be amended. 2.4 Consistent with the Town's Rights-of-Way Construction Ordinance and the Town s Engineering Design Criteria and Construction Standards Manual, as amended, the Director shall assign priorities among competing private uses of the Public Right-of-Way according to the order completed permit applications are received. 2.5 In consideration for the rights granted under this License Agreement, Licensee waives all claims, demands, causes of action, and rights it may assert against the Town because of any loss, damage, or injury to any equipment or any loss or degradation of services not caused solely by the Town. 2.6 Licensee shall use Network Facilities in the Licensed Areas solely for the purpose of operating the DAS Network including all services associated with and ancillary to a distributed antenna system, including RF Transport services, facilities-based telecommunications backhaul services, lease of broadband communications services and Network Facilities to other communications providers and to enterprises, as well as transport for in-building wireless networks. 2.7 All uses of the Licensed Areas not described herein are prohibited, including Cable Service. Nothing in this License Agreement shall be deemed to prohibit Licensee from using Network Facilities to offer Cable Service if Licensee first obtains a separate State-Issued Certificate of Franchise Authority from the Texas PUC and a cable system franchise from A/

17 16 of 70 Licensor, nor shall Licensee be prohibited from offering wholesale communications connections and services to Third Party operators of Cable Service licensed by and through the Texas PUC and the Town. ARTICLE 3. TERM. 3.1 Initial Term. The initial term of this License Agreement shall commence upon execution by both parties and, unless earlier terminated pursuant to any provision hereof, shall expire ten (10) years after the Effective Date. 3.2 Renewal Term(s). Upon application by the Licensee, this License Agreement may be renewed for up to three additional successive five (5) year terms by the Town pursuant to the procedures established in this Section, and in accordance with the applicable laws, regulations, and the rules of the State of Texas. a. At least six (6) months prior to the expiration of the License Agreement, the Licensee shall inform the Town Manager in writing of its intent to seek renewal of the License Agreement. During this time period, the parties may re-negotiate terms of the License Agreement. b. Upon determination by the Town Manager that the Licensee s performance is satisfactory, including payment of all access fees, each renewal, subject to the agreed renegotiation of compensation and other terms, may be granted for one period of five (5) years. c. Town shall not unreasonably withhold any Renewal Term of the License Agreement upon such terms and conditions as the Parties may agree provided that at the time Licensee requests renewal Licensee is in substantial compliance with all terms set forth in this License Agreement, including the payment of all access fees. ARTICLE 4. HOLDING OVER. 4.1 In any circumstance not described in Article 3 whereby Licensee remains in occupancy of the Rights-of-Way after expiration of this License Agreement, as extended, such holding over shall not be deemed to operate as a renewal or extension of this License Agreement, but shall only create a right of use from month to month (the sum of which months shall be Hold Over Period ) provided that Licensee continues to make all required payments and conforms to all other requirements of this License Agreement, and provided further that this License Agreement may be terminated at any time during the Hold Over Period by Licensor or Licensee upon sixty (60) days written notice to the other. ARTICLE 5. EARLY TERMINATION. 5.1 Licensee shall have the right to terminate this License Agreement early, without any further right or obligation to the Town by giving the Licensor ninety (90) days advance written notice and by removing the DAS Network and all Network Facilities from public Rightsof-Way within ninety (90) days of the effective date of the notice. A/

18 17 of 70 ARTICLE 6. ABANDONMENT OF NETWORK FACILITIES. 6.1 Whenever Licensee intends to abandon any of its Network Facilities within a Right-of-Way, it shall submit to the Town Manager and the Director an application describing the Network Facilities it proposes to be abandoned and the date of the proposed abandonment. Town may require Licensee, at Licensee s expense: (a) to remove the Network Facilities from the Public Right-of-Way; or (b) to modify the Network Facilities in order to protect the public health and safety or otherwise serve the public interest. If the Licensee fails to respond to the Town s request to remove or modify the Network Facilities within sixty (60) days, the Network Facilities proposed to be abandoned shall upon the sole election and determination of the Town be considered the property of the Town and subject to the Town s use, modification, demolition, removal or conveyance without any further compensation or benefit therefor being provided to Licensee. If Town determines that any Network Facilities so abandoned must be demolished, modified and/or removed to protect the public health and safety or otherwise serve the public interest then Licensee shall be responsible for and liable to the Town for any and all costs associated with such demolition, modification and/or removal. 6.2 Any fiber optic cable abandoned by Licensee shall be considered the property of the Town. 6.3 Notwithstanding the foregoing, Licensee shall have no obligation to remove any pole or conduit that is owned by a Third Party provided that said pole or conduit is properly permitted, constructed and installed and that such Third Party owner is then currently licensed by and through the Texas PUC and the Town. 6.4 If Licensee has installed a new utility pole pursuant to an Aerial Project under this License Agreement and a Third Party has acquired rights to attach its facilities to that pole, Licensee shall notify Licensor in writing of its intention to abandon such pole in place, and Licensor shall at no cost or expense to Licensor have the right to take ownership of such pole in its own name or require that such pole be transferred to a Third Party having attached facilities to it provided that said pole is properly permitted, constructed and installed and that such Third Party transferee is licensed by and through the Texas PUC and the Town. 6.5 In lieu of removing conduits installed by Licensor pursuant to an Underground Project, Licensee may elect to transfer ownership of the conduits to a Third Party having an appropriate license from the Texas PUC and the Town to own such facilities in public Rights-of- Way, or may abandon such conduits in place and transfer ownership to Licensor. 6.6 If ATC abandons any Network Facilities in place pursuant to this section, Licensee shall remain responsible for any such pole or conduit, save and except to the extent only that Licensee transfers such pole or conduit to a Third Party. Notwithstanding the provisions in section 6.4, at no time and under no circumstances shall Town be deemed the owner or responsible party for any property abandoned in place by ATC save and except only properly installed fiber optic cable. A/

19 18 of 70 ARTICLE 7. FEES AND PAYMENTS. 7.1 To compensate the Town for the use and occupancy of the Public Rights-of-Way, Licensee shall be required to pay the following fees: (a) (b) (c) Right-of-Way Access Fees. The Licensee shall pay the Town for the use of Public Rights-of-Way access fees totaling five percent (5 %) of Gross Revenues from the DAS Network. The percentage of Gross Revenues access fees will be paid during the Initial Term any subsequent Renewal Term(s) of this License Agreement and any Hold Over Period on a quarterly basis as prescribed under subsection (c). Fiber Strands. In addition to the annual access fee payments, Licensee shall make an in-kind contribution to the Town of ( ) strands of the fiber installed in the DAS Network ( Town Fiber ). In the event that such consideration is declared illegal by any court or governmental agency of competent jurisdiction, Licensee and the Town shall negotiate for mutually acceptable alternate consideration. The connection of electronic equipment to the Town Fiber shall be the responsibility of the Town and will be made at the sole cost and expense of the Town. The costs of construction, maintenance, repair and operation of the Town s network facilities and equipment not comprising a part of the DAS Network shall be the sole responsibility of the Town. The Town will enjoy the use of the Town Fiber under the terms and conditions of a ( ) year indefeasible right of use (IRU) agreement to be negotiated by the parties within ten (10) business days of Town Council approval of this License Agreement, which will be included as Exhibit C to this License Agreement. The IRU will survive the expiration or termination of this License Agreement, the early termination of this License Agreement, the assignment of this License Agreement, the assumption of the DAS Network by a Third Party, and the abandonment of the DAS Network by the Licensee. Remittance of Access Fees. Each quarterly access fee payment will be due on or before. Each payment shall be accompanied by a statement, substantially in the form provided in Exhibit B, which mathematically verifies the accuracy of the payment. Exhibit B is a financial report which will include Gross Revenues received during the applicable reporting period, a calculation of five percent (5%) of Gross Revenues, with electric utility charges and property taxes excluded from such Gross Revenues, and an explanation that the annual payment is made pursuant to this License Agreement. The financial report will be certified by an officer of the Licensee and will be accompanied by supporting documents to verify the accuracy of the reported information. The last payment under this License Agreement shall be paid within thirty (30) calendar days following termination or expiration of the License Agreement including any renewal term(s) and any Hold Over Period. A/

20 19 of Annexation. Subsequent to the Effective Date of this License Agreement, should the Town exercise the right to annex any area in which the Licensee has installed a portion of its DAS Network, the Licensee shall be responsible for paying additional access fees under this License Agreement associated with DAS Network that previously was found outside the Town s geographic boundaries, but following annexation will lie within the new Town boundaries. The effective date of the additional payment will be consistent with the annual payment process as defined in Section 7.1, above. The additional payment will be prorated by the number of months during the previous year following annexation. 7.3 Permit Fees. In addition to the aforementioned fees, the Licensee shall be required to obtain construction permits from the Director in order to install, construct, and maintain the DAS Network and Network Facilities in the Public Rights-of-Way, including paying the appropriate permitting fees. 7.4 Late Fees. Fees are deemed paid only when Licensor actually receives payment. Any Fee payment not timely paid shall accrue simple interest at the rate of one-and-one-half percent (1½ %) per month from the date the amount first came due until paid. ARTICLE 8. RIGHT TO AUDIT. 8.1 The Town, or its designees, shall have the right to audit, examine or inspect, at the Town s election and at Town s expense, all of the Licensee s records at any and all Licensee s locations relating to the DAS Network ( Licensee s Records ) during the term of the License Agreement and any renewal term or Hold Over Period and retention period herein. The audit, examination or inspection may be performed by a Town designee, which may include its internal auditors or an outside representative engaged by the Town. The Licensee agrees to retain the Licensee s Records for a minimum of four (4) years following termination of the License Agreement, unless there is an ongoing dispute under the License Agreement, then, such retention period shall extend until final resolution of the dispute. 8.2 The Licensee s Records shall be made available at the Licensee s designated offices within thirty (30) calendar days of the Town s request and shall include any and all information, materials and digital data of every kind and character generated as a result of this License Agreement. Examples of Licensee s Records include but are not limited to billings, billing reports, remittance records, books, trial balances, subsidiary ledgers, general ledgers, audited financial statements, invoices, receipts, customer contracts and other documents that are necessary to substantiate Gross Revenues. The Licensee bears the cost of producing, but not reproducing any and all requested business records. 8.3 The Town agrees that it will exercise the right to audit, examine or inspect only during regular business hours. The Licensee agrees to allow the Town s designee access to all of the Licensee s Records deemed necessary by Town or its designee(s), to perform such audit, inspection or examination. The Licensee also agrees to provide adequate and appropriate work space necessary to Town or its designees to conduct such audits, inspections or examinations if required. A/

21 20 of If an audit inspection or examination discloses that Licensee s remittances to the Town as previously reported for the period audited were underpaid, Licensee shall pay within thirty (30) days to the Town the underpaid amount for the audited period together with interest at the Interest Rate of five percent (5%) from the date(s) such amount was originally due. Further, if such understatement was in excess of five percent (5%) of Licensee s actual remittances to the Town, the reasonable actual cost of the Town s audit shall be reimbursed to the Town by the Licensee up to Ten Thousand Dollars ($10,000.00). 8.5 Failure by the Licensee to comply with the provisions of this audit clause may result in termination by the Town of all rights provided under this License Agreement to the Licensee. In the event of termination, the Licensee is responsible for the cost of termination and agrees to hold the Town harmless for any and all claims resulting from termination due to the Licensee s failure to comply with the audit clause. ARTICLE 9. LIMITED RIGHTS/SUBORDINATE USE. 9.1 This License Agreement is intended to convey limited rights and interests as set forth herein only as to those streets specifically identified in the attached Exhibit A in which the Town has an actual interest. It is not a warranty of title or interest in any Rights-of-Way; and it does not confer rights other than as expressly provided herein, or as provided in the Town s charter, ordinances, enabling legislation or permits. This License Agreement does not deprive the Town of any powers, rights or privileges it now has, or may later acquire in the future, to use, perform work on or to regulate the use of and to control public Rights-of-Way. 9.2 ATC s use of the public Rights-of-Way is subject to the prior and continuing right of the Town to use the specified Rights-of-Way for municipal purposes. ARTICLE 10. BREACH AND DEFAULT 10.1 Defaults Specific to Licensee. Licensee shall comply with the terms and provisions of this License Agreement and shall cause all persons using the Licensed Areas under the authority granted Licensee by this License Agreement to do the same. Licensee s failure to do so shall be a material breach by Licensee of this License Agreement. The Licensee shall not be excused from complying with any of the terms and conditions of this License Agreement by the previous failure of the Licensor to insist upon or seek compliance with such terms and conditions. This entire License Agreement is made upon the condition that each and every one of the following events shall be deemed an Event of Default by Licensee of Licensee s material obligations under this License Agreement: a. Licensee is in arrears in the payment of any Fee and does not cure such arrearage within thirty (30) days after receiving written notice from Licensor. b. Licensee fails to maintain any insurance required by this License Agreement. Notwithstanding the preceding sentence, such failure shall not be a material breach if within ten (10) days after notice from Licensor, Licensee provides to Licensor the required insurance and A/

22 21 of 70 the required evidence thereof. Such insurance must apply retroactively so that there is no gap in the insurance coverage required by this License Agreement. c. Licensee is the subject of a voluntary or involuntary bankruptcy, receivership, insolvency or similar proceeding or an assignment is made of any of Licensee s property for the benefit of creditors. d. Licensee fails to obtain or maintain any licenses, permits, or other governmental approvals pertaining to the use of the Rights-of-Way, or any bond required under this License Agreement or timely pay any taxes pertaining to the Rights-of-Way and does not cure such failure within thirty (30) days Default by Licensor or Licensee. This entire License Agreement is made upon the condition that either Party shall be deemed to have committed an Event of Default if either of them shall fail to or neglect to timely and completely do or perform or observe any provisions contained herein and such failure or neglect shall continue for a period of thirty (30) days after the Party in default has been notified in writing of such failure or neglect. The defaulting Party will take immediate corrective action to eliminate any such conditions(s) and will confirm in writing to the non-defaulting Party within thirty (30) days following receipt of written notice that the cited condition(s) has ceased or been corrected. Any condition which cannot be corrected within such thirty (30) day period will not be considered an Event of Default so long as the defaulting Party diligently proceeds to correct such condition upon receipt of notice from the non-defaulting Party Remedies. Upon the occurrence of any Event of Default or at any time thereafter, Licensor or Licensee may, at its option and from time to time, exercise any or all or any combination of the following cumulative remedies in any order and repetitively: a. Terminate this License Agreement; b. Assert, exercise or otherwise pursue any and all rights or remedies, legal or equitable, against the Party in default; or c. In the case of Licensor, unilaterally and without Licensee s or any other person s consent or approval, draw upon or obtain the value of any bond, in an amount sufficient to cure Licensee s Event of Default Force Majeure. Notwithstanding any other provision of this License Agreement, neither Party shall not be liable for delay in the performance of, or failure to perform, any of its obligations hereunder if such delay or failure is due in whole or substantial part to any fire, flood, accident, explosion, strike, labor disturbance, war, insurrection, sabotage, terrorist act, condemnation, prohibition or expropriation by any government or governmental agency, delays attributable to encountering hazardous materials or historical relics, unavailability or shortage of materials, or Acts of God, provided, however, that force majeure shall not excuse any failure, delay or refusal in making any payment when due. A/

23 22 of 70 ARTICLE 11. NO ADVERSE IMPACT UPON OTHER AUTHORIZED USERS Licensee recognizes that its use of the Public Right-of-Way is non-exclusive with respect to utilities and other entities occupying such Right-of-Way, and that the Town specifically reserves the right to install, and permit others to install utility facilities in the Rightsof-Way. In permitting such work to be done by others, the Town shall not be liable to Licensee for any damage caused by those persons or entities. Licensee shall adhere to the rules regarding the respective rights of such utilities and other entities as established by state and federal law, the Flower Mound Code and Charter, and by commonly accepted industry codes regarding engineering, safety, and construction of right-of-way facilities Except as permitted by applicable law or this License Agreement, ATC shall not damage, remove or impair the use of any public Rights-of-Way or any other authorized facilities therein, including without limitation, streets, sidewalks, sanitary sewers, storm drains, water mains, gas mains, poles, overhead or underground wires or conduits without the prior written approval of the Town and of any other owner(s) of the affected property Licensee may not impede, obstruct or otherwise interfere with the installation, existence and operation of any other facility in the public Rights-of-Way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical infrastructure, cable television and telecommunication wires, public safety and Town networks, and other telecommunications, utility, or municipal property unless: a. the owner(s) of the affected property expressly authorize Licensee s actions in writing; or b. as permitted by law If the Town requires Licensee to adapt or conform its Network Facilities, or in any way or manner to alter, relocate or change its property to enable any other corporation or person, except the Town, to use, or to use with greater convenience, any Right-of-Way, Licensee shall not be required to make any such changes until such other corporation or person shall have undertaken, with solvent bond, to reimburse Licensee for any loss and expense which will be caused by, or arise out of such removal, change, adaptation, alteration, conformance or relocation of Licensee s Facilities; provided, however, that the Town shall never be liable for such reimbursement Upon request, the Licensee will remove or raise or lower its Network Facilities to permit the moving of houses or other bulky structures. The reasonable and necessary expense of such temporary rearrangements shall be paid by the party or parties requesting them and the Licensee may require payment in advance. The Licensee shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary rearrangements. A/

24 23 of 70 ARTICLE 12. SUPERVISION BY TOWN OF LOCATION OF POLES AND CONDUITS In the event Licensee finds it necessary to install poles on Public Rights-of-Way in order to complete its DAS Network, such poles shall be of sound material and reasonably straight, and shall be set so that they will not interfere with the flow of water in any gutter or drain, and so that they will not unduly interfere with ordinary travel on the streets or sidewalks. The Town shall have the option, but not the obligation, to exercise any and all lawful, reasonable and proper control related to the location and route of all poles, stubs, guys, anchors, conduits, fiber and cables placed and constructed by the Licensee in the installation, construction and maintenance of its DAS Network in the Town. ARTICLE 13. CONSTRUCTION AND RESTORATION STANDARDS Prior to the performance of the initial construction and installation of the DAS Network, Licensee shall submit engineering plans to the Director for review and approval. The construction, installation, maintenance, repair and removal of Network Facilities shall be accomplished without cost or expense to the Town and shall be in accordance with the Town's Rights-of-Way Construction Ordinance and the Town s Engineering Design Criteria and Construction Standards Manual, as amended, and shall be accomplished in such manner as not to endanger persons or property or unreasonably obstruct access to, travel upon or other use of the specified public Rights-of-Way Prior to beginning any excavation or boring project on Public Rights-of-Way, Licensee shall comply with the provisions of the Texas One Call utility locator service at least forty-eight (48) hours in advance. Licensee has the responsibility to protect and support the various utility facilities of other providers during construction Licensee shall, at its own cost, after the installation, removal or relocation of its Network Facilities, repair and return the public Right-of-Way and any nearby or adjacent private property, if any, in which the Network Facilities are or have been located to a safe and satisfactory condition in accordance with the Town's Rights-of-Way Construction Ordinance and the Town s Engineering Design Criteria and Construction Standards Manual, as amended If Licensee installs an Underground Project, Licensee shall maintain membership, for the life of the Network Facilities, in the Texas One Call utility locator service for subsurface installations. Licensee shall field mark, at its sole expense, the locations of its underground Network Facilities in accordance with the recommendation of the Texas One Call utility locator service and the requirements of all applicable laws ATC shall be responsible for any damage to Town streets, existing utilities, curbs and sidewalks due to its installation, maintenance, repair or removal of its Network Facilities in the Public Right-of-Way, and shall repair, replace and restore in kind any such damage at its sole cost and expense in accordance with all applicable Town requirements The Town shall have the authority at any time to order and require Licensee to remove and abate any Network Facilities that are in violation of the Flower Mound Code. In A/

25 24 of 70 case Licensee, after receipt of written notice and a reasonable opportunity to cure, fails or refuses to comply, the Town shall have the authority to remove the same at the expense of Licensee, all without compensation or liability for damages to Licensee. ARTICLE 14. AS-BUILT MAPS AND RECORDS ATC shall maintain accurate maps and other appropriate records of its Network Facilities as they are actually constructed in the Rights-of-Way, including, for Underground Project, use of Auto CAD/GIS digital format. ARTICLE 15. REMOVAL AND RELOCATION OF NETWORK FACILITIES If ATC desires to remove or relocate its Network Facilities in the Rights-of-Way, it shall give the Town not less than ten (10) business days prior written notice of its intent to do so. Before proceeding with removal or relocation work, ATC shall obtain such additional permits as may be required by the Town and conform with all requirements of this License Agreement and the Town's Rights-of-Way Construction Ordinance and the Town s Engineering Design Criteria and Construction Standards Manual Licensee shall remove or relocate, without cost or expense to the Town, the Network Facilities it installs under this License Agreement if and when made necessary by (i) the construction, repair, relocation, or maintenance of a public improvement project in, on, under or about the Public Rights-of-Way; (ii) to protect or preserve the public health or safety; or (iii) where the Town affords Licensee a technically and financially reasonable alternative location for installation of Licensee s Network Facilities. The Town will notify Licensee as soon as reasonably possible after the requirement to remove or relocate Network Facilities becomes known, and will to the extent reasonably possible assist Licensee in finding substitute Rights-of- Way. Said removal or relocation shall be completed within ninety (90) days following written notification or such shorter period as the Town may reasonably direct in the case of an emergency. If Licensee fails to remove or relocate its Network Facilities within such period, the Town may cause the same to be done at the sole expense of ATC, and without liability to the Town. The Town will to the extent reasonably possible cooperate with Licensee to relocate its Network Facilities at minimal disruption to its services. Nothing in this section shall be construed as preventing the Licensee from recovering the cost of removal or relocation from a Third Party that makes the request for removal or relocation of utilities In the event that Licensee s DAS Network interferes with the Town s traffic lights, public safety radio system, or other Town communications infrastructure operating on a spectrum where the Town is legally authorized to operate, Licensee will respond to the Town s request to address the source of the interference within twenty-four (24) hours of receiving notice thereof. The protocol for responding to events of interference within twenty-four (24) hours will require Licensee to provide the Director an Interference Remediation Report that includes the following items: A/

26 25 of 70 interference; a. Remediation Plan. Devise a remediation plan to stop the event of b. Time Frame for Execution. Provide the expected time frame for execution of the remediation plan; and c. Additional Information. Include any additional information relevant to the execution of the remediation plan. In the event that interference cannot be eliminated, Licensee shall relocate or remove the Network Facilities that is the source of the interference as soon as possible, but in no event longer than the time period set out in Section 15.2 herein Any damage to the Public Rights-of-Way which is caused by Licensee and which occurs during the removal or relocation of Licensee s Network Facilities shall be promptly repaired or replaced at Licensee s sole expense. ARTICLE 16. INDEMNIFICATION ATC shall exercise due care to avoid any action that may cause damage to property of the Town or property of any other person or entity whose facilities occupy, abut or adjoin the Public Rights-of-Way Licensee covenants and agrees to FULLY INDEMNIFY, DEFEND and HOLD HARMLESS, the Town and the elected officials, employees, officers, directors, volunteers and representatives of the Town, individually and collectively( Indemnified Persons ), from and against any and all claims of Third Parties made upon the Town directly or indirectly arising out of, resulting from or related to Licensee s use of the Rights-of-Way or the rights granted to Licensee with respect to the Rights-of-Way or Licensee s exercise of its rights under this License Agreement or Licensee's activities under this License Agreement, including any acts or omissions or willful misconduct of Licensee, any agent, officer, director, representative, employee, consultant or subcontractor of Licensee, and their respective officers, agents employees, directors and representatives while in the exercise of the rights or performance of the duties under this License Agreement. Without limitation, the foregoing indemnity shall include and apply to any and all allegations, causes of action, demands, judgments, assessments, taxes, impositions, expenses, proceedings, liabilities, obligations, suits of any kind and nature, actions, claims (including without limitation claims of personal injury, environmental injury, bodily injury, sickness, disease, death, property damage, destruction, or other impairment), costs, damages, fees, liens, losses, expenses, penalties or fines (together with all reasonable attorney fees and court costs), except when such claim or harm arises solely from the mistakes, errors, omissions or negligence of Licensor or any other Indemnified Persons and without negligence or breach of contract by Licensee Licensee shall be liable to the Town for damages sustained by the Town and resulting from the acts and omissions of any contractor, subcontractor, or any party A/

27 26 of 70 involved directly or indirectly in the construction and installation of Licensee s DAS Network and under Licensee s direct control. Any act or omission of such party shall be considered an act or omission of the Licensee Promptly upon learning of any claim for which it seeks indemnification under this License Agreement, Licensor shall give written notice to ATC of the claim. ATC, as the indemnifying Party, shall bear the cost of and shall have the right to control the defense, the right to select counsel of its own choice, and the right to settle the claim. Licensor shall cooperate and assist ATC in investigating and defending against the claim. If ATC does not provide the indemnity and defense, or if ATC does not make diligent effort to settle the claim or provide for a defense, Licensor may assume control of the matter with counsel of its own choosing and either make a reasonable settlement of the claim or undertake a defense, all at Licensee s sole cost and expense Neither party will be liable to the other for any special, consequential or other indirect damages arising under this License Agreement. ARTICLE 17. INSURANCE Not later than the Effective Date of this License Agreement, and at all times thereafter when Licensee is occupying or using the Licensed Areas in any way, Licensee shall obtain and cause to be in full force and effect the following insurance: a. Commercial General Liability Insurance. This insurance, to be on the comprehensive form, shall protect the Licensee against any and all claims arising from injuries to members of the public or damage to property or others arising out of any act or omission of the Licensee, its agents, employees, or subcontractors, in connection with the Licensee s work in and about the Licensed Areas in connection with this License Agreement. In addition, this general liability insurance policy shall specifically insure the contractual liability of the Licensee assumed under the provisions for indemnifying the Town. More particularly, Licensee shall provide Commercial General Liability Insurance as follows: Bodily Injury/Property Damage: $1,000, per occurrence $1,000, aggregate To include: Premises/Operations Products/Completed Operations Independent Contractors Contractual Liability Personal & Advertising Injury Broad Form Property Damage Coverage must be written on an occurrence form. The General Aggregate shall apply on a per project basis. A/

28 27 of 70 b. Business Automobile Liability Insurance. This insurance, to be on the comprehensive form, shall protect the Licensee against any and all claims or injuries to members of the public and damage to property of others arising from the use of automobiles and trucks in connection with the Licensee s work in and about the Licensed Areas, and shall cover operation on or off the site of such work of all motor vehicles licensed for highway use, whether they are owned, non-owned, or hired by the Licensee. The policy shall include an "all states" endorsement. Liability limits for automobile liability insurance coverage shall be: Minimum Combined Bodily Injury and Property Damage Limit: $1,000,000 per occurrence; or Minimum Bodily Injury Limit: $500, per person, Minimum Property Damage: $500, per occurrence; and Uninsured Motorist: Statutory Limits. c. Workers Compensation and Employer's Liability Insurance. This insurance shall protect the Licensee against any and all claims brought under the Workers Compensation law for the State of Texas. It shall also protect the Licensee against claims for injury to, disease or death of workmen engaged in work in and about the Licensed Areas under this License Agreement which, for any reason, may not fall within the provisions of the Workmen's Compensation Act. Liability limits for this insurance shall be: Coverage A Statutory Coverage Coverage B Employer s Liability with minimum limits for bodily injury: (a) by accident $1,000, each accident (b) by disease, $1,000,000 per employee with a per policy aggregate of $1,000, d. Umbrella or Excess Liability Insurance. The Licensee shall effect and maintain an umbrella liability policy as follows: $5,000, combined single limit per occurrence $5,000, aggregate Licensee shall, at its own expense, procure and pay for and maintain throughout the period of this License Agreement the insurance coverage described herein-above written by companies approved by the State of Texas and acceptable to the Town of Flower Mound including by way of example and not limitation, commercial general liability, automobile liability, umbrella or excess liability and workers' compensation in forms and amounts satisfactory to Town within ten (10) days after execution of this License Agreement. The Town reserves the right to review the insurance requirements and to reasonably adjust insurance and limits when the Town determines that changes in statutory law, court decisions, or the claims history of the industry or the Licensee require adjustment of the coverage. A/

29 28 of All policies except workers compensation must name the Town and its officers, employees, board members, and elected representatives as additional insureds. A waiver of subrogation in favor of the Town and its officials, employees, and officers shall be contained in the Workers Compensation insurance policy. Licensee shall cause coverage for additional insureds to be incorporated into each insurance policy by endorsement with respect to claims arising out of Licensee s operations, activities and obligations under this License Agreement All policies shall require that the insurer will provide Licensor with at least thirty (30) days prior notice of any cancellation or non-renewal Licensee will provide Licensor with a certificate of insurance upon request or provide access to the online certificate of insurance request center available on Licensee s web site. Certificates must evidence that the policy described by the certificate is in full force and effect and that the policy satisfies each requirement of this License Agreement applicable to the policy. For purposes of this section, Town will accept certificates of self-insurance issued by the State of Texas or letters written by the Licensee in those instances where the State of Texas does not issue such letters, which provide the same coverage as required herein. However, for the Town to accept such letters the Licensee must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the Town, based on financial information requested by and furnished by the Town Licensee shall immediately advise the Town Attorney s Office of actual or potential litigation that may develop and affect an existing carrier's obligation to defend and indemnify This Article creates no right of recovery of an insurer against the Town. The required insurance policies shall protect the Licensee and the Town. The insurance shall be primary coverage for losses covered by the policies. ARTICLE 18. PERFORMANCE BOND Licensee shall obtain and maintain at its sole cost a corporate surety bond securing performance of its obligations and guaranteeing faithful adherence to the requirements of the License Agreement. The surety bond must be: a. in an amount not less than One Hundred Thousand Dollars ($100,000.00); b. issued by a surety company licensed to do business in the State of Texas and reasonably acceptable to the Town; and c. reasonably acceptable to the Town Attorney. A/

30 29 of The Licensee shall obtain this bond no later than the thirtieth (30 th ) day after the effective date of this License Agreement and prior to construction or installation of any Network Facilities in the Rights-of-Way The rights reserved to the Town under the bond are in addition to all other rights. No action, proceeding or exercise of a right regarding the bond shall affect the Town s rights to demand full and faithful performance under this License Agreement or limit the Licensee s liability for damages. ARTICLE 19. TREE TRIMMING The right, license, privilege and permission is hereby granted to the Licensee, its contractors and agents, to trim trees upon and overhanging the streets, avenues, highways, alleys, sidewalks and public places of the Town so as to prevent the branches of such trees from coming in contact with the aerial wires, fiber or cables of the Licensee, and when so directed by the Town, said trimming shall be done under the supervision and direction of the Town or of any Town official to whom said duties have been or may be delegated. ARTICLE 20. EMERGENCY NOTIFICATION TO ATC The ATC Operations Control Center shall be available to Town staff 24 hoursper-day, 7 days-per-week, regarding problems or complaints resulting from the Network Facilities. The Director may contact Licensee by telephone at a number which shall be provided by Licensee in conjunction with all permit applications. ARTICLE 21. NOTICES All notices permitted or required hereunder shall be in writing and shall be transmitted via certified United States mail, return receipt requested, or by private delivery service and shall be addressed as follows or to such different addresses as the Parties may from time to time designate by giving written notice to the other party of such change: If to the Town, to: Town of Flower Mound Attn: Doug Powell 2121 Cross Timbers Flower Mound, TX If to ATC Outdoor DAS, LLC, to: Notices shall be deemed effective upon receipt. ARTICLE 22. ASSIGNMENT The rights granted by this License Agreement inure to the benefit of Licensee and shall not be assigned, transferred, sold or disposed of, in whole or in part, by voluntary sale, merger, consolidation or otherwise by force or involuntary sale, without the expressed prior A/

31 30 of 70 written consent of the Town, which consent shall not be unreasonable withheld, delayed or conditioned Notwithstanding the provisions of Section 16.1, a transfer of this License Agreement may occur without Town approval in the following circumstance: (i) an assignment or transfer to entities that control, are controlled by, or are under common control with Licensee, or (ii) the acquisition of all or substantially all of Licensee s assets in the Flower Mound market by reason of a merger, acquisition or other business reorganization. In order to effect an assignment of this License Agreement as listed in (i) and (ii) above without Town approval, the Licensee must provide the Town Manager a Notice of Assumption at least thirty (30) days prior to the assignment which contractually binds the purchasing or acquiring party to meet all the obligations of this License Agreement Licensor acknowledges that Licensee s business plan includes leasing the capacity of its Network Facilities to Third Parties, often by long-term conveyances that extend for the entire useful life of the Network Facilities. Such long-term leases are agreed to be within the scope of Licensee s intended use and shall not be deemed assignments requiring Licensor s consent, provided that Licensee has delegated none of its obligations under this License Agreement to the lessee of the Network Facilities, and Licensor may continue to look solely to Licensee for performance hereunder Licensee may also assign this License Agreement, without Licensor's consent and without prior notice to Licensor, to an institutional mortgagee or lender providing financing to Licensee with respect to Licensee's DAS Network or Network Facilities in the event such institutional mortgagee or lender exercises its foreclosure right against Licensee and operates the DAS Network or Network Facilities; provided such institutional mortgagee or lender is capable of assuming all of the obligations of the Licensee under this License Agreement and further provided that any assignment will not be effective against Licensor unless and until written notice of such assignment and exercise of rights is provided to Licensor. ARTICLE 23. FUTURE CONTINGENCY Notwithstanding anything contained in this License Agreement to the contrary, in the event that this License Agreement, in whole or in part, is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, unlawful, or otherwise inapplicable, the Licensee and the Town shall meet and negotiate an amended License Agreement that is in compliance with the authority s decision or enactment and, unless explicitly prohibited, the amended License Agreement shall provide the Town with a level of compensation comparable to that set forth in this License Agreement. ARTICLE 24. MISCELLANEOUS Choice of Laws. This License Agreement shall be construed and enforced in accordance with the laws of the State of Texas without regard to the conflict of law provisions thereof. Exclusive venue shall be had in Denton County, Texas. A/

32 31 of Entire Agreement. This License Agreement, together with its attached exhibits, contains the entire understanding between the Parties with respect to the subject matter hereof. There are no representations, agreements or understanding (whether oral or written) between or among the Parties relating to the subject matter of this License Agreement which are not fully expressed herein. This License Agreement can be amended, supplemented, modified or changed only by a written document executed by both Parties Reservation of Rights by Parties. Except as specifically set forth herein to the contrary, the Town and ATC each reserve all rights under applicable state and federal law Authority. The signer of this License Agreement for the Licensee and the Town hereby represents and warrants that he or she has full authority to execute this License Agreement on behalf of the Licensee or the Town respectively Waiver. None of the material provisions of this License Agreement may be waived or modified except expressly in writing signed by the Licensee and Town, as authorized by Town Council. Failure of either party to require the performance of any term in this License Agreement or the waiver by either party of any breach thereof shall not prevent subsequent enforcement of this term and shall not be deemed a waiver of any subsequent breach Severability. If any clause or provision of the License Agreement is illegal, invalid, or unenforceable under present or future laws effective during the term of this License Agreement, then and in that event it is the intention of the parties hereto that the remainder of this License Agreement shall not be affected thereby, and it is also the intention of the parties that in lieu of each clause or provision of this License Agreement that is illegal, invalid, or unenforceable, there be added as part of this License Agreement a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable Captions. The captions contained in this License Agreement are for convenience of reference only and in no way limit or enlarge the terms and conditions of this License Agreement Third Party Beneficiaries. No person or entity shall be a third party beneficiary to this License Agreement or shall have any right or cause of action hereunder No Partnership. This License Agreement and the transactions and performances contemplated hereby shall not create any manner of partnership, joint venture or similar relationship between the Parties Attorneys Fees. If any action, suit or proceeding is brought by either Party hereunder to enforce this License Agreement or for failure to observe any of the covenants of this License Agreement or to vindicate or exercise any rights or remedies hereunder, the prevailing Party in such proceeding shall be entitled to recover from the other Party reasonable attorneys fees and other reasonable litigation costs (as determined by the court). A/

33 32 of 70 IN WITNESS WHEREOF the Parties have caused this License Agreement to be executed by their duly authorized representatives. TOWN OF FLOWER MOUND ATC OUTDOOR DAS, LLC By: By: Name: Melissa D. Northern Name: Title: Mayor, Town of Flower Mound Title: Date: Date: A/

34 33 of 70 TOWN COUNCIL MEETING AGENDA ITEM NO: 2 July 21, 2011 [ ] CONSENT ITEM [ ] REGULAR ITEM [ X ] WORK SESSION ITEM FROM: THROUGH: Kenneth Brooker, Chief of Police Harlan Jefferson, Town Manager PRESENTER: Kenneth Brooker, Chief of Police ITEM: Discuss an amendment to the Code of Ordinances, Chapter 2 Sections 2-202, 2-203, 2-204, and adding Section regarding revisions to the authority and organization of the Animal Services Board as requested by the members of the Animal Services Board. [ ] Ordinance [ ] Resolution [ ] Motion [ X ] Direction I. SUMMARY: The Animal Services Board has recommended amendments to several sections of Chapter 2 of the Code of Ordinances relative to the powers and duties of the Animal Services Board. II. BACKGROUND INFORMATION: The Animal Services Board was created by passage of Ordinance on July 16, 2001, due to the opening of a temporary Animal Shelter. The creation of the Animal Services Board was a requirement of Chapter 823 of the Texas Health and Safety Code. Animal Services had been provided by the Town since the mid 1980 s, but had contracted shelter services to local veterinarians prior to the opening of the temporary shelter. The number of Animal Services board members was increased by passage of Ordinance on July 22, 2002, to include one or two municipal officials to accommodate two council members who were actively involved in a board that was formed to design and make recommendations regarding the new Animal Adoption Center that was to be built and located at 3950 Justin Road. This Animal Adoption Center was completed and opened on March 11, Once the facility was completed and operating procedures for the permanent facility were in place, the Animal Services board was reduced to five members and the powers of the board were reduced to those required by Section 823 of the Texas Health and Safety Code by passage of Ordinance on November 19, The purpose of this reduction was the continual insistence by members of the board requesting submittal of ordinances or changes in the Adoption Center policies that were impractical, covered by state or federal laws, or would very likely have resulted in a substantial increase in the number of animals destroyed through euthanasia.

35 34 of 70 The current Animal Services Board passed and submitted a proposed ordinance amendment on May 31, 2011, at their regular meeting. This amendment would reinstate powers of the board to their former status, in addition to change the status of the Vice Chairman to an ex-officio capacity, thus eliminating her vote. The Animal Services Manager is the Town staff board member on the committee whose duties include the daily operation of the shelter. If this board member were not allowed a vote on the committee, the shelter would essentially be run and overseen by the board without the vote and insight of the Animal Services Manager. The proposed amendment to the ordinance would also require that the Animal Services Manager act as the staff support and liaison to the board and provide assistance to the board, as requested. It is common practice for requests such as this ordinance amendment to be presented to Council for discussion during the Town Council s January Strategic Planning Session with the Executive Staff which are generally designated for items such as ordinance revisions and similar issues. The Council has requested that staff recommended revisions to ordinances be presented during the Strategic Planning Session held in June. III. FISCAL IMPACT: NA IV. LEGAL REVIEW: Terry Welch of Brown & Hofmeister, LLP, has reviewed the proposed ordinance as to form and legality. V. ATTACHMENTS: 1. Benchmark City Survey Results 2. April 10, 2011 Animal Services Board meeting minutes 3. May 31, 2011 Animal Services Board meeting draft minutes 4. Ordinance Ordinance Ordinance Proposed Ordinance submitted by the Animal Services Board VI. RECOMMENDED MOTION OR ACTION: This item is submitted for review and discussion purposes only to seek the direction of the Council; therefore no action needs to be taken at this time.

36 35 of 70 Attachment 1 Survey Results Conducted by: Christine Hastings, Animal Services Manager Date Conducted: Week of July 11, 2011 Participants: Benchmark Survey Cities (15) for the Town of Flower Mound Location Shelter Boards Powers and Duties Allen Yes 1 State required board only. Assist the Animal Control Unit of the city in complying with the requirements of Chapter 823, Health and safety code, V.T.C.A. and other applicable state and local laws by submitting recommendations to the animal control unit. Carrollton Yes 0 No board at this time. Ordinance is being drafted for a board now that a new shelter has been built in June Draft of ordinance is similar to what the state requires and does not allow board to control policies and procedures of the shelter. Colleyville No 0 Colleyville uses a shelter in Hurst, Texas Coppell Yes 1 The appeals board provided herein shall also act as the animal advisory committee which shall meet as prescribed by state law in order to insure compliance with Chapter 823 (Animal Shelters), of the Texas Health and Safety Code, as amended. Denton Yes 1 It shall be the purpose of the animal shelter advisory committee to assist the city in complying with the requirements of the animal shelter act, V.T.C.A. health and Safety Code , and to make recommendations to the city council regarding methods and procedures necessary to ensure compliance with the Act. Frisco No 0 Frisco contracts with Collin County Shelter located in McKinney Grapevine Yes 0 Currently has no board but is currently working on creating a board using state law 823 for powers and duties. They do not have a separate ordinance describing the powers and duties of the board and only are using the State law and what it requires to dictate their powers and duties.

37 36 of 70 Irving Yes 1 The board may advise on policies but has no administrative authority. The committee has the responsibility to advise the staff and city council regarding policy matters pertaining to the animal services division. It has no administrative authority or responsibility. City staff will serve as a resource to the committee based upon time availability as determined by the director of public health and environmental services. Lewisville Yes 1 Per the City of Lewisville ordinance: (a) The committee will serve in an advisory capacity to the city council in matters pertaining to the animal shelter or animal control issues. (b) The committee shall assist the animal shelter in complying with the requirements of the state Animal Shelter Act. (c) The committee shall perform such other duties as the city council may prescribe by ordinance or resolution. McKinney No 1 McKinney contracts with Collin County. Collin County s animal shelter is located within McKinney. The city of McKinney does have an ordinance regarding an advisory board because the shelter is within the city limits. McKinney s ordinance states: (a) There is hereby created pursuant to V.T.C.A., Health and Safety Code, section , an animal service facility advisory committee. (b) The purpose of the committee shall be to assist animal shelters located in the city with compliance with chapter 823 of the Health and Safety Code. North Richland Hills Yes 1 Under NRH ordinance, letter (b) states: (b) Advisory capacity. The city council hereby clarifies its intent in creating said boards and commissions and states herein that the said boards and commissions are not intended to have judicial powers or quasi judicial powers nor rule making powers other than in an advisory capacity to the city council.

38 37 of 70 Plano Yes 1 The committee shall be advisory in nature and shall not have any responsibility or authority over any board, commission, public official or employee of the city. Plano s ordinance states: (1) To assist the Animal Services Division in complying with Chapter 823 and other state and local laws by submitting recommendations to the animal services division. (2) Submit an annual report to the city council no later than August of each year. The report shall describe the committee s recommendations, interaction, activities, and progress as related to its established purpose. Richardson Yes 1 Assist the Animal Services Division in complying with the requirements of Chapter 823 and other applicable state and local laws, by submitting recommendations to the Animal Services Division. The Commission shall be advisory in nature and shall not have any responsibility or authority over any board, commission, public official or employee of the city. Rowlett Yes 1 The board shall meet to discuss ideas that will help ensure the animal shelter is in compliance with the State Department of Health rules pertaining to animal shelters. The animal shelter board shall meet to make recommendations, for the betterment of the community, concerning operations, policies procedures, new programs, and the improvement of existing programs. The board may make recommendations only but have no authority to dictate policy, procedures or operations of the shelter or animal services. Southlake No 0 Contract with North Richland Hills Animal Adoption and Rescue Center.

39 38 of 70 FLOWER MOUND ANIMAL SERVICES BOARD WORK SESSION MEETING OF APRIL 19, THE FLOWER MOUND ANIMAL SERVICES BOARD WORK SESSION MEETING HELD ON THE 19 TH OF APRIL, 2011 IN THE FLOWER MOUND TOWN HALL, LOCATED AT 2121 CROSS TIMBERS ROAD IN THE TOWN OF FLOWER MOUND, COUNTY OF DENTON, TEXAS AT 6:30 P.M. Attachment 2 The Animal Services Board met in a regular session with the following members present: Cathy Mckaige Christine Hastings Mary O Meara John Harvey Steve Dixon Chair Vice Chair Member Member Member Constituting a quorum with the following member of the Town staff participating: Trae Malone Animal Services Officer A. CALL TO ORDER Chair Cathy Mckaige called the Animal Services Board meeting to order at 6:34 P.M. B. WORK SESSION ITEMS 1. Discuss and consider board packet resource materials from charter Animal Services Board meeting in 2002, relative to the following issues: Town Animal Services Ordinance, Texas Health and Safety Code, Texas Penal Code, and Flower Mound Animal Services Standard Operating Procedure (Chapter 1-8), and all matters incident and related thereto. Chair McKaige discussed with the board a packet of resource materials that was made available to her when she started on the board as a charter member. She would like to make sure that these resources are made available to current board members. Chair McKaige explained that it was beneficial that these resources are available on line so that we do not have bundles of paper. Member O Meara agreed that she liked the idea of having electronic copies available so that there is not an abundance of paper printed but that they will still have the resources available to use.

40 39 of 70 Chair McKaige discussed and requested that the Animal Services Board is kept updated on any new changes in the state and local laws in the way of an agenda item to be discussed by the board on regular meetings. Ms. McKaige mentioned that the Animal Adoption Center s Sop s are currently under revision and expressed interest in the board to provide their input. Vice-Chair Hastings stated that she is hoping to have the shelter s standard operating procedures completed by July. However, she will need to confirm that the board may provide input and she will address this issue at the next board meeting. Member O Meara asked if this was something that was updated on a server that could then be added as an attachment so she could have access to a true electronic copy rather than a scanned copy so that there is no additional work for Vice-Chair Hastings and more paper is not wasted with copies as well as less administrative cost. Member O Meara added that having links to some of the available information as well would be fabulous. Chair Mckaige suggested that a link to the information such as the updated laws would be helpful with an to notify members of the updates with a link. Vice-Chair Hastings notified the board that on the Animal Services website there is a links area where they can access the Texas Department of State Health Services that should bring you straight to the animal laws and all of the updates. She explained that the local ordinances are under the town s website and where to access those local laws. Chair Mckaige asked if the Animal Adoption Center s standard operating procedures are on the town s employee website server. Vice-Chair Hastings explained that the Sop s are on PowerDMS which is available to police employees to go and read any new information or policies affecting the Police Department and the staff sign off on the documents posted there that they have been read. Member Dixon asked if the updated dates are on the standard operating procedures to which Vice-Chair Hastings stated that they were. Member Dixon went on to explain two locations where the ordinances are available on-line. 2. Discuss and consider Animal Services Board (Town Ordinance No ), and the composition, powers and duties of the Board, frequency of meetings, past recommendations/projects undertaken by the Board, and the following events/activities: regular animal events & fundraising for medical fund. Board training; spay/neuter clinics; appropriate fees related thereto; effective volunteer program; micro chipping; statistics reporting, and all matters incident and related thereto. Chair McKaige explained to the board members, past changes in the board s structure from what the original duties of the board were compared to the changes made in Chair Mckaige also explained to the board past issues the board had discussed such as spay/neuter options. Member Harvey asked what the current failure rate of the shelter s spay and neuter program currently is. Vice- Chair Hastings explained that at last examination the shelter had a 98 percent success rate. She also explained that currently the shelter has seven dogs

41 40 of 70 available for adoption and currently only one of those dogs is not fixed. It was also explained that the shelter currently has 10 cats for adoption and only one of those cats is not fixed. Chair Mckaige suggested that the board may be able to partner with other boards to help come up with fundraisers or other opportunities for more spay and neuter funds in the form of grants or donations. Chair McKaige continued to explain more past items the board had discussed such as dog training at the shelter. McKaige believed that there was some training already going on at the Animal Adoption Center and asked Vice Chair Hastings to comment on that. Vice Chair Hastings explained that training videos and hand outs are available to adopters. She also explained that a few years back she set up a training program at the shelter called Transition Training to help dogs transition from shelter life to home life. However, although the shelter received positive feed back on the classes the heat got to be too much as there is no room inside the shelter to hold classes. The issue that the classes were free was discussed as a reason that some would not show up regularly to class because there was no investment motivating them to attend the class. Member O Meara explained that the Humane Society recently started a training program at a local business that just opened up with 6 trainers who rotate their services. There are a few sessions that are free to adopters and then there is a fee that is split between the trainers and the humane society. She explained that if this becomes a future topic than the board can look at what the Humane Society has done to see what works. Member O Meara also stated that if you charge a small fee, even if the money goes back into keeping the program running, it is of more value to those that take the class. Chair McKaige summarized by stating the possibility of having an update of what was going on in the boards and commission meetings and discussion about any potential partnering opportunities as well as a report from the Humane Society and what they have been busy with. Chair McKaige next went on to another past item that was discussed in the board meetings about charging various fees at the animal adoption shelter from registration or adoption fees and the surrounding issues with this. Chair McKaige did not feel in the past there were any issues with people adopting animals for no reason just because they were free and asked Vice Chair Hastings if this was still the case. Vice Chair Hastings explained that the shelter does get the occasional returns from the animals but that the shelter does try to be thorough when placing an animal. She did not feel that people were picking animals too quickly just because their free but their concern for charging a fee would be an increase in euthanasia. She explained that they do get people that come in wanting animals that are already sterilized, current on shots and possibly declawed so that they don t have to spend any extra money on the animal except for normal health care. Chair McKaige also brought up registration issues that could also be discussed in the future such as one year or three year as she knows entering registration creates a lot of administrative work and the board would be able to discuss this issue make a recommendation. Chair McKaige also discussed the studies that were done in the past when this issue was discussed and the research the board completed.

42 41 of 70 Chair McKaige next went on to explain to the board that in the past, the board had looked at the volunteer program and some of the issues with keeping volunteers. Chair McKaige asked Vice-Chair Hastings to discuss how the volunteer program is working right now. Vice-Chair Hastings explained that the shelter has about a dozen volunteers. Currently what the shelter is asking volunteers to do is to sign off on two assignments that they have completed before going to play with the animals. It is felt that by having the volunteers do just a small amount of work that they feel more important to the shelter and more needed. Member Harvey asked what the liability issues are at the shelter if they get bit or hurt while volunteering. Vice- Chair Hastings explained that the town does provide insurance to the volunteers to cover any injuries to them. It was also clarified that the town does have an age restriction on volunteers as well. Chair McKaige next explained past shelter statistics that were brought to the board meetings including, animals that were adopted, impounded, revenue, presentations that were made, wildlife calls, etc McKaige stated that these statistics are gathered completely manually to obtain, and that if this was discussed in the future that the board could help the shelter get tools to make it easier to obtain the information in the form of new software. Vice Chair Hastings explained that she has already researched new software programs that will most likely be purchased in the new budget year. She explained that she can get the board any statistics they want but clarification is needed as to what the board is specifically looking for. Member O Meara asked that if numbers are being asked for that they are being asked for because they are going to be used and not just to get numbers for the sake of getting numbers. Chair McKaige clarified that she feels that the numbers would be good to share with the public now that the meetings are being televised. She explained that Flower Mound is very neat and tidy and the public does not see the dead animals or the loose dogs and that the numbers would help to show the public what is going on and create more interest of visibility to Animal Services. Member O Meara stated that there could be positive ways to display the numbers such as making a slide to show how many animal the shelter adopted out last month and post it on FMTV or inside the shelter itself. Member Harvey stated that the numbers could help justify charging fees that would help keep the shelter afloat in case of budget cuts so that the shelter does not have to make cut backs in case of a budget deficit. Next, Chair McKaige brought of the idea of microchipping for something to board may be able to look at so that animals are microchipped before they leave the adoption center. Member Harvey expressed that he really liked that idea. He felt that micorchipping was something the staff could do easily but that it would also hold people accountable if the animal was chipped they may be less likely to throw the animal out the back door if it got too much for them because they would be on record as owning the animal. Chair McKaige believed this if this was an idea that was brought up in the future the board could make a recommendation about it and a small charge could be asked and a become a service that was also provided to the public.

43 42 of Discuss and consider the scope of participation of the Animal Services Board with other Town boards and commissions, and the quarterly Town meeting of Board and Commission chair/vice chairs, and the Work Topic Report from the last quarterly meeting; status of the proposed Dog Park; Town events; Town trail system and doggie cleanup stations; the posting of approved Animal Service Board minutes; and an Animal Services Board website, and all matters incident and related thereto. Chair McKaige explained to the board what was going on in the Board and Commission chair/vice chair meeting. Member O Meara asked if there were other town employees on these boards. Vice Chair Hastings responded that as far as she knew, she was the only one. Member O Meara voiced her concern that this may be something that should be addressed in the future as it seems to be an awkward position to be in. Chair McKaige explained that the state requires an animal control person be on the board with the current mandate that we have now. However, it was discussed in the Board and Commission chair/vice chair meeting that they are looking at possibly having two boards. One board that the state requires and having a separate board that was an advisory board. 4. Discuss and consider possible amendments, and applicable process for consideration of such amendments, to the Animal Services Board ordinance and draft a recommendation to the Town Council for the Animal Service Board s consideration and vote at the next regular Animal Services Board meeting, and all matters incident and related thereto. Chair McKaige explained that having a separate board in which Chair Hastings would be staff liaison instead of a member of the board would take her out of the political limelight and put her in the job of providing the information of guiding the board and asking for help of the board if she needs anything. Member O Meara brought up the idea of restructuring the way the current board is set up rather than having two boards. Chair McKaige explained that someone from Animal Services is required to be on the board, however, it was clarified that she does not have to be on the board in a leadership capacity as a chair or vice chair. Member O Meara voiced her concerns about a second board creating more bureaucracy. Chair McKaige stated that it may, but this current board doesn t do anything. She envisions that the regular board would meet at 6:30 and the new board would meet at 6:45 and that the members of it could be on both if they chose or only one. The only thing that would change is that Vice Chair Hastings would be a liaison only for the advisory board. Chair McKaige agreed that it would create double the agenda and double the minutes that would need to be completed. Member Harvey expressed his opinion that the second board would double the work with very little gain out of it. Chair McKaige believes it would take the politics out of Christine s position as apposed as being a liaison where she is responding to requests from the board and that its different when she is part of the

44 43 of 70 deliberating voting panel. The old board may work fine in terms of expanding it, Vice Chair Hastings would just not be in the chair/vice chair capacity. Member Harvey asked vice chair Hastings what her opinion was on the proposed changes. Vice Chair Hastings agreed with Member Harvey, that she did not feel there was a need to change. She agreed she is not sure what a second board would accomplish except as Member Harvey stated it would create more work for very little gain. She felt that after looking over the topics of the agenda from this meeting that there wasn t anything on there the current board could not discuss in its current set up. Member Dixon suggested that one thing the board could consider at the organizational structure is to keep it as one board but through the ordinance you can consider making Vice Chair Hastings position on the advisory an ex-officio role so that she is not voting. She would be a participant and voting member on things that have statutory regulations, but in an advisory role, she could be an ex-officio and could be designated that in the ordinance. Member Dixon does not feel the board needs to have a second board and that his suggestion should work. He feels it is the best thing to have town staff not be in an advisory capacity for this. Mary O Meara compared his idea to how the current council is now where the board members are sitting together and the Town s manager is separate and sitting in the side not as a board member. Chair McKaige felt that due the size of the board a few alternates should be requested so that a quorum is not an issue. Member Harvey agreed to the idea. Chair McKaige asked the board to consider how to structure a recommendation to take to council and suggested that it be voted on at the next regular meeting in May. Chair McKaige went over that the size of the board will stay the same but that two alternates would be requested and the animal control representative s role will be changed from being a voting member on legal members to being an ex-officio in advisory matters. She suggested leaving the wording in the original ordinance as is and keeping the number of meetings to three and the size of the board as is but adopt the wording as it was in the previous is. Chair McKaige stated that she would have this placed on the agenda to be voted on at the next Animal Services Board Meeting but requested clarification from Member Dixon as to the process to put this through. Member Dixon explained that the changes should go through staff to have the Town Attorney look at it and at that point the board would look at it and if approved then it would go to Town Council. Vice Chair Hastings expressed concern that if she s not a voting member on things but legal issues, she would still like to offer her opinion on other issues so that if there are ideas that come up that were already tried and didn t work she could have a chance to explain that. She would like the chance to offer input before an issue is voted on as she

45 44 of 70 does have experience with animals and could offer some information. Chair McKaige explained that Vice Chair Hastings would be a full member and the board would look to her for input because of her experience and that would be what her role would be and her input would be taken into account. Member Dixon also clarified that her role would be identical to what it is now except that she wouldn t vote. Member McKaige added that if the board wants and idea moved forward, it has to be carried by the staff liaison and that it can t be blocked. 5. Discuss and consider the following items for future agendas: Adoption Statistics, Trends, Issues; consideration of recommendations to Town Council for changes to the Animal Services Board ordinance; latest Animal Adoption Center inspection; and monthly water bill insert content (leash law; disaster preparation; registration; and other Board matters. No discussion was had on this item for future agenda items for the board meeting besides those that were discussed above. C. ADJOURNMENT The meeting was adjourned at 7:40 P.M. TOWN OF FLOWER MOUND, TEXAS Christine Hastings, Town Representative ATTEST: Trae Malone, Secretary

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