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Home My WebLink About05/28/2015 - Regular Agenda Packet - City CouncilCity Council Regular College Station, TX Meeting Agenda - Final City Hall 1101 Texas Ave College Station, TX 77840 City Hall Council Chambers7:00 PMThursday, May 28, 2015 1. Pledge of Allegiance, Invocation, Consider absence request. Presentation: • Presentation regarding Arts Council awarding a total of $10,000 in scholarship funds to 5 graduating seniors pursuing further education in the arts at the college level. Hear Visitors: A citizen may address the City Council on any item which does not appear on the posted Agenda. Registration forms are available in the lobby and at the desk of the City Secretary. This form should be completed and delivered to the City Secretary by 5:30 pm. Please limit remarks to three minutes. A timer alarm will sound after 2 1/2 minutes to signal thirty seconds remaining to conclude your remarks. The City Council will receive the information, ask staff to look into the matter, or place the issue on a future agenda. Topics of operational concerns shall be directed to the City Manager. Comments should not personally attack other speakers, Council or staff. Consent Agenda At the discretion of the Mayor, individuals may be allowed to speak on a Consent Agenda Item. Individuals who wish to address the City Council on a consent agenda item not posted as a public hearing shall register with the City Secretary prior to the Mayor's reading of the agenda item. Registration forms are available in the lobby and at the desk of the City Secretary. 2. Presentation, possible action and discussion of consent agenda items which consists of ministerial or "housekeeping" items required by law. Items may be removed from the consent agenda by majority vote of the Council. Presentation, possible action, and discussion of minutes for: · May 18, 2015 Workshop Minutes · May 18, 2015 Regular Minutes 15-02702a. Sponsors:Mashburn WKSHP051815 DRAFT Minutes.docx RM051815 DRAFT Minutes.docx Attachments: Presentation, possible action, and discussion regarding an annual agreement between City of College Station and Texas A&M University for Fitlife testing for Fire Fighters in the amount of $52,200. 15-02312b. Sponsors:Hurt Page 1 College Station, TX Printed on 5/22/2015 May 28, 2015City Council Regular Meeting Agenda - Final Fitlife Agreement.pdfAttachments: Presentation, possible action and discussion regarding construction contract 15-200 with Brazos Paving, Inc ., in the amount of $478,339.25 for the extension of Eisenhower Street from Ash Street to Lincoln Avenue. 15-02392c. Sponsors:Harmon 15-040 Bid Tabulation.pdf Project Location Map - Eisenhower Street Extension (8.5x11).pdf Attachments: Presentation, possible action, and discussion on consideration of an ordinance amending Chapter 10, “Traffic Code,” Section 2(K) of the Code of Ordinances of the City of College Station to prohibit right turns on red from southbound Texas Avenue to westbound University Drive. 15-02402d. Sponsors:Harmon Right-Turn on Red Ordinance - SB Texas @ University Drive.docAttachments: Presentation, possible action and discussion regarding a professional services contract (contract number 15300244) with Kimley-Horn and Associates, Inc. in the amount of $405,900 for the professional engineering services related to the design of the first two phases of the Francis Drive Rehabilitation Project. 15-02412e. Sponsors:Harmon Francis Drive Project Location.pdfAttachments: Presentation, possible action, and discussion regarding approval of a Resolution establishing a Joint Annexation Task Force to update the timing, priorities, and phasing of future annexations. 15-02452f. Sponsors:Simms Resolution.pdfAttachments: Presentation, possible action, and discussion on the second reading of a non-exclusive Pipeline Franchise Ordinance for Oil and Gas Operations with Halc ón Field Services, LLC to construct, operate, maintain, remove, replace, and repair pipeline facilities, together with equipment and appurtenances thereto, for the transportation of petroleum products and byproducts. 15-02472g. Sponsors:Gibbs Pipeline Franchise OrdinanceAttachments: Presentation, possible action, and discussion on an interlocal agreement (ILA) with Brazos County and the City of Bryan to apply 15-02552h. Page 2 College Station, TX Printed on 5/22/2015 May 28, 2015City Council Regular Meeting Agenda - Final and accept a U.S. Department of Justice, 2015 Justice Assistance Grant (JAG). Sponsors:Norris ILA - 2015 Byrne Memorial JAG Award.docxAttachments: Presentation, possible action, and discussion concerning the adoption of a resolution of the City Council of the City of College Station, Texas, approving a negotiated settlement between the Atmos Cities Steering Committee (“ACSC”) and Atmos Energy Corp., Mid-Tex Division, regarding the Company ’s 2014 and 2015 rate review mechanism filings and approving a settlement agreement with attached rate tariffs and proof of revenues. 15-02602i. Sponsors:Nettles Resolution accepting Settlement 05 28 15.doc Attachments to Resolution.PDF Staff Report for Resolution 05 28 15.doc Attachments: Presentation, possible action, and discussion regarding construction contract 15-109 with Kieschnick General Contractors, Inc., in the amount of $3,187,342 for a hike and bike trail from Creek View Park to Lick Creek Park. 15-02672j. Sponsors:Harmon Lick Creek Hike & Bike Trail - Project Location Map.pdf Bid Tab.pdf Attachments: Presentation, possible action and discussion on a license agreement and pole attachment agreement with ExteNet for the installation and operation of a Distributed Antenna System (DAS). 15-02622k. Sponsors:Nettles College Station DAS System License Agreement-ExteNet_Final_5-19-2015.pdf College Station Pole Attachment License Agreement-ExteNet_Final_5-19-2015.pdf Attachments: Regular Agenda At the discretion of the Mayor, individuals may be allowed to speak on a Regular Agenda Item. Individuals who wish to address the City Council on a regular agenda item not posted as a public hearing shall register with the City Secretary prior to the Mayor's reading of the agenda item. Registration forms are available in the lobby and at the desk of the City Secretary. Individuals who wish to address the City Council on an item posted as a public hearing shall register with the City Secretary prior to the Mayor's announcement to open the public hearing.· The Mayor will recognize individuals who wish to come forward to Page 3 College Station, TX Printed on 5/22/2015 May 28, 2015City Council Regular Meeting Agenda - Final speak for or against the item. The speaker will state their name and address for the record and allowed three minutes. A timer alarm will sound at 2 1/2 minutes to signal thirty seconds remaining to conclude remarks. After a public hearing is closed, there shall be no additional public comments. If Council needs additional information from the general public, some limited comments may be allowed at the discretion of the Mayor. If an individual does not wish to address the City Council, but still wishes to be recorded in the official minutes as being in support or opposition to an agenda item, the individual may complete the registration form provided in the lobby by providing the name, address, and comments about a city related subject. These comments will be referred to the City Council and City Manager. Public hearing, presentation, possible action, and discussion regarding an ordinance amending Chapter 12, "Unified Development Ordinance," Section 12-4.2, "Official Zoning Map," of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundaries from E Estate to RS Restricted Suburban for approximately 63 acres being specifically Robert Stevenson League, Abstract Number 54, College Station, Brazos County, Texas, said tract being the remainder of a called 101.322 acre tract of land as described by a surface exchange deed to Esther Jane Grant McDougal recorded in Volume 4027, Page 29 of the Official Public Records of Brazos County, Texas, generally located at 3590 Greens Prairie Road West, more generally located north of Greens Prairie Road West and west of the Castlegate II Subdivision. Case #15-00900069 (J Bullock) 15-02531. Background Information Aerial & Small Area Map (SAM) Ordinance Attachments: Public hearing, presentation, possible action, and discussion regarding an ordinance amending Chapter 12, "Unified Development Ordinance," Article 2, “Development Review Bodies,” and Article 7, “General Development Standards,” of the Code of Ordinances of the City of College Station, Texas by revising the Non-Residential Architectural Standards and related standards and processes. 15-02542. Sponsors:Schubert Summary of Changes Legistar NRA Revisions 5-28-15.docx Legistar NRA Revisions 5-28-15.docx Attachments: Presentation, possible action, and discussion regarding the 15-02463. Page 4 College Station, TX Printed on 5/22/2015 City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0270 Name:Minutes Status:Type:Minutes Consent Agenda File created:In control:5/20/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action, and discussion of minutes for: ·May 18, 2015 Workshop Minutes ·May 18, 2015 Regular Minutes Sponsors:Sherry Mashburn Indexes: Code sections: Attachments:WKSHP051815 DRAFT Minutes.pdf RM051815 DRAFT Minutes.pdf Action ByDate Action ResultVer. Presentation, possible action, and discussion of minutes for: · May 18, 2015 Workshop Minutes · May 18, 2015 Regular Minutes Relationship to Strategic Goals: ·Good Governance Recommendation(s): Approval Summary: None Budget & Financial Summary: None Attachments: ·May 18, 2015 Workshop Minutes · May 18, 2015 Regular Minutes College Station, TX Printed on 5/22/2015Page 1 of 1 powered by Legistar™ WKSHP051815Minutes Page 1 MINUTES OF THE CITY COUNCIL WORKSHOP CITY OF COLLEGE STATION MAY 18, 2015 STATE OF TEXAS § § COUNTY OF BRAZOS § Present: Nancy Berry, Mayor Council: Blanche Brick Steve Aldrich Karl Mooney John Nichols Julie Schultz James Benham City Staff: Kelly Templin, City Manager Chuck Gilman, Deputy City Manager Carla Robinson, City Attorney Tanya McNutt, Deputy City Secretary Ian Whittenton, Records Management Coordinator 1. Call to Order and Announce a Quorum is Present With a quorum present, the Workshop of the College Station City Council was called to order by Mayor Berry at 4:32 p.m. on Monday, May 18, 2015 in the Council Chambers of the City of College Station City Hall, 1101 Texas Avenue, College Station, Texas 77840. 2. Executive Session In accordance with the Texas Government Code §551.071-Consultation with Attorney, the College Station City Council convened into Executive Session at 4:32 p.m. on Monday, May 18, 2015 in order to continue discussing matters pertaining to: A. Consultation with Attorney to seek advice regarding pending or contemplated litigation; to wit:  Deluxe Burger Bar of College Station, Inc. D/B/A Café Eccell v. Asset Plus Realty Corporation, City of College Station, Texas and the Research Valley Partnership, Inc., Cause No. 13 002978 CV 361, In the 361st Judicial District Court, Brazos County, Texas WKSHP051815Minutes Page 2  Margaret L. Cannon v. Deputy Melvin Bowser, Officer Bobby Williams, Officer Tristan Lopez, Mr. Mike Formicella, Ms. Connie Spence, Cause No. 13 002189 CV 272, In the 272nd District Court of Brazos County, Texas  Bobby Trant v. BVSWMA, Inc., Cause No. 33014, In the District Court, Grimes County, Texas, 12th Judicial District  Juliao v. City of College Station, Cause No. 14-002168-CV-272, in the 272nd District Court of Brazos County, Texas  City of College Station, Texas, v. Embrace Brazos Valley, Inc., Cause No. 15-000804- CV-85, In the 85th Judicial District Court, Brazos County, Texas. The Executive Session adjourned at 5:35 p.m. 3. Take action, if any, on Executive Session. No action was required from Executive Session. 4. Presentation, possible action, and discussion on items listed on the consent agenda. Items 2b, 2c, and 2i were pulled for clarification. (2b): Donald Harmon, Director of Public Works, explained the conceptual design process for the library and the opportunity for public input in the process. (2c): Donald Harmon, Director of Public Works, clarified the phases of the project and the efforts to coordinate construction with the community. Jeff Kersten, Assistant City Manager, clarified the option of using the bond funds currently assigned to this project for other transportation projects. (2i): Alan Gibbs, City Engineer, clarified the purpose of the proposed pipeline. 5. Presentation, possible action, and discussion concerning the City Internal Auditor’s Delinquent Accounts Audit. Ty Elliott, Internal Auditor, reported on the findings of the audit. Utility Customer Services is effective in collecting, managing, and writing-off delinquent accounts. However, he also found that the current procedures could be made more efficient and that policies and procedures are not always consistently applied. The city's collections agency appears to be well managed, and the majority of delinquent accounts are properly on file with the collections agency, but he found that payment dates often do not reconcile between the city's records and the collection agency's records. The current write-off policies and procedures have control deficiencies, and could use stronger controls, and some financial records are being completely deleted from the system. Staff recommends that policies and procedures should be updated to increase efficiency and eliminate procedural gaps; controls for the collections and write-off process could be WKSHP051815Minutes Page 3 strengthened; and the City should not delete the financial records of customers who still owe the city money. 6. Presentation, possible action and discussion on a license agreement with ExteNet for the installation and operation of a Distributed Antenna System (DAS). Aubrey Nettles, Special Projects Coordinator, provided information to the council about a draft license agreement and pole attachment agreement was developed to allow ExteNet, utilization of City right-of-way and open space existing utility poles or street light poles in order to accommodate their infrastructure. Alan Gibbs, City Engineer, explained that a Distributed Antenna System is a network of spatially separated antenna nodes connected to a common source to provide wireless service within a geographic area. These antennas are usually connected to existing utility poles, and require additional ground-mounted infrastructure to support the operation of the antenna. Bebb Francis, Outside Counsel for ExteNet Systems, provided information about the technology, terminology, need for DAS, and the ability of these systems to address network capacity issues. Joe Milone, Regional Director for External Relations, ExteNet Systems, addressed questions on the possibility of leasing conduit from the City and the feasibly of overbuilding for future connectivity and leaseback. Tony Michalsky, Assistant Director Electric Utility, gave information on the potential design possibilities and aesthetic options for DAS. 7. Council Calendar Council reviewed the calendar. 8. Presentation, possible action, and discussion on future agenda items: a Councilmember may inquire about a subject for which notice has not been given. A statement of specific factual information or the recitation of existing policy may be given. Any deliberation shall be limited to a proposal to place the subject on an agenda for a subsequent meeting. There were no future agenda items. 9. Discussion, review and possible action regarding the following meetings: Animal Shelter Board, Arts Council of Brazos Valley, Arts Council Sub-committee, Audit Committee, Bicycle, Pedestrian, and Greenways Advisory Board, Bio-Corridor Board of Adjustments, Blinn College Brazos Valley Advisory Committee, Brazos County Health Dept., Brazos Valley Council of Governments, Bryan/College Station Chamber of Commerce, Budget and Finance Committee, BVSWMA, BVWACS, Compensation and Benefits Committee, Convention & Visitors Bureau, Design Review Board, Economic Development Committee, Gigabit Broadband Initiative, Historic Preservation Committee, Interfaith Dialogue Association, Intergovernmental Committee, Joint Relief Funding Review Committee, WKSHP051815Minutes Page 4 Landmark Commission, Library Board, Metropolitan Planning Organization, Parks and Recreation Board, Planning and Zoning Commission, Research Valley Partnership, Research Valley Technology Council, Regional Transportation Committee for Council of Governments, Transportation and Mobility Committee, TAMU Student Senate, Texas Municipal League, Twin City Endowment, Youth Advisory Council, Zoning Board of Adjustments. Councilmember Mooney reported on the Intergovernmental Committee. Councilmember Nichols reported on the Arts Council of Brazos Valley and a ribbon cutting for a new exhibit by artist George Tobolowsky. Councilmember Brick reported on the Bicycle, Pedestrian, and Greenways Advisory Board. Councilmember Brick reported on her attendance to the 28th Annual Law Enforcement Memorial Service. Councilmember Aldrich reported on his attendance to the Legislative Affairs meeting. Mayor Berry reported on a trip to Washington D.C. with the Bryan/College Station Chamber of Commerce. 10. Adjournment MOTION: There being no further business, Mayor Berry adjourned the workshop of the College Station City Council at 6:47 p.m. on Monday, May 18, 2015. ________________________ Nancy Berry, Mayor ATTEST: _______________________ Sherry Mashburn, City Secretary RM051815 Minutes Page 1 MINUTES OF THE REGULAR CITY COUNCIL MEETING CITY OF COLLEGE STATION MAY 18, 2015 STATE OF TEXAS § § COUNTY OF BRAZOS § Present: Nancy Berry, Mayor Council: Blanche Brick Steve Aldrich Karl Mooney John Nichols Julie Schultz James Benham City Staff: Kelly Templin, City Manager Carla Robinson, City Attorney Chuck Gilman, Deputy City Manager Sherry Mashburn, City Secretary Ian Whittenton, records Management Coordinator Call to Order and Announce a Quorum is Present With a quorum present, the Regular Meeting of the College Station City Council was called t o order by Mayor Berry at 7:00 p.m. on Monday, May 18, 2015 in the Council Chambers of the City of College Station City Hall, 1101 Texas Avenue, College Station, Texas 77840. 1. Pledge of Allegiance, Invocation, consider absence request. Proclamation designating APWA National Public Works Week Mayor Berry presented a proclamation to the Director of Public Works, Donald Harmon and Assistant Directors Peter Caler and Emily Fisher as representatives of the College Station Public Works Department, proclaiming May 17-23, 2015 as APWA National Public Works Week. Proclamation designating May as National Bike Month. Mayor Berry presented a proclamation to Councilmember Brick as a representative of the Bicycle, Pedestrian and Greenway Committee, proclaiming May as National Bike Month. Recognition of College Station High School’s first graduating class. RM051815 Minutes Page 2 Mayor Berry presented a proclamation to graduates and staff of College Station High School recognizing the first graduating class of College Station High School. Citizen Comments Ben Roper, 5449 Prairie Dawn Ct., came before Council to honor the service and sacrifice of Sgt. Daniel Methvin. CONSENT AGENDA 2a. Presentation, possible action, and discussion of minutes for:  April 23, 2015 Workshop  April 23, 2015 Regular Council Meeting 2b. Presentation, possible action, and discussion regarding the approval of a contract number 15-010 with Komatsu Architecture in the amount of $106,800 for the programming and conceptual design for the Larry J. Ringer Library Expansion project and approval of Resolution 05-18-15-2b, declaring intention to reimburse certain expenditures with proceeds from debt. 2c. Presentation, possible action, and discussion regarding construction contract 15-109 with Kieschnick General Contractors, Inc., in the amount of $3,187,342 for a hike and bike trail from Creek View Park to Lick Creek Park. 2d. Presentation, possible action, and discussion regarding the award of Bid 15-037 between the City of College Station and S.D.P. Manufacturing, in the amount of $166,753 for the purchase of a Track Mounted Mini Digger. 2e. Presentation, possible action, and discussion on a bid award for the annual agreement for electric meters and sockets, to be stored in inventory, as follows: Priester -Mell & Nicholson: $122,179; Summit Electric Supply: $25,292.60; Texas Electric Cooperatives: $9,714; HD Supply: $37,576.90. Total estimated annual expenditure is $194,762.50. 2f. Presentation, possible action and discussion on approving annual water meter purchases from Aqua Metric Sales Company through the Houston-Galveston Area Council (HGAC) contract (#WM08-14). Based on the attached contract unit pricing, the estimated annual expenditure for water meters is: $315,199.06. 2g. Presentation, possible action, and discussion on a bid award for the annual agreement for various electrical items to be stored in inventory as follows: Hill Country Electric Supply: $26,600; Wesco: $8,242.50; Stuart C. Irby: $10,378; Texas Electric Cooperatives: $64,584.64; Techline: $232,214.50; KBS Electrical Distribution: $42,624.70; Priester-Mell & Nicholson: $36,000. Total estimated annual expenditure is $420,644.34. 2h. Presentation, possible action, and discussion regarding approval of the Brazos V alley Wide Area Communications System (BVWACS) Operating Budget for FY 16 and authorizing the City’s quarterly payments of approximately $50,567.50 for an annual total RM051815 Minutes Page 3 of $202,270; and approval of the BVWACS Capital Equipment Replacement Reserve Fund Budget for FY 16 and payment of the City’s share in the amount of $96,047.61. 2i. Presentation, possible action, and discussion on the first of two readings of a non - exclusive Pipeline Franchise Ordinance for Oil and Gas Operations with Halcón Field Services, LLC to construct, operate, maintain, remove, replace, and repair pipeline facilities, together with equipment and appurtenances thereto, for the transportation of petroleum products and byproducts. Items 2c and 2h were pulled for a separate vote. MOTION: Upon a motion made by Councilmember Nichols and a second by Councilmember Mooney, the City Council voted seven (7) for and none (0) opposed, to approve the Consent Agenda, less items 2c and 2h. The motion carried unanimously. (2c) MOTION: Upon a motion made by Councilmember Benham and a second by Councilmember Aldrich, to deny approval of the construction contract 15-109 with Kieschnick General Contractors, Inc., in the amount of $3,187,342 for a hike and bike trail from Creek View Park to Lick Creek Park. (2c) MOTION: Upon a motion made by Councilmember Berry and a second by Councilmember Brick, the City Council voted five (5) for and two (2) opposed, to amend the pending motion to postpone the construction contract 15-109 with Kieschnick General Contractors, Inc., in the amount of $3,187,342 for a hike and bike trail from Creek View Park to Lick Creek Park. to the May 28 City Council Meeting. The motion carried with Councilmembers Nichols and Aldrich voting against. (2h) MOTION: Upon a motion made by Councilmember Benham and a second by Councilmember Berry, the City Council voted seven (7) for and none (0) opposed, to approve the Brazos Valley Wide Area Communications System (BVWACS) Operating Budget for FY 16 and authorizing the City’s quarterly payments of approximately $50,567.50 for an annual total of $202,270; and approval of the BVWACS Capital Equipment Replacement Reserve Fund Budget for FY 16 and payment of the City’s share in the amount of $96,047.61. The motion carried unanimously. REGULAR AGENDA 1. Public Hearing, presentation, possible action, and discussion adopting the Standard of Care Ordinance 2015-3656, to comply with the exemption for child care licensing under Section 42.041 (b)(14) Texas Human Resources Code. David Schmitz, Director of Parks and Recreation, reported that the Department of Human Services and Department of Protective and Regulatory Services passed updated legislation specifically regarding the regulation of certain facilities, homes, and agencies that provide child- care services. According to Section 42.041, the services provided by the Parks and Recreation RM051815 Minutes Page 4 Department meet all exemptions to this legislation. However, our compliance must be evidenced through an approved Standard of Care Ordinance. Staff recommends adoption of the ordinance. At approximately 7:40 p.m., Mayor Berry opened the Public Hearing. There being no comments, the Public Hearing was closed at 7:40 p.m. MOTION: Upon a motion made by Councilmember Mooney and a second by Councilmember Nichols, the City Council voted seven (7) for and none (0) opposed to adopt the Standard of Care Ordinance 2015-3656, to comply with the exemption for child care licensing under Section 42.041 (b)(14) Texas Human Resources Code. The motion carried unanimously. 2. Public Hearing, presentation, possible action, and discussion regarding Ordinance 2015- 3657, amending the Comprehensive Plan - Future Land Use & Character Map from Suburban Commercial to General Commercial for approximately two acres located at 3751 Rock Prairie Road West, and more generally located at the southwest corner of Rock Prairie Road West and Holleman Drive South. Jessica Bullock, Planning and Development, reported that the applicant has requested the proposed amendment to General Commercial from Suburban Commercial as a step toward permitting a convenience store with fuel sales on approximately two acres located at the southeast corner of Holleman Drive South and Rock Prairie Road West. The Planning and Zoning Commission considered this item on April 16, 2015 and voted 5-0 to recommend denial. Staff also recommends denial of the proposed amendment to the Future Land Use & Character Map. At approximately 7:48 p.m., Mayor Berry opened the Public Hearing. Rabon Metcalf, RME Engineering, spoke on behalf of the developer in favor allowing this development to move forward with the preference being to pass regular item 3 to allow the development to move forward. There being no further comments, the Public Hearing was closed at 8:00 p.m. MOTION: Upon a motion made by Councilmember Mooney and a second by Councilmember Nichols, the City Council voted seven (7) for and none (0) opposed, to deny Ordinance 2015- 3657 amending the Comprehensive Plan - Future Land Use & Character Map from Suburban Commercial to General Commercial for approximately two acres located at 3751 Rock Prairie Road West, and more generally located at the southwest corner of Rock Prairie Road West and Holleman Drive South. The motion carried unanimously. 3. Public Hearing, presentation, possible action, and discussion regarding Ordinance 2015- 3658, amending Chapter 12, "Unified Development Ordinance," Section 12-4.2, "Official Zoning Map," of the Code of Ordinances of the City of College Station, Texas by changing RM051815 Minutes Page 5 the zoning district boundaries from SC Suburban Commercial to PDD Planned Development District for approximately two acres being a portion of Lot 1, Block 1, Jackson Estates, Phase One, according to the plat recorded in volume 9762, page 159 of the official public records of Brazos County, Texas and being the same tract of land as described by a deed to the JH Driving Range, LLC recorded in volume 9816, page 120 of the official public records of Brazos County, Texas, generally located at 3751 Rock Prairie Road West, more generally located at the southwest corner of Rock Prairie Road West and Holleman Drive South. Jessica Bullock, Planning and Development, reported that the applicant has requested a PDD Planned Development District zoning on approximately two acres located at the southwest corner of Holleman Drive South and Rock Prairie Road West. The PDD, with a base zoning district of GC General Commercial, includes an approximate 8,000 square foot building with associated fuel sales. The Planning and Zoning Commission considered this item on April 16th and voted 4 -1 to approve the rezoning request. Staff recommends denial. At approximately 8:06 p.m., Mayor Berry opened the Public Hearing. There being no comments, the Public Hearing was closed at 8:06 p.m. At approximately 8:09 p.m., Mayor Berry reopened the Public Hearing. Luke Marnel, wanted to inform council of a similar development close to this one that he feels will be larger and provided more services. There being no comments, the Public Hearing was closed at 8:10 p.m. MOTION: Upon a motion made by Councilmember Mooney and a second by Councilmember Benham, the City Council voted seven (7) for and none (0) opposed, to approve Ordinance 2015- 3658, amending Chapter 12, "Unified Development Ordinance," Section 12-4.2, "Official Zoning Map," of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundaries from SC Suburban Commercial to PDD Planned Development District for approximately two acres being a portion of Lot 1, Block 1, Jackson Estates, Phase One, according to the plat recorded in volume 9762, page 159 of the official public records of Brazos County, Texas and being the same tract of land as described by a deed to the JH Driving Range, LLC recorded in volume 9816, page 120 of the official public records of Brazos County, Texas, generally located at 3751 Rock Prairie Road West, more generally located at the southwest corner of Rock Prairie Road West and Holleman Drive South. The motion carried unanimously. 4. Public Hearing, presentation, possible action, and discussion regarding Ordinance 2015- 3659, amending Chapter 12, "Unified Development Ordinance," Section 12-4.2, "Official Zoning Map," of the Code of Ordinances of the City of College Station, Texas, by changing the zoning district boundaries from GS General Suburban to GC General Commercial for approximately 0.75 acres for the property being situated in the Morgan Rector League, Abstract No.46, College Station, Brazos County, Texas. Being a portion of a tract of land RM051815 Minutes Page 6 called 2.460 acres as described by a deed to Brazos Valley Decorative Center, LLC Recorded in Volume 12387, Page 287 of the Official Public Records of Brazos County, Texas, generally located near the northeast corner of Texas Avenue South and Krenek Tap Road. Mark Bombeck, Planning and Development, reported that the applicant has requested a General Commercial zoning on approximately 0.75 acres located at the northeast corner of Texas Avenue South and Krenek Tap Road. The Planning and Zoning Commission considered this item on April 16th and voted 5 -0 to approve the rezoning request. Staff also recommends approval. At approximately 8:12 p.m., Mayor Berry opened the Public Hearing. There being no comments, the Public Hearing was closed at 8:12 p.m. MOTION: Upon a motion made by Councilmember Shultz and a second by Councilmember Benham, the City Council voted seven (7) for and none (0) opposed, to approve Ordinance 2015- 3659, amending Chapter 12, "Unified Development Ordinance," Section 12-4.2, "Official Zoning Map," of the Code of Ordinances of the City of College Station, Texas, by changing the zoning district boundaries from GS General Suburban to GC General Commercial for approximately 0.75 acres for the property being situated in the Morgan Rector League, Abstract No.46, College Station, Brazos County, Texas. Being a portion of a tract of land called 2.460 acres as described by a deed to Brazos Valley Decorative Center, LLC Recorded in Volume 12387, Page 287 of the Official Public Records of Brazos County, Texas, generally located near the northeast corner of Texas Avenue South and Krenek Tap Road. The motion carried unanimously. 5. Presentation, possible action and discussion regarding appointments to the following boards and commissions: · Historic Preservation Committee Council reviewed the applications and appointed Edelmiro Escamillia and Annette Naylor to fill the two unexpired terms, replacing David Higginson and Jeremy Nichols. 6. Adjournment. MOTION: There being no further business, Mayor Berry adjourned the Regular Meeting of the City Council at 8:16 p.m. on Monday, May 18, 2015. ________________________ Nancy Berry, Mayor ATTEST: ___________________________ RM051815 Minutes Page 7 Sherry Mashburn, City Secretary City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0231 Name:Annual Fit Life Agreement 2015 Status:Type:Agreement Consent Agenda File created:In control:5/5/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action, and discussion regarding an annual agreement between City of College Station and Texas A&M University for Fitlife testing for Fire Fighters in the amount of $52,200. Sponsors:Eric Hurt Indexes: Code sections: Attachments:Fitlife Agreement.pdf Action ByDate Action ResultVer. Presentation, possible action, and discussion regarding an annual agreement between City of College Station and Texas A&M University for Fitlife testing for Fire Fighters in the amount of $52,200. Relationship to Strategic Goals: ·Core Services and Infrastructure Recommendation(s): Staff recommends approval of this agreement with Texas A&M University. Summary: Annually the Fire Department conducts a thorough medical evaluation of all uniform personnel to ensure that no serious medical conditions exist that would make it unsafe for them provide services as a fire fighter. This testing in the past has found serious health problems that could have resulted in the death or incapacitation of a fire fighter while performing strenuous duties. This proactive testing has saved lives in past years. The testing is comprehensive involving many aspects of health and wellness. Testing includes blood work, chest X-rays, a maximal graded cardiac stress test, strength and conditioning evaluations, bone density scans and spirometry testing. Budget & Financial Summary: Funds are currently budgeted in the Fire Department budget. Attachments: Copy of Sponsored Services Agreement College Station, TX Printed on 5/22/2015Page 1 of 1 powered by Legistar™ THE TEXAS A&M UNIVERSITY SYSTEJ\I Office of Sponsored Research Services April 14, 2015 College Station, City of C/o Mr. Jon Miles, Assistant Fire Chief 300 Krenek Tap Road College Station, TX 77840 Dear Mr. Miles, Project title: The City of College Station Fire Department Cardiovascular Health Proflies-2015. For your review and signature are (2) original copies of partially executed Agreement between Texas A&M University System and College Station, City of. Please return the signed document at your earliest convenience to Sponsored Research Services at srsawardsuspense@tamus.edu for further processing and electronic copy will suffice for our records. If you have any questions or need anything additional please contact Marcie Avery at 979-862- 6451 or via email at mavery@tamus.edu Thank you, ~W,.~,O~Ws~rtun;• Sponsored Research Services rosea revalo@ta mus.ed u 3578 TAMU I College Station, TX 77845-4375 TEL. 979.458.4362 I FAX 979.862.3250 THE TEXAS A&M UNIVERSITY SYSTEM 400 Harvey Mitchell Parkway South, Suite 300 •College Station, Texas 77845-4375 979.862-6777 • 979.862.3250 fax• www.tamus.edu ' -································· --·················----················ .. ........... ------------------------------- SPONSORED SERVICES AGREEMENT This Sponsored Services Agreement ("'Agree1nent") is between Texas A&M University, a 1nember of The Texas A&M University System and an agency of the State of Texas ('"T AMlJ"), and the City of College Station, Texas a Texas Home Rule Municipal Corporation ("CITY"). The services conte1nplated under this Agree1nent are of mutual interest and benefit to TAMlJ and CITY and v.'ill further the instructional and technical objectives of T AMU in a manner consistent with its status as an agency of the State of Texas, The parties agree as follo\vs: I. STATEMENT OF WORK. TAMU agrees to use reasonable efforts to perform the services ("Services") described in the Statement of Work appended and incorporated as Appendix A. 2. SERVICES SUPERVISOR. The Services will be supervised by Dr. Stephen Crouse, Dr. Steven Martin, or Dr. John Green. If for any reason they arc unable to continue to serve as Services Supervisor, T AMU \Viii give CITY notice as soon as is reasonably practical. IfTAMU and crrv cannot agree on a successor within 30 days of the notice, this Agreen1ent \viii terminate and T AMU w·ill be paid for all costs and non-cancellable commitments incurred prior to the date of termination. 3. PERIOD OF PERFORMANCE. l'AMU will conduct the Services during the period of April I, 2015 through March 31, 2016 and may be renewed by the written mutual consent of the parties. 4. PRICE AND PAYMENT. As consideration and con1pensation for performance under this Agreement the CITY agrees to pay TAMU an an1ount not to exceed FIFTY TWO THOUSAND TWO HUNDRED DOLLARS ($52,200). CITY agrees to pay TAMU in accordance \Vith the rates in Appendix A. CITY 1nust rcn1it payn1ent to TAMU within 30 days of receipt ofTAMlJ invoices. Invoices will be sent to the address listed in Article 17. 5. PUBLICITY. CITY must not use the name 1'AMU, or the names of TAMU employees, in any publicity, advertising, or sales literature without prior written consent obtained from T AMU in each case. T AMU will have the right to acknowledge CITY, the Project Director, the nature of the Services, and the dollar value of the Agreement in T AMU records and reports in addition to any other infor1nation that is required to be disclosed in response to a public information request submitted pursuant to the Texas Public lnfonnation Act, Chapter 552, Texas Government Code. 6. TERMINATION. This Agreen1ent may be terminated by either party upon 30 days \Vritten notice. Jn the event of termination, TAMU \Viii be reimbursed for all costs and non-cancelable cornmitments incurred prior to the date of termination. 7. DISCLAIMER OF LIABILITY. TAMU MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED IN CONNECTION WITH THE SERVICES FURNISHED UNDER THIS AGREEMENT. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, OR THAT USE OF SERVICE- MATERIALS OR MODIFICATION OF SUCH MATERIALS WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHT. 8. FORCE MAJEURE. Except for the obligation for the payment of money, if either party fails to fulfill its prescribed obligations, \Vhen such failure is due to an act of God or other circumstance beyond its reasonable control, then such failure will be excused for the duration of such event and for such a time thereafter as is -- reasonable to enable the parties to resume performance under this Agreement. '--······-----·················------••••••••••••······························ .... --···· , ________________ _ 9. ENTIRE REPRESENTATION. l"his Agreement contains the entire agreen1ent between the parties and supersedes any prior oral or v .. ritten agreements, con1mit1nents, understandings, or communications \.vith respect to the subject matter of the Agreen1ent. No amendments or modification of this Agreement \Viii be effective unless set forth in \Vriting executed by duly authorized representatives of each party. This Agreement \viii be construed in accordance \Vith the la\vs of the State of"fexas. 10. WAIVER. No waiver of any provision, right, or remedy of this Agreen1ent will be effective unless in writing and signed by the party against whon1 such \vaiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy \Viii constitute a V.'aiver of any right or remedy, or its exercise in the future. 11. ASSIGNMENT. 1·his Agree1nent may not be assigned in v.'hole or in part by any of the parties v.·ithout prior v.·ritten consent of the other party. 12. SEVERABILITY. If any part of this Agreen1ent is determined by any court or tribunal of co1npetent jurisdiction to be v.'holly or partially unenforceable for any reason, such unenforceability \viii not affect the balance of this Agreement. 13. NON-WAIVER. TAMlJ is an agency of the State of Texas and nothing in this Agreement waives or relinquishes TAMU's right to claim any exemptions. privileges, or im1nunities as may be provided by !av.-·. crrv is a Texas Ilome Rule Municipal Corporation and nothing in this Agree1nent waives or relinquishes CITY's right to clairn any exe1nptions, privileges, or in1munities as may be provided by la\v. 14. GOVERNING LAW. The validity of this Agreement and all matters pertaining to this Agreement, including but not limited to, matters of perforn1ance, non-perfon11ance, breach, remedies, procedures, rights, duties, and interpretation or construction, shall be governed and determined by the Constitution and the laws of the State of Texas. 15. VENUE. Venue of any legal action or proceeding will be in Brazos County, Texas 16. EXPORT ADMINISTRATION. CITY certifies that the \vork to be conducted under this Agreen1ent and any exchange of technical data, computer sofuvare, or other commodities shall be conducted in full compliance with the export control la\vs of the United States. 17. NOTICE. Any notice required to be given in connection \Vith this Agreement must be in \Vriting and v.'ill be deemed effective if hand delivered, or if sent by United States certified mail, return receipt requested, postage prepaid, or if sent by private receipted courier guaranteeing same-day delivery, addressed to the respective party at its address provided below. If sent by U.S. certified mail in accordance with this Section, such notices \viii be deemed given and received on the earlier of (a) actual receipt at the address of the named addressee, or (b) on the third business day after deposit \Vith the United States Postal Service. Notice given by any other means will be deemed given and received only upon actual receipt at the address of the named addressee. TAMU: Marcie Avery Sponsored Research Services The Texas A&M University System 400 Harvey Mitchell Parkway South, Suite 300 College Station, Texas 77845-4375 Telephone: 979-862-6451 Fax: 979-862-3250 Email: mavery@tamus.edu ' .. . ·-~·· -···················· --··········· --···················-Page 2 of7 Kelly Templin City Manager City of College Station P.O. Box 9960 College Station, Texas 77840 Telephone: 979-764-3510 Fax: 979-764-3403 Email: ktemplin@cstx.gov 18. USE OF PURCHASE ORDERS. To the degree that either or both of the parties hereto find it convenient to employ their standard forms of purchase order or ackno\vledgment of order in ad1ninistering the terms of this Agreement, it or they n1ay do so but none of the terms and conditions printed or otherwise appearing on such fonn shall be applicable except to the extent that it specifies information required to be furnished by either party hereunder. The tenns proposed by any such form are specifically objected to and shall not be used as a basis for any contract. This Agreement is effective as of the date executed by the last party to sign. Texas A&M University ~) .,..:..., "ld{:a:ro.tJ;],.._, Katherine V. Kissmann 11tD.4 Director. Contracts and Grants Date: April 8, 2015 Page 3 of? City of College Station Ry: -----------~ Kelly Templin City Manager Date: APPROVED: City Attorney Date:-----------~--- Director Business Services Date: ---------------- Appendix A The purpose of this document is to provide the Sponsor with a description of the various types of testing procedures offered by the Applied Exercise Science Laboratory. A detailed breakdown of our Cardiovascular Health Profile (CHP) and Coronary Risk Profile (CRP) are provided In addition to this description, we have provided a" menu-type" listing of additional tests along with our current pricing options for those services. The Sponsor has the option of "picking and choosing" from the variety of testing options presented throughout this document The options chosen by the Sponsor will depend on their budget and/or preferences for that particular testing year. "Cardiovascular Health Profile" CCHPl will consist of the following components: ;;.-Pre-Exercise physical exam conducted by a physician for all individuals tested. Physician will be present for cardiovascular stress test for all male participants over the age of 45 and females over the age of 55. Individuals of any age with two or more significant cardiovascular disease risk markers will also be seen by a physician, and a physician will be present during the graded exercise test. A physician will be present during the exercise test and provide post-test interpretation of results. ;... In-Depth Medical Health History J.> Selected Laboratory Tes ts • *Cholesterol • *HDL • *Triglycerides • *Glucose • *Selected Liver and Kidney Enzymes • *Electrolytes ;;... Lung Function Assessment ;.,. Physical Fitness Evaluation • *Symptom-Limited Maximal Graded Exercise Test (Treadmill/Bike) • *Resting and Exercise 12-Lead Electrocardiogram • *Resting and Exercise Blood Pressure • *Estimated Oxygen Uptake and Endurance Capacity • *Body Composition Estimate (Skinfolds and/or DEXA) • *Low Back Flexibility Testing • *Muscular Strength and Endurance Y In-Depth Individualized Written Report • Presented to the individual test client. All records pertaining to the individual report are confidential and wiU be released only after written authorization is received from the individual client. >-Written Statistical Group Data Analysis and Summary of Results presented to City "Coronary Risk Profile" fCRPl will consists of the following components: Y In-Depth Medical Health History ;;.. Selected Laboratory Tests: Page 4 of7 Cholesterol HDL-Cholestero! Triglycerides Glucose Selected Liver and Kidney Enzymes Electrolytes ~ Resting Blood Pressure >-Resting Pulse ::.-Resting 12-Lead Electrocardiogram ).> Strength and Flexibility Y Skinfold Assessment of Body Composition plus height & weight :.--Individualized Written Reports Y Group Consultation (If requested) :... Written Statistical Data Analysis and Summary of Results presented to City The Applied Exercise Science Laboratory will adhere to the guidelines for exercise testing and prescription of the American College of Sports Medicine. Testing will be terminated in compliance with the American College of Sports Medicine indications for stopping an exercise test unless otherwise directed by the cardiologist or the testing supervisor present. The physician or testing supervisor will make all such decisions. The Applied Exercise Science Laboratory will provide all testing equipment, facilities testing personnel, supervising physician, blood analysis and resource materials required for testing. •----·-·cc·-········· ---········ -----······································ ... ---------------------············---------- Page 5 of? CHP (Cardiovascular Health Profile) #OF EMPLOYEES PRICE all $300.00 per person Cardiovascular Health Profile (CHP) without the Exercise Stress Test #OF EMPLOYEES PRICE all $150.00 per person Coronarv Risk Profile ICRP\ #OF EMPLOYEES PRICE all $75.00 per person Additional Tests Blood work only (Without CHP or CRP, no limit) $35.00 I person Complete Blood Count (CBC) $10.00 I person PSA Test (Recommended for males over 40 years of age) $30.00 I person Hemoglobin A1c (Diabetes Screen) $30.00 I person Hepatitis C Antibody Screen $35.00 I person RSC -Cholinesterase (Chemical Exposure Marker) $45.00 I person Additional Tests Chest X-Ray (1 view) $70.00 I person. Chest X-Ray (2 views) $115.00 I person Audiometric Examination $35.00 I person Visual Acuity w/Color $35.00 I person Respirator Evaluation $10.00 I person Hep-B Titer $60.00 I person Hep-8 Series (per shot, 3 shot series) $78.00 I person Heavy Metals Screen $138.00 I person COLLEGE STATION FIRE DEPARTMENT FITLIFE TESTING ESTIMATES • CHP (Cardiovascular Health Profile with stress test) 131 personnel@ $300.00 • CHP (Cardiovascular Health profile without stress test) 9 personnel @ $150.00 • CBC Blood Work 140 personnel@$10.00 • Audiometric Examination 140 personnel @$35.00 • PSA Blood Work 135 personnel @$30.00 • HEP-B Titer 20 personnel @ $60.00 Page7of7 SPONSORED SERVICES AGREEMENT This Sponsored Services Agreement ("Agreen1ent") is bet\vcen Texas A&M lJniversity, a n1e111ber of 'fhe Texas A&M University Systen1 and an agency of the State of l'exas (''l"AMlJ"), and the City of (~ollcge Station, Texas a 1'exas Honie Rule Municipal Corporation ("CITY"). The services conte1nplated under this Agreenient are of 111utual interest and benefit to ·rAMU and crrY and \vii! further the instructional and technical objectives ofTAMU in a n1anner consistent \Vith its status as an agency of the State of Texas, The parties agree as follo\vs: 1. ST ATF:MENT o:F WORK. T AMU agrees to use reasonable efforts to pcrfor1n the services ("Services") described in the Stalen1e11t of Work appended and incorporated as Appendix A. 2. SERVICES SUPERVISOR. The Services \viii be supervised by Dr. Stephen Crouse, Dr. Steven Martin. or Dr. John Green. If for any reason they are unable to continue to serve as Services Supervisor, TAi\.1U \vii! give CJTY notice as soon as is reasonably practical. 1r·rAMU and CJ'fY cannot agree on a successor \vithin 30 days of the notice, this l\greetnent \Viii tenninate and T AMlJ \viii be paid for all costs and non-cancellable con1mitn1ents incurred prior to the date oftern1ination. 3. PERIOD OF PERFORMANCE. TAMU \viii conduct the Services during the period of Aprill, 2015 through March 31, 2016 and 1nay be rene\ved by the \vrittcn 1nutual consent of the parties. 4. PRICE ANll PAYMENT. As consideration and compensation for perfonnance under this Agreen1ent the Cil"Y agrees to pay TAMU an a1nount not to exceed FIFTY TWO THOUSAND 1'WO HUNDRED DOLLARS ($52,200). crrY agrees to pay 1'Ai\.1U in accordance \Vi th the rates in Appendix A. CITY nlust remit payn1ent to TAMlJ \Vithin 30 days of receipt of TAMlJ invoices. Invoices \Viii be sent to the address listed in Article 17. 5. PUBLICITY. crrv nlust not use the na1ne TAMlJ, or the names of TAMU etnployees, in any publicity, advertising, or sales literature \vithout prior \Vritten consent obtained from TAMU in each case. TAMU \viii have the right to ackno\vledge CITY, the Project Director, the nature of the Services, and the dollar value of the Agreement in TAMU records and reports in addition to any other inforn1ation that is required to be disclosed in response to a public information request submitted pursuant to the Texas Public lnfonnation Act, Chapter 552, Texas Government Code. 6. TERMINATION. This Agreement n1ay be terminated by either party upon 30 days \Vritten notice. In the event of termination, TAMU \Viii be reimbursed for all costs and non-cancelable commitments incurred prior to the date of termination. 7. DISCLAIMER OF LIABILITY. TAMU MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED IN CONNECTION WITH THE SERVICES FURNISHED UNDER THIS AGREEMENT. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, OR THAT USE OF SERVICE- MATERIALS OR MODIFICATION OF SUCH MATERIALS WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHT. 8. FORCE MAJEURE. Except for the obligation for the payment of money, if either party fails to fulfill its prescribed obligations, when such failure is due to an act of God or other circumstance beyond its reasonable control, then such failure will be excused for the duration of such event and for such a time thereafter as is -- reasonable to enable the parties to resume performance under this Agreement. -----i 9. ENTIRE REPRESENTATION. 'fhis Agreetnent contains the entire agreernent bet\veen the parties and supersedes any prior oral or \vritten agree111ents. con1mitments, understandings, or co1nn1unications \Vith respect to the subject 1nattcr of the J\gree111ent. No a1nendn1cnts or 1nodificatio11 of this Agreen1ent \vill be effective unless set fo1th in v.Titing executed by duly authorized representatives of each party. This Agree1nent \viii be construed in accordance v.·ith the la\\"S of the Stale of Texas. 10. WAIVER. No \vaiver of any provision, right, or rcinedy of this Agreen1ent \vill be effective unless in \vriting and signed by the party against \Vhotn such \vaiver is sought to be enforced. No delay in exercising, no course of dealing \Vith respect to. or no partial exercise of any right or ren1edy \Vill constitute a \vaiver of any right or ren1edy, or its exercise in the future. 11. ASSIGNMENT. "fhis Agreen1ent n1ay not be assigned in \\'hole or in part by any of the parties \vithout prior \vritten consent of the other party. 12. SEVERABILI'rY. If any pa1i of this Agreenient is detern1ined by any cou1t or tribunal of coinpctentjurisdiction to be \vholly or paitialJy unenforceable for any reason, such unenforceability \viii not affect the balance of this Agree1nent. 13. NON-WAIVER. TAl\.1U is an agency of the State of Texas and nothing in this J\grceinent \Vaives or relinquishes ·rAMlJ's right to clain1 any excn1ptions, privileges, or in1n1unities as 1nay be provided by la\\'. CITY i::. a Texas 1--lonie Rule Municipal C:orporation and nothing in this Agree1nent \vaives or relinquishes Cll'Y's right to clain1 any exen1ptions, privileges, or i1111nunities as 111ay be provided by la\v. 14. GOVERNING LAW. The validity of this Agreement and all n1atters pertaining to this Agreetnent, including but not lin1itcd to, 1nattcrs of perfor1nance, non-perfonnance, breach, remedies, procedures, rights, duties, and interpretation or construction, shall be governed and detennined by the Constitution and the [a\VS of the State of Texas. 15. VENUE. \lenue of any legal action or proceeding \viii be in Brazos County, Texas 16. EXPORT ADMINISTRATION. CITY certifies that the \York to be conducted under this Agreement and any exchange of technical data, computer soft\vare, or other con1modities shall be conducted in full compliance \Vith the export control lavvs of the United States. 17. NOTICE. Any notice required to be given in connection \Vith this Agreernent must be in \\Titing and v.'ill be deemed effective if hand delivered, or if sent by United States certified 1nail, return receipt requested, postage prepaid, or if sent by private receipted courier guaranteeing same-day delivery, addressed to the respective party at its address provided belov.·. If sent by lJ.S. certified mail in accordance V.'ith this Section, such notices V.'ill be deemed given and received on the earlier of (a) actual receipt at the address of the named addressee, or (b) on the third business day after deposit \vith the lJnited States Postal Service. Notice given by any other means \Viii be deemed given and received only upon actual receipt at the address of the nan1ed addressee. Marcie A very Sponsored Research Services The Texas A&M University System 400 Harvey Mitchell Parkway South, Suite 300 College Station, Texas 77845-4375 Telephone: 979-862-6451 Fax: 979-862-3250 Email: mavery@tamus.edu Page 2 of7 Kelly Templin City Manager City of College Station P.O. Box 9960 College Station, Texas 77840 Telephone: 979-764-3510 Fax: 979-764-3403 Email: ktemplin!alcstx.gov 18. USE OF PURCHASE ORDERS. l'o the degree that either or both of the parties hereto find it convenient to e1nploy their standard forms of purchase order or ackno\vledgrnent of order in ad1ninistering the terms of this Agreement, it or they 1nay do so but none of the tenns and conditions printed or other\vise appearing on such fonn shall be applicable except to the extent that it specifies infonnation required to be furnished by either party hereunder. 'fhe tenns proposed by any such forn1 are specifically objected to and shall not be used as a basis for any contract This Agreen1ent is effective as of the date executed by the last rarty to sign. Texas A&M lJnivcrsity ay: t.~~ruibt.11rL:.i-n:i·_,,.._,__'Jfc:li£a::rn°",..__.) Katherine V. Kissinann ?f([)AI Director, Contracts and Grants Date: April 8, 2015 City of College Station By: ---·--··--· --- Kelly Tc1np!in City Manager Date: _______ _ APPROVED: c:ity Attorney Date; Director Business Services Date; --·------------- Appendix A The purpose of this document is to provide the Sponsor with a description of the various types of testing procedures offered by the Applied Exercise Science Laboratory. A detailed breakdown of our Cardiovascular Health Profile (CHP) and Coronary Risk Profile (CRP) are provided. In addition to this descr"1ption, we have provided a "menu-type" lisf1ng of additional tests along with our current pricing options for those services. The Sponsor has the option of "picking and choosing" from the variety of testing options presented throughout this document. The options chosen by the Sponsor will depend on their budget and/or preferences for that particular testing year. "Cardiovascular Health Profile" (CHPI will consist of the following components: Y Pre-Exercise physical exam conducted by a physician for all individuals tested. Phys·1cian will be present for cardiovascular stress test for all male participants over the age of 45 and females over the age of 55. Individuals of any age with two or more significant cardiovascular disease risk markers will also be seen by a physician, and a physician will be present during the graded exercise test. A physician will be present during the exercise test and provide post-test ·rnterpretation of results. ";-Jn-Depth Medical Health History :» Selected Laboratory Tests • *Cholesterol • *HDL • *Triglycerides • *Glucose • *Selected Liver and Kidney Enzymes • ~Electrolytes :,;. Lung Function Assessment ;.... Physical Fitness Evaluation • *Symptom-Limited Maximal Graded Exercise Test (Treadmill/Bike) • *Resting and Exercise 12-Lead Electrocardiogram • *Resting and Exercise Blood Pressure • *Estimated Oxygen Uptake and Endurance Capacity • *Body Composition Estimate (Skinfolds and/or DEXA) • *Low Back Flexibility Testing • *Muscular Strength and Endurance ;>.> In-Depth Individualized Written Report • Presented to the individual test client. All records pertaining to the individual report are confidential and will be released only after written authorization is received from the individual client }-Written Statistical Group Data Analysis and Summary of Results presented to City "Coronary Risk Profile" (CRPl will consists of the following components: );.-Jn-Depth Medical Health History » Selected Laboratory Tests: Page 4 of7 Cholesterol HDL-Cholesterol Triglycerides Glucose Selected Liver and Kidney Enzymes Electrolytes :>-Resting Blood Pressure ? Resting Pulse :;. Resting 12-Lead Electrocardiogram >-Strength and Flexibility >---Skinfold Assessment of Body Composition plus height & weight :;. Individualized Written Reports Y Group Consultation (If requested) Y Written Statistical Data Analysis and Summary of Results presented to City The Applied Exercise Science Laboratory will adhere to the guidelines for exercise testing and prescription of the American College of Sports Medicine. Testing will be terminated in compliance with the American College of Sports Medicine indications for stopping an exercise test unless otherwise directed by the cardiologist or the testing supervisor present. The physician or testing supervisor will make all such decisions. The Applied Exercise Science Laboratory will provide all testing equipment, facilities testing personnel, supervising physician, blood analysis and resource materials required for testing. Page 5 of7 CHP (Cardiovascular Health Profile) #OF EMPLOYEES PRICE all $300.00 per person Cardiovascular Health Profile (CHPl without the Exercise Stress Test #OF EMPLOYEES PRICE all $150.00 per person Coronarv Risk Profile (CRP) #OF EMPLOYEES PRICE all $75.00 per person Additional Tests Blood work only (Without CHP or CRP, no limit) $35.00 I person Complete Blood Count (CBC) $10.00 I person PSA Test (Recommended for males over 40 years of age) $30.00 I person Hemoglobin A1c (Diabetes Screen) $30.00 I person Hepatitis C Antibody Screen $35.00 I person RBC -Cholinesterase (Chemical Exposure Marker) $45.00 I person Additional Tests Chest X-Ray (1 view) $70.00 I person. Chest X-Ray (2 views) $115.00 I person Audiometric Examination $35.00 I person Visual Acuity w/Color $35.00 I person Respirator Evaluation $10.00 I person Hep-8 Titer $60.00 I person Hep-8 Series (per shot, 3 shot series) $78.00 I person Heavy Metals Screen $138.00 I person '-------------------"" ---------....... _ Page 6 of7 COLLEGE STATION FIRE DEPARTMENT FITLIFE TESTING ESTIMATES • CHP (Cardiovascular Health Profile \Vith stress test) J 31 personnel @ $300.00 • CHP ((~ardiovascular Health profile \.Vithout stress test) 9 personnel @ $150.00 • CBC Blood Work 140 personnel @$10.00 • Audiometric Examination 140 personnel @}$35.00 • PSA Blood Work 135 personnel @$30.00 • l-IEP-B Titer 20 personnel @) $60.00 Page 7 of7 City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0239 Name:Eisenhower Extension Status:Type:Contract Consent Agenda File created:In control:5/11/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action and discussion regarding construction contract 15-200 with Brazos Paving, Inc., in the amount of $478,339.25 for the extension of Eisenhower Street from Ash Street to Lincoln Avenue. Sponsors:Donald Harmon Indexes: Code sections: Attachments:15-040 Bid Tabulation.pdf Project Location Map - Eisenhower Street Extension (8.5x11).pdf Action ByDate Action ResultVer. Presentation,possible action and discussion regarding construction contract 15-200 with Brazos Paving,Inc.,in the amount of $478,339.25 for the extension of Eisenhower Street from Ash Street to Lincoln Avenue. Relationship to Strategic Goals: ·Core Services and Infrastructure ·Improving Mobility Recommendation(s): Staff recommends approval of the construction contract. Summary:This project will extend Eisenhower Street from Ash Street to Lincoln Avenue.The project consists of a two lane road (approximately 720 LF),a 5-foot sidewalk,replacement of a 12-inch waterline,replacement of a sewer manhole with approximately 50 linear feet of sewer line,and installation of street lighting along Eisenhower Street. Budget & Financial Summary: A total of $ 939,331 is budgeted for this project in the Streets Capital Improvement Projects Fund ($681,831), the Water Capital Improvement Projects Fund ($157,500) and the Wastewater Capital Improvement Projects Fund ($100,000). Funds in the amount of $139,517 has been expended or committed to date leaving a balance of $799,814 for construction and related expenditures. Attachments: 1. Contract No. 15-200 (on file with the City Secretary) 2. Bid Tabulation ITB #15-040 3. Project Location Map College Station, TX Printed on 5/22/2015Page 1 of 1 powered by Legistar™ City of College Station - Purchasing Division Bid Tabulation for #15-040 "Eisenhower Street Extension" Open Date: Friday, April 24, 2015 @ 2:00 p.m. ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL UNIT PRICE TOTAL UNIT PRICE TOTAL GENERAL ITEMS 1 1 LS Mobilization, bonds and insurance as required in the specifications.$31,100.00 $31,100.00 $57,000.00 $57,000.00 $125,000.00 $125,000.00 2 1 LS Install Traffic control, including all signage, barricades, temporary paving, cones, striping, buttons and related items as shown and included on plans & specifications, to include all material, labor and equipment to complete the work. $13,860.00 $13,860.00 $25,000.00 $25,000.00 $10,000.00 $10,000.00 Subtotal: General Items REMOVALS 3 1.34 AC Clear & Grub right of way and remove materials offsite to include all material, labor and equipment to complete the work. $7,800.00 $10,452.00 $5,224.00 $7,000.16 $5,500.00 $7,370.00 4 170 LF Remove curb & gutter as shown on plans & specifications to include all material, labor and equipment to complete the work. $8.50 $1,445.00 $11.45 $1,946.50 $7.50 $1,275.00 5 91 SY Remove curb apron as shown on plans & specifications to include all material, labor and equipment to complete the work. $22.50 $2,047.50 $40.00 $3,640.00 $12.00 $1,092.00 6 76 SY Remove sidewalk as shown on plans & specifications to include all material, labor and equipment to complete the work. $13.50 $1,026.00 $20.00 $1,520.00 $5.00 $380.00 7 89 LF Remove block retaining wall as shown on plans & specifications to include all material, labor and equipment to complete the work. $15.00 $1,335.00 $15.78 $1,404.42 $22.00 $1,958.00 8 1 LS Remove 67 LF of sewer line and 1 manhole as shown on plans & specifications to include all material, labor and equipment to complete the work. $2,540.00 $2,540.00 $1,479.00 $1,479.00 $1,000.00 $1,000.00 9 688 LF Remove existing 6", 8" and 12" waterlines and fittings as shown on plans & specifications to include all material, labor and equipment to complete the work. $20.00 $13,760.00 $21.89 $15,060.32 $10.00 $6,880.00 10 70 LF Remove existing water service line and fittings as shown on plans & specifications to include all material, labor and equipment to complete the work. $12.00 $840.00 $15.00 $1,050.00 $10.00 $700.00 11 1 LS Remove drainage culvert pipe at driveway and backfill as shown on plans & specifications to include all material, labor and equipment to complete the work. $600.00 $600.00 $600.00 $600.00 $200.00 $200.00 12 1 LS Remove miscellaneous signs, posts, fencing, concrete, and other encroachments, to include all material, labor and equipment to complete the work. $200.00 $200.00 $2,500.00 $2,500.00 $1,000.00 $1,000.00 13 1 LS Remove existing striping as shown on plans and specifications to include all material, labor and equipment to complete the work. $300.00 $300.00 $1,000.00 $1,000.00 $500.00 $500.00 Subtotal: Removals ROADWAY & EARTHWORK 14 2404 CY Excavation of in-place roadway cut, complete including all materials, labor and equipment to complete the work.$12.25 $29,449.00 $16.31 $39,209.24 $16.50 $39,666.00 15 22 CY Compacted Fill of roadway embankment, including all materials, labor and equipment to complete the work, complete and in place. $15.00 $330.00 $256.82 $5,650.04 $16.50 $363.00 16 3172 SY Install 8" thick reinforced jointed concrete pavement, including all materials, labor and equipment to complete the work complete and in-place. $41.85 $132,748.20 $39.56 $125,484.32 $49.00 $155,428.00 17 351 SY Install 2" thick type D HMAC surface, including prime coat as shown and included on plans & specifications, to include all material, labor and equipment to complete the work, complete and in-place. $14.00 $4,914.00 $25.00 $8,775.00 $16.50 $5,791.50 18 455 SY Install 10" thick type A, grade 1 Limestone Base as shown and included on plans & specifications, to include all material, labor and equipment to complete the work, complete and in-place. $18.00 $8,190.00 $24.00 $10,920.00 $29.00 $13,195.00 19 3949 SY Install 6" thickness Lime stabilized subgrade treatment (estimated 8% Lime) as shown and included on plans & specifications, to include all material, labor and equipment to complete the work, complete and in-place. $5.20 $20,534.80 $5.83 $23,022.67 $8.00 $31,592.00 $44,960.00 $34,545.50 Brazos Paving Texcon General Contractors $82,000.00 $37,200.40 Elliott Construction, LLC $135,000.00 $22,355.00 City of College Station - Purchasing Division Bid Tabulation for #15-040 "Eisenhower Street Extension" Open Date: Friday, April 24, 2015 @ 2:00 p.m. ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL UNIT PRICE TOTAL UNIT PRICE TOTAL Brazos Paving Texcon General Contractors Elliott Construction, LLC 20 1349 LF Install mono curb as shown and included on plans & specifications, to include all material, labor and equipment to complete the work, complete and in-place. $4.25 $5,733.25 $7.00 $9,443.00 $3.30 $4,451.70 21 226 LF Install curb & gutter as shown and included on plans & specifications, to include all material, labor and equipment to complete the work, complete and in-place. $18.00 $4,068.00 $18.00 $4,068.00 $20.00 $4,520.00 22 68 CY Install concrete channel lining and inlet structure modifications as shown on plans & specifications, to include all material, labor and equipment to complete the work, complete and in-place. $430.30 $29,260.40 $368.91 $25,085.88 $330.00 $22,440.00 23 4580 SF Install 4" thick concrete sidewalk and 40 LF of block retaining wall as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in-place. $4.50 $20,610.00 $7.10 $32,518.00 $6.05 $27,709.00 24 40 LF Install 40 LF of block retaining wall as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in-place. $90.00 $3,600.00 $350.00 $14,000.00 $93.50 $3,740.00 25 8 EA Install sidewalk ramps as shown on plans & specifications, to include all materials, labor and equipment to comple the work, complete and in-place. $650.00 $5,200.00 $850.00 $6,800.00 $500.00 $4,000.00 Subtotal: Roadway and Earthwork WATER LINE 26 658 LF Furnish and Install 12" diameter C900 PVC DR-14 waterline as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $50.00 $32,900.00 $45.00 $29,610.00 $47.00 $30,926.00 27 25 LF Furnish and Install 6" diameter C900 PVC DR-14 waterline as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $50.00 $1,250.00 $134.68 $3,367.00 $35.00 $875.00 28 4 EA Furnish and Install 12"- 45° MJ Elbow with thrust blocking as shown on plans and specifications, complete and in place. $916.00 $3,664.00 $550.00 $2,200.00 $520.00 $2,080.00 29 4 EA Furnish and Install 12"MJ Gate Valve and box with thrust blocking, as shown on plans and specifications, complete and in place. $3,225.00 $12,900.00 $1,950.00 $7,800.00 $1,990.00 $7,960.00 30 1 EA Furnish and Install 8"MJ Gate Valve and box with thrust blocking, as shown on plans and specifications, complete and in place. $1,470.00 $1,470.00 $1,250.00 $1,250.00 $1,150.00 $1,150.00 31 1 EA Furnish and Install 2" Air Release Valve as shown on plans and specifications, complete and in place.$2,560.00 $2,560.00 $3,000.00 $3,000.00 $3,115.00 $3,115.00 32 2 EA Furnish and Install 6"MJ Gate Valve and box with thrust blocking, as shown on plans and specifications, complete and in place. $1,355.00 $2,710.00 $950.00 $1,900.00 $850.00 $1,700.00 33 2 EA Furnish and Install 12"MJ Coupling, as shown on plans and specifications, complete and in place.$590.00 $1,180.00 $650.00 $1,300.00 $470.00 $940.00 34 1 EA Furnish and Install 6"MJ Coupling, as shown on plans and specifications, complete and in place.$370.00 $370.00 $200.00 $200.00 $250.00 $250.00 35 1 EA Furnish and Install 12"x12"x8" MJ Tee, as shown on plans and specifications, complete and in place.$850.00 $850.00 $650.00 $650.00 $555.00 $555.00 36 2 EA Furnish and Install 6" MJ 11.25° Bend, as shown on plans and specifications, complete and in place.$510.00 $1,020.00 $350.00 $700.00 $250.00 $500.00 37 80 LF Furnish and Install 1" diameter copper service waterline as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $24.60 $1,968.00 $34.00 $2,720.00 $34.00 $2,720.00 38 2 EA Furnish and Install 12"x12"x6" MJ Tee, as shown on plans and specifications, complete and in place.$685.00 $1,370.00 $550.00 $1,100.00 $545.00 $1,090.00 Subtotal: Water Line EROSION CONTROL 39 1 LS File notice of intent and storm water pollution prevention plan with TCEQ, maintain and post all project information and keep records and report to inspector and engineer. $500.00 $500.00 $2,500.00 $2,500.00 $1,200.00 $1,200.00 40 1 LS Furnish, install, maintain and remove sediment devices including hay bales, storm drain inlet protection, entrance rock, check dams, watering and other sediment control devices as shown on plans and specifications, complete and in place. $3,750.00 $3,750.00 $4,500.00 $4,500.00 $6,800.00 $6,800.00 $264,637.65 $64,212.00 $304,976.15 $55,797.00 $312,896.20 $53,861.00 City of College Station - Purchasing Division Bid Tabulation for #15-040 "Eisenhower Street Extension" Open Date: Friday, April 24, 2015 @ 2:00 p.m. ITEM QTY UNIT DESCRIPTION UNIT PRICE TOTAL UNIT PRICE TOTAL UNIT PRICE TOTAL Brazos Paving Texcon General Contractors Elliott Construction, LLC 41 1048 LF Furnish, install, maintain and remove silt control fencing as shown on plans and specifications, complete and in place.$2.65 $2,777.20 $3.50 $3,668.00 $3.50 $3,668.00 42 0.38 AC Hydromulch all disturbed areas including smoothing, mulch, seed, fertilizer, watering, maintenance and clean-up as shown on plans and specifications, complete and in place. $3,630.00 $1,379.40 $5,300.00 $2,014.00 $3,500.00 $1,330.00 43 439 SY Furnish and install Bermuda block sod including smoothing, seed, fertilizer, watering, maintenance and clean-up as shown on plans and specifications, complete and in place. $4.50 $1,975.50 $5.50 $2,414.50 $10.00 $4,390.00 Subtotal: Erosion Control SEWER LINE 44 17 LF Furnish and Install 12" diameter SDR-26 sewer pipe with structural backfill as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $145.60 $2,475.20 $300.00 $5,100.00 $145.00 $2,465.00 45 12 LF Furnish and Install 8" diameter SDR-26 sewer pipe with structural backfill as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $168.00 $2,016.00 $300.00 $3,600.00 $140.00 $1,680.00 46 30 LF Furnish and Install 6" diameter SDR-26 sewer pipe with structural backfill as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $92.00 $2,760.00 $200.00 $6,000.00 $138.00 $4,140.00 47 1 EA Furnish and Install standard 6' manhole structure with structual backfill as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $4,800.00 $4,800.00 $5,000.00 $5,000.00 $7,730.00 $7,730.00 48 1 EA Adjust existing manhole rim as shown on plans & specifications, to include all materials, labor and equipment to complete the work. $600.00 $600.00 $1,000.00 $1,000.00 $500.00 $500.00 Subtotal: Sewer Line SIGNAGE & STRIPING 49 1 LS Furnish and Install all reflective pavement markings, sealer, arrows and symbols as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $14,543.00 $14,543.00 $18,000.00 $18,000.00 $16,000.00 $16,000.00 50 9 EA Furnish and Install all sign assemblies as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $535.00 $4,815.00 $650.00 $5,850.00 $570.00 $5,130.00 Subtotal: Signing & Striping ILLUMINATION 51 4 EA Furnish and Install street light illumination assembly including all related wiring and hardware as shown on plans & specifications, to include all materials, labor and equipment to complete the work. $4,115.00 $16,460.00 $5,000.00 $20,000.00 $5,400.00 $21,600.00 52 4 EA Install concrete foundations for the street light assemblies as shown on plans & specifications, to include all materials, labor and equipment to complete the work. $880.00 $3,520.00 $2,000.00 $8,000.00 $3,000.00 $12,000.00 53 793 LF Furnish and Install 1" electrical SCH 40 PVC conduit for the street light illumination assemblies, including all related wiring and hardware as shown on plans & specifications, to include all materials, labor and equipment to complete the work, complete and in place. $9.60 $7,612.80 $27.87 $22,100.91 $12.00 $9,516.00 Subtotal: Illumination Total Bid Bid Certification Bid Bond Addendum Acknowledged $12,651.20 $10,382.10 Y Y $19,358.00 $27,592.80 $478,339.25 Y $15,096.50 $20,700.00 $23,850.00 $50,100.91 $589,720.96 $17,388.00 $16,515.00 $21,130.00 $43,116.00 $622,261.20 Y Y Y Y Y Y AVENUE A NIMITZ STREET LINCOLN AVENUEEISENHOWER STREET ASH STREET¯ Project Location Map - Eisenhower Street Extension City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0240 Name:Southbound Texas to Westbound University No Right Turns on Red Status:Type:Ordinance Consent Agenda File created:In control:5/11/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action, and discussion on consideration of an ordinance amending Chapter 10, “Traffic Code,” Section 2(K) of the Code of Ordinances of the City of College Station to prohibit right turns on red from southbound Texas Avenue to westbound University Drive. Sponsors:Donald Harmon Indexes: Code sections: Attachments:Right-Turn on Red Ordinance - SB Texas @ University Drive.pdf Action ByDate Action ResultVer. Presentation, possible action, and discussion on consideration of an ordinance amending Chapter 10, “Traffic Code,” Section 2(K) of the Code of Ordinances of the City of College Station to prohibit right turns on red from southbound Texas Avenue to westbound University Drive. Relationship to Strategic Goals: ·Core Services and Infrastructure ·Improving Mobility Recommendation(s): Staff recommends approval of the ordinance amendment. Summary: This ordinance prohibits right turns on red for vehicles traveling southbound on Texas Avenue to westbound University Drive. The northbound traffic on Texas Avenue uses two turn lanes to turn left into the three westbound lanes on University Drive. These same three westbound lanes are used by the southbound Texas Ave traffic in the dual right turn lanes. Southbound Texas will have a red indication when the northbound left turn lanes on Texas have a green. The sign prohibits motorists from turning right during this time. Budget & Financial Summary: The “No Right Turn on Red” signs are operation and maintenance expenses accounted for in the Public Works Traffic Operation budget. Attachments: 1.Ordinance 2.Location map College Station, TX Printed on 5/22/2015Page 1 of 1 powered by Legistar™ ORDINANCE NO. __________ AN ORDINANCE AMENDING CHAPTER 10, “TRAFFIC CODE”, OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY AMENDING SCHEDULE VIII AS REFERENCED IN SUBSECTION K OF SECTION 2 THEREOF; PROHIBITING RIGHT-TURNS ON RED; PROVIDING A SEVERABILITY CLAUSE; DECLARING A PENALTY; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That Chapter 10, “Traffic Code”, of the Code of Ordinances of the City of College Station, Texas, be amended by amending schedule VIII as referenced in subsection K of Section 2 thereof as set out in Exhibit “A”, attached hereto and made a part of this ordinance for all purposes. PART 2: That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. PART 3: That any person, firm, or corporation violating any of the provisions of this chapter shall be deemed liable for a civil offense and, upon a finding of liability thereof, shall be punished by a civil penalty of not less than One Dollar ($25.00) nor more than Five Hundred Dollars ($500.00). Said Ordinance become effective ten (10) days after date of passage by the City Council, as provided by Section 35 of the Charter of the City of College Station. Southeast Bound Texas Avenue to Southwest Bound University Drive Right-Turn on Red Prohibition Ordinance Page 2 of 3 PASSED, ADOPTED and APPROVED this ______ day of _______________, 2015. APPROVED: ____________________________________ Mayor ATTEST: _______________________________ City Secretary APPROVED: _______________________________ City Attorney Southeast Bound Texas Avenue to Southwest Bound University Drive Right-Turn on Red Prohibition Ordinance Page 3 of 3 EXHIBIT “A” That the Traffic Control Device Inventory - Schedule VIII as referenced in Chapter 10, “Traffic Code”, Section 2, “Intersections controlled by no right turn or no left turn signs,” Subsection K is hereby amended to include the following: 1. Texas Avenue a. NO RIGHT TURN ON RED from southeast bound Texas Avenue (SH B6-R) on to southwest bound University Drive (FM 60). City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0241 Name:Francis Drive Rehabilitation Design Contract Status:Type:Contract Consent Agenda File created:In control:5/11/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action and discussion regarding a professional services contract (contract number 15300244) with Kimley-Horn and Associates, Inc. in the amount of $405,900 for the professional engineering services related to the design of the first two phases of the Francis Drive Rehabilitation Project. Sponsors:Donald Harmon Indexes: Code sections: Attachments:Francis Drive Project Location.pdf Action ByDate Action ResultVer. Presentation,possible action and discussion regarding a professional services contract (contract number 15300244)with Kimley-Horn and Associates,Inc.in the amount of $405,900 for the professional engineering services related to the design of the first two phases of the Francis Drive Rehabilitation Project. Relationship to Strategic Goals: ·Core Services and Infrastructure Recommendation(s): Staff recommends approval of the professional services contract. Summary: The first phase of the Francis Drive Rehabilitation Project will reconstruct Francis Drive from Glenhaven to Munson, approximately 3,100 linear feet. The second phase will reconstruct Francis Drive from Munson Drive to Walton, approximately 2,000 linear feet. The improvements to both phases will include replacement of the existing pavement, sidewalk improvements, and water and wastewater line replacements. Budget &Financial Summary:Budget for the design and construction of phases I and II of the Francis Drive Rehabilitation project are budgeted in the Streets Capital Improvement Projects Fund ($1,815,000),the Water Capital Improvement Projects Fund ($850,000)and the Wastewater Capital Improvement Projects Fund ($315,000).The project is budgeted to be designed in FY15 and constructed in FY16 and FY17. Attachments: 1.Contract No. 15300244 (on file with the City Secretary) 2.Project Map College Station, TX Printed on 5/22/2015Page 1 of 2 powered by Legistar™ File #:15-0241,Version:1 College Station, TX Printed on 5/22/2015Page 2 of 2 powered by Legistar™ Lincoln Av Texas AvFrancis Dr Dominik Dr W altonDr MunsonAvSpring Lo Phase 1Phase 2 . Francis Drive RehabilitationPhases I & IIProject Location Map City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0245 Name:Joint Annexation Task Force Resolution Status:Type:Resolution Consent Agenda File created:In control:5/11/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action, and discussion regarding approval of a Resolution establishing a Joint Annexation Task Force to update the timing, priorities, and phasing of future annexations. Sponsors:Lance Simms Indexes: Code sections: Attachments:Resolution.pdf Action ByDate Action ResultVer. Presentation, possible action, and discussion regarding approval of a Resolution establishing a Joint Annexation Task Force to update the timing, priorities, and phasing of future annexations. Relationship to Strategic Goals: ·Good Governance ·Financially Sustainable City ·Core Services and Infrastructure ·Neighborhood Integrity ·Diverse Growing Economy ·Improving Mobility ·Sustainable City Recommendation(s): Staff recommends approval of the Resolution Summary:Last year,the City Council adopted the Comprehensive Plan Five-Year Evaluation and Appraisal Report.The report contains a number of recommendations,including one related to the need to form a joint annexation task force comprised of three Council members and three commissioners to update the timing,priorities,and phasing of future annexations.The Planning and Zoning Commission's adopted Plan of Work also includes the formation of a joint annexation task force. The attached Resolution establishes the annexation task force,identifies the task force's charge,and establishes a "sunset" date for the task force. Budget & Financial Summary: N/A College Station, TX Printed on 5/22/2015Page 1 of 2 powered by Legistar™ File #:15-0245,Version:1 Attachments: 1. Resolution College Station, TX Printed on 5/22/2015Page 2 of 2 powered by Legistar™ RESOLUTION NO. ____________ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, APPROVING THE FORMATION OF A JOINT ANNEXATION TASK FORCE. WHEREAS, the City Council of the City of College Station, Texas, recognizes the importance of establishing and maintaining the necessary policy guidance and associated strategies to maintain its ongoing physical growth in a sensible, predictable, and fiscally responsible manner; and WHEREAS, the City Council of the City of College Station, Texas adopted the Comprehensive Plan Five-Year Evaluation and Appraisal Report; and WHEREAS, the Comprehensive Plan Five-Year Evaluation and Appraisal Report recommended that Chapter Eight of the Comprehensive Plan be amended to update the timing , priorities, and phasing of future annexations; and WHEREAS, the College Station Planning and Zoning Commission’s adopted Plan of Work includes the formation of a joint annexation task force; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That the City Council hereby approves the formation of a joint annexation task force consisting of three Council members and three Planning & Zoning commissioners with the three Council members to be appointed by the Council and the three commissioners to be appointed by the Planning & Zoning Commission. PART 2: That the City Council hereby approves that said task force shall select among itself a Chair from among the appointed Council members. PART 3: That the City Council hereby approves that said task force convene meetings as deemed necessary to update the timing, priorities, and phasing of future annexations, solicit input from stakeholders as deemed necessary, formulate recommendations and subject said recommendations to public hearings and forward final recommendations to the Planning & Zoning Commission and the City Council for final action. PART 4: That the City Council hereby approves that said task force shall complete its work on or before December 31, 2015 upon which time said task force shall be deemed disbanded without further action necessary from the Council. PART 5: That this resolution shall take effect immediately from and after its passage. ADOPTED this _______ day of ________________________, A.D. 2015. ATTEST: APPROVED: ______________________________ _________________________________ City Secretary MAYOR APPROVED: _______________________________ City Attorney City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0247 Name:Pipeline Franchise for Oil and Gas Operations Status:Type:Franchises Consent Agenda File created:In control:5/12/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action, and discussion on the second reading of a non-exclusive Pipeline Franchise Ordinance for Oil and Gas Operations with Halcón Field Services, LLC to construct, operate, maintain, remove, replace, and repair pipeline facilities, together with equipment and appurtenances thereto, for the transportation of petroleum products and byproducts. Sponsors:Alan Gibbs Indexes: Code sections: Attachments:Pipeline Franchise Ordinance Action ByDate Action ResultVer. Presentation,possible action,and discussion on the second reading of a non-exclusive Pipeline Franchise Ordinance for Oil and Gas Operations with Halcón Field Services,LLC to construct, operate,maintain,remove,replace,and repair pipeline facilities,together with equipment and appurtenances thereto, for the transportation of petroleum products and byproducts. ·Good Governance ·Diverse Growing Economy Recommendation(s): Staff recommends approval. Summary: Article XI,Section 103 of the City Charter provides that the City can grant franchises.The City Charter requires two readings of Council followed by a 60 day period after passage by Council before a granted franchise can become effective.The first reading of this franchise was at the May 18th Council Meeting. The framework of this pipeline franchise was recently prepared by the City's consultant Ernie Bruchez recently as previously referenced and associated with the Oil and Gas Ordinance Update effort.This particular franchise is the next step in Halcón's Bistonte #3H Well and Buey #1H Well permitting to enable the collection and transportation,via pipeline,of natural gas and other petroleum products produced by the two wells. Budget & Financial Summary: The Franchisee (Halcón Field Services, LLC) agrees and shall pay to the City an annual franchise fee of $1.00 per linear foot of the pipeline franchise area, plus an annual fee of $1,000 per road boring. The current route in the franchised area is an estimated 3,534 linear feet long and will require College Station, TX Printed on 5/22/2015Page 1 of 2 powered by Legistar™ File #:15-0247,Version:1 two road borings. The total annual fee to be paid by Franchisee to the City is $5,534.00. Attachments: 1. Pipeline Franchise Ordinance College Station, TX Printed on 5/22/2015Page 2 of 2 powered by Legistar™ City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0255 Name:2015 JAG ILA Status:Type:Agreement Consent Agenda File created:In control:5/14/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action, and discussion on an interlocal agreement (ILA) with Brazos County and the City of Bryan to apply and accept a U.S. Department of Justice, 2015 Justice Assistance Grant (JAG). Sponsors:Brandy Norris Indexes: Code sections: Attachments:ILA - 2015 Byrne Memorial JAG Award.pdf Action ByDate Action ResultVer. Presentation, possible action, and discussion on an interlocal agreement (ILA) with Brazos County and the City of Bryan to apply and accept a U.S. Department of Justice, 2015 Justice Assistance Grant (JAG). Relationship to Strategic Goals: (Select all that apply) ·Financially Sustainable City Recommendation(s):Staff recommends Council approval. Summary:This Edward Byrne Memorial Justice Assistance Grant (JAG) Program is the primary provider of federal criminal justice funding to state and local jurisdictions and fund all components of the criminal justice system. JAG funded projects may address crime through the provision of services directly to individuals and or communities by improving the effectiveness and efficiency of criminal justice systems, processes and procedures. College Station Police Department intends to utilize this funding for the purpose of supporting local initiatives, technical assistance, training, equipment, supplies and information technology projects in support of our community-oriented mission. Budget & Financial Summary:The 2015 JAG allocation for Brazos County is $56,125. This amount is based upon a statutory JAG formula that considers the jurisdiction's share of state population and reported part 1 violent crime statistics. The grant has no match requirement. Individual recommended allocations designated by the Department of Justice are: Brazos County- $0; Bryan- $27,265; College Station - $28,860 for a total of $56,125. Brazos County has been certified as a disparate jurisdiction. As such, all jurisdictions must enter into an Interlocal Agreement to specify an award distribution to each unit of local government in a manner that will address disparity and furthermore, must apply for funding jointly. College Station, TX Printed on 5/22/2015Page 1 of 2 powered by Legistar™ File #:15-0255,Version:1 College Station and Bryan Police Departments have agreed to provide 15% of their recommended funding to Brazos County Sheriff's office in an effort to address disparity. After providing 15% to the Brazos County Sheriff's office, the allocations are as follows: Brazos County - $8,418.75; Bryan - $23,175.25; College Station - $24,531 for a total of $56,125. College Station Police Department will serve as the administering agency. Attachments:ILA with Brazos County and the City of Bryan. College Station, TX Printed on 5/22/2015Page 2 of 2 powered by Legistar™ 2015 Byrne Justice Assistance Grant (JAG) Program Award Page 1 of 7 INTERLOCAL AGREEMENT BETWEEN BRAZOS COUNTY, THE CITY OF COLLEGE STATION, AND THE CITY OF BRYAN FOR THE 2015 BYRNE JUSTICE ASSISTANCE GRANT (JAG) PROGRAM AWARD This Agreement is made and entered into by and between Brazos County, Texas (hereinafter referred to as the “County”), acting through its Commissioners’ Court, the City of College Station (hereinafter referred to as “College Station”), a Texas Home Rule Municipal Corporation, acting through its City Council; and the City of Bryan, Texas (hereinafter referred to as “Bryan”), a Texas Home Rule Municipal Corporation, acting through its City Council. WHEREAS, the County, College Station, and Bryan wish to submit a joint application for grant funds under the U.S. Department of Justice’s 2015 Edward Byrne Memorial Justice Assistance Grant (JAG) Program; and WHEREAS, as a condition precedent to receiving a JAG award, the County, College Station, and Bryan are required to enter into an inter-local agreement designating one joint applicant to serve as the applicant/fiscal agent for the joint funds; and WHEREAS, College Station will serve as the applicant/fiscal agent; and WHEREAS, Chapter 791 of the Texas Government Code, also known as the Interlocal Cooperation Act, authorizes all local governments to contract with each other to perform governmental functions or services; and WHEREAS, the parties represent that each is independently authorized to perform the functions or services contemplated by this Agreement; and WHEREAS, each governing body, in performing governmental functions or in paying for the performance of governmental functions hereunder, shall make that performance or those payments from current revenues legally available to that party; and WHEREAS, each governing body finds that the performance of this Agreement is in the best interests of all parties, that the undertaking will benefit the public, and that the division of costs fairly compensates the performing party for the services or functions under this Agreement; and WHEREAS, College Station agrees to provide the County $8,418.75 from the JAG award for the purpose of supporting local initiatives, technical assistance, training, personnel, equipment, supplies, contractual support, information technology, research and evaluation activities that will improve or enhance law enforcement programs; and WHEREAS, College Station agrees to provide Bryan $23,175.25 from the JAG award for the purpose of supporting local initiatives, technical assistance, training, personnel, equipment, supplies, contractual support, information technology, research and evaluation activities that will improve or enhance law enforcement programs; and 2015 Byrne Justice Assistance Grant (JAG) Program Award Page 2 of 7 WHEREAS, College Station shall use their $24,531.00 from the JAG award for the purpose of supporting local initiatives, technical assistance, training, personnel, equipment, supplies, contractual support, information technology, research and evaluation activities that will improve or enhance law enforcement programs; and WHEREAS, College Station, Bryan and the County believe it to be in their best interest to reallocate the JAG funds as described above, NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and conditions contained herein, promise and agree as follows: 1. College Station agrees to pay the County a total of $8,418.75 of JAG funds. 2. The County agrees to use the $8,418.75 for the purpose of supporting local initiatives, technical assistance, training, personnel, equipment, supplies, contractual support, information technology, research and evaluation activities that will improve or enhance law enforcement programs. 3. College Station agrees to pay Bryan a total of $23,175.25 of JAG funds. 4. Bryan agrees to use $23,175.25 for the purpose of supporting local initiatives, technical assistance, training, personnel, equipment, supplies, contractual support, information technology, research and evaluation activities that will improve or enhance law enforcement programs. 5. College Station agrees to retain a total of $24,531.00 of the JAG funds. 6. College Station agrees to use $24,531.00 for the purpose of supporting local initiatives, technical assistance, training, personnel, equipment, supplies, contractual support, information technology, research and evaluation activities that will improve or enhance law enforcement programs. 7. The parties to this Agreement do not intend for any third party to obtain a right by virtue of this Agreement. 8. By entering into this Agreement, the parties do not intend to create any obligations express or implied other than those set out herein; further, this Agreement shall not create any rights in any party not a signatory hereto. 9. No party shall have the right to direct or control the conduct of the other parties with respect to the duties and obligations of each party under the terms of this Agreement. 10. Each entity shall ensure that all applicable laws and ordinances have been satisfied. 11. Effective Date and Term. This Agreement shall be effective when signed by the last party who’s signing makes the Agreement fully executed and will remain in full force and effect until September 30, 2016. 2015 Byrne Justice Assistance Grant (JAG) Program Award Page 3 of 7 12. Indemnification Subject to the limitations as to damages and liability under the Texas Tort Claims Act, and without waiving its governmental immunity, each party to this Agreement agrees to hold harmless each other, its governing board, officers, agents and employees for any liability, loss, damages, claims or causes of action caused, or asserted to be caused, directly or indirectly by any other party to this Agreement, or any of its officers, agents or employees as a result of its performance under this Agreement. 13. Consent to Suit. Nothing in this Agreement will be construed as a waiver or relinquishment by any party of its right to claim such exemptions, privileges and immunities as may be provided by law. 14. Invalidity: If any provision of this Agreement shall be held to be invali d, illegal, or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the parties. 15. Written Notice. Unless otherwise specified, written notice shall be deemed to have been duly served if delivered in person or sent by certified mail to the business address as listed herein. CITY OF COLLEGE STATION: City Manager City of College Station P. O. Box 9960 College Station, Texas 77842 CITY OF BRYAN: City Manager City of Bryan 300 South Texas Avenue Bryan, Texas 77803 BRAZOS COUNTY: County Judge Brazos County 300 East 29th Street, Suite 114 Bryan, Texas 77803 16. Entire Agreement. It is understood that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements, or understandings between the parties relating to the subject matter. Nor oral understandings, statements, promises, or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed or terminated orally. No verbal agreement or conversation with any officer, agent, or employee of any party before or after the execution of this Agreement shall affect or modify any of the terms or obligations hereunder. 17. Amendment. No Amendment to this Agreement shall be effective and binding unless and until it is reduced to writing and signed by duly authorized representatives of both parties. 18. Texas Law. This Agreement has been made under and shall be governed by the laws of the State of Texas. 2015 Byrne Justice Assistance Grant (JAG) Program Award Page 4 of 7 19. Place of Performance. Performance and all matters related thereto shall be in Brazos County, Texas, United States of America. 20. Authority to Enter Contract. Each party has the full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations. 21. Waiver. Failure of any party, at any time, to enforce a provision of this Agreement, shall in no way constitute a waiver of that provision, nor in anyway affect the validity of this Agreement, any part hereof, or the right of either party thereafter to enforce each and every provision hereof. No term of this Agreement shall be deemed waived or breach excused unless the waiver shall be in writing and signed by the party claimed to have waived. Furthermore, any consent to or waiver of a breach will not constitute consent to or waiver of or excuse any other different or subsequent breach. 22. Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 23. Assignment. This Agreement and the rights and obligations contained herein may not be assigned by any party without the prior written approval of the other parties to this Agreement. 24. Multiple Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. 2015 Byrne Justice Assistance Grant (JAG) Program Award Page 5 of 7 EXECUTED this the _________ day of _______________, 20 15 by CITY OF BRYAN. CITY OF BRYAN By: _____________________ Jason Bienski Mayor ATTEST: APPROVED AS TO FORM: ______________________ ______________________ Mary Lynn Stratta City Attorney City Secretary ACKNOWLEDGEMENT STATE OF TEXAS § § COUNTY OF BRAZOS § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared, JASON BIENSKI, Mayor of Bryan, Texas, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed it for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______ day of ___________, A.D. 2015. _____________________________ Notary Public, State of Texas My Commission Expires: ____________ 2015 Byrne Justice Assistance Grant (JAG) Program Award Page 6 of 7 EXECUTED this the ______ day of __________________, 20 15 by CITY OF COLLEGE STATION. CITY OF COLLEGE STATION By: ________________________________ Mayor ATTEST: APPROVED: _______________________________________ ______________________________________ City Secretary City Manager ______________________________________ City Attorney ______________________________________ Assistant City Attorney/ CFO 2015 Byrne Justice Assistance Grant (JAG) Program Award Page 7 of 7 EXECUTED this the __________ day of _________________, 20 15 by BRAZOS COUNTY. COUNTY OF BRAZOS By: _______________________________________ DUANE PETERS County Judge ATTEST: APPROVED AS TO FORM: _____________________________________ _______________________________________ Karen McQueen Counsel for Brazos County County Clerk ACKNOWLEDGEMENT STATE OF TEXAS § § COUNTY OF BRAZOS § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared DUANE PETERS, County Judge of Brazos County, Texas, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed it for the purpose and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ________ day of ____________, A.D. 20 15. _______________________________________ Notary Public, State of Texas My Commission Expires: ________________ City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0260 Name:Atmos Resolution Status:Type:Resolution Consent Agenda File created:In control:5/15/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action, and discussion concerning the adoption of a resolution of the City Council of the City of College Station, Texas, approving a negotiated settlement between the Atmos Cities Steering Committee (“ACSC”) and Atmos Energy Corp., Mid-Tex Division, regarding the Company’s 2014 and 2015 rate review mechanism filings and approving a settlement agreement with attached rate tariffs and proof of revenues. Sponsors:Aubrey Nettles Indexes: Code sections: Attachments:Resolution accepting Settlement 05 28 15.pdf Attachments to Resolution.PDF Staff Report for Resolution 05 28 15.pdf Action ByDate Action ResultVer. Presentation, possible action, and discussion concerning the adoption of a resolution of the City Council of the City of College Station, Texas, approving a negotiated settlement between the Atmos Cities Steering Committee ("ACSC") and Atmos Energy Corp., Mid-Tex Division, regarding the Company's 2014 and 2015 rate review mechanism filings and approving a settlement agreement with attached rate tariffs and proof of revenues. Relationship to Strategic Goals: Good Governance Core Services and Infrastructure Recommendation(s):Staff recommends approval of the resolution. Background &Summary:The City,along with other similarly situated cities served by Atmos Energy Corp.,Mid-Tex Division ("Atmos Mid-Tex"or "Company"),is a member of the Atmos Cities Steering Committee ("ACSC").The RRM Tariff was adopted by the City as an alternative to the Gas Reliability Infrastructure Program ("GRIP"),the statutory provision that allows Atmos to bypass the City's rate regulatory authority to increase its rates annually to recover capital investments.In February 2014,Atmos Mid-Tex filed its second annual filing under the Rate Review Mechanism ("RRM")Tariff,seeking an increase of $45.7 million.Although ACSC attempted to reach a settlement with the Company as it had in past years,the wide differences between the Company and ACSC's consultants'recommendations made a compromise impossible. On the recommendation of the ACSC Executive Committee and ACSC's legal counsel,the City in 2014 adopted a Resolution denying the requested rate increase. The Company appealed the City's denial to the Railroad Commission of Texas ("Commission"),and revised its requested increase to $43.8 million.A hearing was held on the Company's appeal on September 3, 2014.On April 28,2015,the Commission's Hearings Examiner issued his Proposal for Decision ("PFD")in the Company's appeal of the City's denial of the 2014 RRM rate increase.This PFD was not favorable to College Station, TX Printed on 5/22/2015Page 1 of 2 powered by Legistar™ File #:15-0260,Version:1 the Company's appeal of the City's denial of the 2014 RRM rate increase.This PFD was not favorable to ACSC, but did recommend a reduction of approximately $860,000 to the Company's adjusted 2014 filing. While the parties were waiting for the PFD from the Hearings Examiner in the appeal of the 2014 RRM filing,on February 27,2015,Atmos Mid-Tex filed with the City another rate increase request under the RRM Tariff,seeking additional revenues in the amount of $28.762 million (total system)or $24.0 million (affected cities).The City worked with ACSC to analyze the schedules and evidence offered by Atmos Mid-Tex to support its 2015 request to increase rates.The Resolution and attached Settlement Agreement and tariffs are the result of negotiation between the Mid-Tex Executive Committee and the Company to resolve issues raised by ACSC during the review and evaluation of Atmos Mid-Tex's filing.The recommended Settlement Agreement also requires Atmos to abate its appeal of the City's rejection of the 2014 RRM rate increase pending approval by all ACSC cities of the Settlement Agreement.The Agreement requires Atmos to give the City the benefit of the adjustments to the 2014 rate increase recommended by the PFD. The Resolution and Settlement tariffs approve rates that will increase the Company's revenues by $65.7 million for the Mid-Tex Rate Division,effective for bills rendered on or after June 1,2015.The monthly residential customer charge will be $18.60.The consumption charge will change from $0.08819 per Ccf to $0.09931 per Ccf.The monthly bill impact for the typical residential customer consuming 60 Ccf will be an increase of $1.14 (about a 1.59%increase in the base bill).The typical commercial customer will see an increase of $2.69 or 0.96%. The ACSC Executive Committee and its designated legal counsel and consultants recommend that all Cities adopt the Resolution approving the negotiated Settlement Agreement resolving both the 2014 and the 2015 RRM filings, and implementing the rate change. Budget &Financial Summary:The monthly bill impact for the typical residential customer consuming 60 Ccf will be an increase of $1.14 (about a 1.59%increase in the base bill).The typical commercial customer will see an increase of $2.69 or 0.96%. Attachments: Resolution Attachments to Resolution Staff Report for Resolution College Station, TX Printed on 5/22/2015Page 2 of 2 powered by Legistar™ 4764616.1 1 RESOLUTION NO. ______________ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, APPROVING A NEGOTIATED SETTLEMENT BETWEEN THE ATMOS CITIES STEERING COMMITTEE (“ACSC”) AND ATMOS ENERGY CORP., MID- TEX DIVISION REGARDING THE COMPANY’S 2014 AND 2015 RATE REVIEW MECHANISM FILINGS; APPROVING A SETTLEMENT AGREEMENT WITH ATTACHED RATE TARIFFS AND PROOF OF REVENUES; DECLARING EXISTING RATES TO BE UNREASONABLE; ADOPTING TARIFFS THAT REFLECT RATE ADJUSTMENTS CONSISTENT WITH THE NEGOTIATED SETTLEMENT; FINDING THE RATES TO BE SET BY THE SETTLEMENT TARIFFS TO BE JUST AND REASONABLE AND IN THE PUBLIC INTEREST; REQUIRING THE COMPANY TO REIMBURSE ACSC’S REASONABLE RATEMAKING EXPENSES; DETERMINING THAT THIS RESOLUTION WAS PASSED IN ACCORDANCE WITH THE REQUIREMENTS OF THE TEXAS OPEN MEETINGS ACT; ADOPTING A SAVINGS CLAUSE; DECLARING AN EFFECTIVE DATE; AND REQUIRING DELIVERY OF THIS RESOLUTION TO THE COMPANY AND THE ACSC’S LEGAL COUNSEL. WHEREAS, the City of College Station, Texas (“City”) is a gas utility customer of Atmos Energy Corp., Mid-Tex Division (“Atmos Mid-Tex” or “Company”), and a regulatory authority with an interest in the rates and charges of Atmos; and WHEREAS, the City is a member of the Atmos Cities Steering Committee (“ACSC”), a coalition of similarly-situated cities served by Atmos Mid-Tex (“ACSC Cities”) that have joined together to facilitate the review of and response to natural gas issues affecting rates charged in the Atmos Mid-Tex service area; and WHEREAS, ACSC and the Company worked collaboratively to develop a new Rate Review Mechanism (“RRM”) tariff that allows for an expedited rate review process by ACSC Cities as a substitute to the Gas Reliability Infrastructure Program (“GRIP”) process instituted by the Legislature, and that will establish rates for the ACSC Cities based on the system-wide cost of serving the Atmos Mid-Tex Division; and WHEREAS, the initial RRM Tariff was in effect for four (4) years; and WHEREAS, ACSC Cities and Atmos Mid-Tex entered into another settlement agreement and revised the RRM Tariff; and WHEREAS, ACSC Cities and Atmos Mid-Tex compromised and reached agreements on the amount of the rate increases to be in effect for the RRM Tariff filings for 2012 and 2013; and WHEREAS, ACSC Cities and Atmos Mid-Tex were unable to reach an agreement on the 2014 RRM Tariff filing, resulting in the ACSC Cities’ rejection of the 2014 RRM filing; and 4764616.1 2 WHEREAS, Atmos Mid-Tex appealed the ACSC Cities’ actions rejecting its 2014 RRM filing to the Railroad Commission of Texas (“Commission”), pursuant to the provisions of the RRM Tariff; and WHEREAS, Atmos Mid-Tex and ACSC litigated the appeal of the 2014 RRM filing at the Commission; and WHEREAS, on February 27, 2015, Atmos Mid-Tex filed its 2015 RRM Tariff filing, requesting to increase natural gas base rates system-wide by $28.762 million; and WHEREAS, ACSC coordinated its review of Atmos Mid-Tex RRM filing through its Executive Committee, assisted by ACSC’s attorneys and consultants, to resolve issues identified in the Company’s RRM filing; and WHEREAS, Atmos Mid-Tex has agreed to withdraw its appeal of ACSC’s rejection of its 2014 RRM Tariff rate increase; and WHEREAS, the Executive Committee, as well as ACSC’s counsel and consultants, recommend that ACSC Cities approve the attached Settlement Agreement (Attachment A to this Resolution) as well as the tariffs attached thereto, resolving both the 2014 and the 2015 RRM Tariff filings, which together will increase the Company’s revenues by $65.7 million over the amount allowed under City-approved rates set in 2013; and WHEREAS, the attached tariffs implementing new rates are consistent with the negotiated Settlement Agreement and are just, reasonable, and in the public interest; and WHEREAS, the RRM Tariff should be renewed for a period of time commencing in 2016 and continuing until the RRM Tariff is suspended by ordinance of the City; and WHEREAS, the RRM Tariff contemplates reimbursement of ACSC’s reasonable expenses associated with RRM applications; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That the findings set forth in this Resolution are hereby in all things approved. PART 2: That the City Council finds that the Settlement Agreement (Attachment A to this Resolution) represents a comprehensive settlement of gas utility rate issues affecting the rates, operations, and services offered by Atmos Mid-Tex within the municipal limits arising from Atmos Mid-Tex’s 2014 and 2015 RRM filings, is in the public interest, and is consistent with the City’s authority under Section 103.001 of the Texas Utilities Code. PART 3: That the existing rates for natural gas service provided by Atmos Mid-Tex are unreasonable. The new tariffs attached hereto and incorporated herein as 4764616.1 3 Attachment C, are just and reasonable, and are designed to allow Atmos Mid-Tex to recover annually an additional $65.7 million in revenue over the amount allowed under currently approved rates, or $21 million over currently-billed rates, as shown in the Proof of Revenues attached hereto and incorporated herein as Attachment B; such tariffs are hereby adopted. PART 4: That the ratemaking treatment for pensions and other post-employment benefits in Atmos’ next RRM filing shall be as set forth on Attachment D, attached hereto and incorporated herein. PART 5: That in an effort to streamline the regulatory review process, the Atmos Mid -Tex RRM Tariff is renewed for a period commencing with the Company’s March 1, 2016 RRM filing for calendar year 2015, effective June 1, 2016, and continuing thereafter until such time as the City adopts an ordinance suspending operation of the RRM Tariff. PART 6: That Atmos Mid-Tex shall reimburse the reasonable ratemaking expenses of the ACSC in processing the Company’s RRM application. PART 7: That to the extent any resolution previously adopted by the Council is inconsistent with this Resolution, it is hereby repealed. PART 8: That the meeting at which this Resolution was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. PART 9: That if any one or more sections or clauses of this Resolution is adjudged to be unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions of this Resolution and the remaining provisions of the Resolution shall be interpreted as if the offending section or clause never existed. PART 10: That consistent with the City ordinance that established the RRM process, this Resolution shall become effective from and after its passage with rates authorized by attached tariffs to be effective for bills rendered on or after June 1, 2015. PART 11: That a copy of this Resolution shall be sent to Atmos Mid-Tex, care of Chris Felan, Vice President of Rates and Regulatory Affairs Mid-Tex Division, Atmos Energy Corporation, 5420 LJB Freeway, Suite 1862, Dallas, Texas 75240, and to Geoffrey Gay, General Counsel to ACSC, at Lloyd Gosselink Rochelle & Townsend, P.C., 816 Congress Avenue, Suite 1900, Austin, Texas 78701. ADOPTED this 28th day of May, 2015. _________________________________ Mayor 4764616.1 4 ATTEST: APPROVED AS TO FORM: _____________________________ __________________________________ City Secretary City Attorney 1 SETTLEMENT AGREEMENT BETWEEN ATMOS ENERGY CORP., MID-TEX DIVISION AND ATMOS CITIES STEERING COMMITTEE WHEREAS, this agreement (“Settlement Agreement”) is entered into by Atmos Energy Corp’s Mid-Tex Division and Atmos Cities Steering Committee (“ACSC”) whose members include the Cities of Abilene, Addison, Allen, Alvarado, Angus, Anna, Argyle, Arlington, Aubrey, Bedford, Bellmead, Benbrook, Beverly Hills, Blossom, Blue Ridge, Bowie, Boyd, Bridgeport, Brownwood, Buffalo, Burkburnett, Burleson, Caddo Mills, Canton, Carrollton, Cedar Hill, Celeste, Celina, Centerville, Cisco, Clarksville, Cleburne, Clyde, College Station, Colleyville, Colorado City, Comanche, Commerce, Coolidge, Coppell, Copperas Cove, Corinth, Corral City, Crandall, Crowley, Dalworthington Gardens, Denison, DeSoto, Duncanville, Eastland, Edgecliff Village, Emory, Ennis, Euless, Everman, Fairview, Farmers Branch, Farmersville, Fate, Flower Mound, Forest Hill, Fort Worth, Frisco, Frost, Gainesville, Garland, Garrett, Grand Prairie, Grapevine, Gunter, Haltom City, Harker Heights, Haskell, Haslet, Hewitt, Highland Park, Highland Village, Honey Grove, Hurst, Hutto, Iowa Park, Irving, Justin, Kaufman, Keene, Keller, Kemp, Kennedale, Kerens, Kerrville, Killeen, Krum, Lake Worth, Lakeside, Lancaster, Lewisville, Lincoln Park, Little Elm, Lorena, Madisonville, Malakoff, Mansfield, McKinney, Melissa, Mesquite, Midlothian, Murphy, Newark, Nocona, North Richland Hills, Northlake, Oakleaf, Ovilla, Palestine, Pantego, Paris, Parker, Pecan Hill, Petrolia, Plano, Ponder, Pottsboro, Prosper, Quitman, Red Oak, Reno (Parker County), Richardson, Richland, Richland Hills, Roanoke, Robinson, Rockwall, Roscoe, Rowlett, Royse City, Sachse, Saginaw, Sansom Park, Seagoville, Sherman, Snyder, Southlake, Springtown, Stamford, Stephenville, Sulphur Springs, Sweetwater, Temple, Terrell, The Colony, Trophy Club, Tyler, University Park, Venus, Vernon, Waco, Watauga, Waxahachie, Westlake, White Settlement, Whitesboro, Wichita Falls, Woodway, and Wylie. WHEREAS, on February 28, 2014, Atmos filed with the ACSC Cities an application, hereinafter referred to as the 2014 RRM filing, to adjust rates pursuant to Rider RRM - Rate Review Mechanism, which were subsequently consolidated into GUD No. 10359 at the Railroad Commission of Texas; and WHEREAS, on February 27, 2015, Atmos filed with the ACSC Cities an application, hereinafter referred to as the 2015 RRM filing, to adjust rates pursuant to Rider RRM - Rate Review Mechanism; and WHEREAS, the Settlement Agreement resolves all issues between Atmos and ACSC (“the Signatories”) regarding the 2014 RRM filing, which is currently pending before the Commission, and the 2015 RRM filing, which is currently pending before the ACSC Cities, in a manner that the Signatories believe is consistent with the public interest, and the Signatories represent diverse interests; and WHEREAS, the Signatories believe that the resolution of the issues raised in the 2014 RRM filing and the 2015 RRM filing can best be accomplished by each ACSC City approving this Settlement Agreement and the rates, terms and conditions reflected in the tariffs attached to this Settlement Agreement as Exhibit A; NOW, THEREFORE, in consideration of the mutual agreements and covenants established herein, the Signatories, through their undersigned representatives, agree to the Attachment A 2 following Settlement Terms as a means of fully resolving all issues between Atmos and the ACSC Cities involving the 2014 RRM filing and 2015 RRM filing: Settlement Terms 1.Upon the execution of this Settlement Agreement, the ACSC Cities will approve an ordinance or resolution to approve the Settlement Agreement and implement the rates, terms and conditions reflected in the tariffs attached to the Settlement Agreement as Exhibit A. (Attachment A to the Ordinance ratifying the Agreement). Said tariffs should allow Atmos to recover annually an additional $65.7 million in revenue over the amount allowed under currently approved rates by implementation of rates shown in the proof of revenues attached as Exhibit B. (Attachment B to the Ordinance ratifying this Agreement). The uniform implementation of gas rates, terms and conditions established by the Settlement Agreement shall be effective for bills rendered on or after June 1, 2015. Consistent with the City’s authority under Section 103.001 of the Texas Utilities Code, the Settlement Agreement represents a comprehensive settlement of gas utility rate issues affecting the rates, operations and services offered by Atmos within the municipal limits of the ACSC Cities arising from Atmos’ 2014 RRM filing and 2015 RRM filing. No refunds of charges billed to customers by Atmos under the RRM in past periods shall be owed or owing. 2.In an effort to streamline the regulatory review process, Atmos and the ACSC Cities have agreed to renew the Rate Review Mechanism (“Rider RRM”) for a period commencing with the Company’s March 1, 2016 filing under this mechanism for the calendar year 2015, effective June 1, 2016, and continuing thereafter until such time as either the ACSC Cities issue an ordinance stating a desire to discontinue the operation of the tariff or Atmos files a Statement of Intent. Atmos and the ACSC Cities further agree that the RRM tariff shall remain in effect until such time as new, final rates are established for Atmos. Upon approval of this Settlement Agreement by the ACSC Cities, Atmos shall file an updated RRM Tariff with each city reflecting the provisions of this agreement. 3.Atmos and the ACSC Cities agree that rate base as of December 31, 2014 in the amount of $1,955,948,256 is just and reasonable and shall be recovered in rates. 4.Atmos and the ACSC Cities agree that a pension and other postemployment benefits balance as of December 31, 2014 in the amount of $18,284,949 is just and reasonable and shall be used as the beginning balance for purposes of determining pension and other postemployment benefits to be recovered in the next RRM filing (Attachment D to the Ordinance ratifying the Agreement). 5.With regard to the treatment of Atmos’ Rule 8.209 regulatory asset under the RRM, Atmos and the ACSC Cities agree to the following with respect to any pending and future RRM filings: a.the capital investment in the Rule 8.209 regulatory asset in the 2014 RRM filing and 2015 RRM filing is reasonable and consistent with the requirements of Rule 8.209; Attachment A 3 b.the classification of projects included in the Rule 8.209 regulatory asset in the 2014 RRM filing and 2015 RRM filing is reasonable and consistent with the requirements of Rule 8.209 and shall serve as a basis for classification of projects in future RRM filings; c.the treatment of blanket replacement projects, system upgrades, relocations, and transmission line replacements in the Rule 8.209 regulatory asset in the 2014 RRM filing and 2015 RRM filing is reasonable and consistent with the requirements of Rule 8.209 and shall be included in future RRM filings. d.the incurred expenses included in the Rule 8.209 regulatory asset in the 2014 RRM and the 2015 RRM are reasonable and consistent with the requirements of Rule 8.209 and shall be included in future RRM filings; e.interest on the Rule 8.209 regulatory asset account shall be calculated using the pre-tax cost of capital most recently approved by the Commission. The use of the pre-tax cost of capital is consistent with Rule 8.209. A return on Rule 8.209 capital investment is only earned once the investment is included in rate base. No change in the Company's calculation of the interest component in its Rule 8.209 regulatory asset accounts is warranted through the period ended May 31, 2015. Beginning June 1, 2015, interest expense shall be calculated monthly using simple interest (i.e.11.49% divided by 12, or approximately 0.96% per month) applied to the total value of the Rule 8.209 asset investment (exclusive of interest) until such time the Rule 8.209 regulatory asset is approved for inclusion in the Company’s rate base. f.While Atmos and the ACSC Cities agree to apply the treatments and methodologies set forth in this paragraph, subsections (a) – (e) in all future RRM filings, the regulatory authority retains its right to disallow any capital investment that is not shown to be prudently incurred, and any expense not shown to be reasonable and necessary, in future RRM filings. g.Atmos and the ACSC Cities acknowledge that their agreement regarding the treatment and methodologies applicable to Rule 8.209 capital investments under the RRM tariff shall not prejudice the right of either party to argue for different treatments or methodologies in a future statement of intent proceeding. 6.Revenues approved pursuant to Paragraph 1 of the Settlement Agreement include reimbursement of rate case expenses owed to the ACSC Cities in connection with the 2014 RRM filing. 7.The Signatories agree that each ACSC city shall approve this Settlement Agreement and adopt an ordinance or resolution to implement for the ACSC Cities the rates, terms, and conditions reflected in the tariffs attached to the Settlement Agreement as Exhibit A. Atmos and ACSC further agree that at such time as all of the ACSC Cities have passed an ordinance or resolution consistent with the Settlement and Atmos has received such ordinance or resolution, Atmos shall withdraw its appeal of the currently pending RRM filing before the Railroad Commission of Texas in connection with the 2014 RRM filing. Attachment A 4 8.Atmos and the ACSC Cities further agree that the express terms of the Rider RRM are supplemental to the filing, notice, regulatory review, or appellate procedural process of the ratemaking provisions of Chapter 104 of the Texas Utilities Code. If the statute requires a mandatory action on behalf of the municipal regulatory authority or Atmos, the parties will follow the provisions of such statute. If the statute allows discretion on behalf of the municipal regulatory authority, the ACSC Cities agree that they shall exercise such discretion in such a way as to implement the provisions of the RRM tariff. If Atmos appeals an action or inaction of an ACSC City regarding an RRM filing to the Railroad Commission, the ACSC Cities agree that they will not oppose the implementation of interim rates or advocate the imposition of a bond by Atmos consistent with the RRM tariff. Atmos agrees that it will make no filings on behalf of its Mid-Tex Division under the provisions of Section 104.301 of the Texas Utilities code while the Rider RRM is in place. In the event that a regulatory authority fails to act or enters an adverse decision regarding the proposed annual RRM adjustment, the Railroad Commission of Texas shall have exclusive appellate jurisdiction, pursuant to the provisions of the Texas Utilities Code, to review the action or inaction of the regulatory authority exercising exclusive original jurisdiction over the RRM request. In addition, the Signatories agree that this Settlement Agreement shall not be construed as a waiver of the ACSC Cities’ right to initiate a show cause proceeding or the Company’s right to file a Statement of Intent under the provisions of the Texas Utilities Code. 9.The Signatories agree that the terms of the Settlement Agreement are interdependent and indivisible, and that if any ACSC city enters an order that is inconsistent with this Settlement Agreement, then any Signatory may withdraw without being deemed to have waived any procedural right or to have taken any substantive position on any fact or issue by virtue of that Signatory’s entry into the Settlement Agreement or its subsequent withdrawal. If any ACSC city rejects this Settlement Agreement, then this Settlement Agreement shall be void ab initio and counsel for the ACSC Cities shall thereafter only take such actions as are in accordance with the Texas Disciplinary Rules of Professional Conduct. 10.The Signatories agree that all negotiations, discussions and conferences related to the Settlement Agreement are privileged, inadmissible, and not relevant to prove any issues associated with Atmos’ 2014 RRM filing and 2015 RRM filing. 11.The Signatories agree that neither this Settlement Agreement nor any oral or written statements made during the course of settlement negotiations may be used for any purpose other than as necessary to support the entry by the ACSC Cities of an ordinance or resolution implementing this Settlement Agreement. 12.The Signatories agree that this Settlement Agreement is binding on each Signatory only for the purpose of settling the issues set forth herein and for no other purposes, and, except to the extent the Settlement Agreement governs a Signatory’s rights and obligations for future periods, this Settlement Agreement shall not be binding or precedential upon a Signatory outside this proceeding. Attachment A 5 13.The Signatories agree that this Settlement Agreement may be executed in multiple counterparts and may be filed with facsimile signatures. Attachment A Attachment A Agreed to this day of May 2015. ATTORNEY FOR ATMOS CITIES STEERING COMMITTEE,WHOSE MEMBERS INCLUDE THE CITIES OF ABILENE,ADDISON,ALLEN,ALVARADO,ANGUS,ANNA, ARGYLE,ARLINGTON,AUBREY,BEDFORD,BELLMEAD,BENBROOK,BEVERLY HILLS,BLOSSOM,BLUE RIDGE,BOWIE,BOYD,BRIDGEPORT,BROWNWOOD, BUFFALO,BURKBURNETT,BURLESON,CADDO MILLS,CANTON,CARROLLTON, CEDAR HILL,CELESTE,CELINA,CENTERVILLE,CISCO,CLARKSVILLE,CLEBURNE, CLYDE,COLLEGE STATION,COLLEYVILLE,COLORADO CITY,COMANCHE, COMMERCE,COOLIDGE,COPPELL,COPPERAS COVE,CORINTH,CORRAL CITY, CRANDALL,CROWLEY,DALWORTHINGTON GARDENS,DENISON,DESOTO, DUNCANVILLE,EASTLAND,EDGECLIFF VILLAGE,EMORY,ENNIS,EULESS, EVERMAN,FAIRVIEW,FARMERS BRANCH,FARMERSVILLE,FATE,FLOWER MOUND,FOREST HILL,FORT WORTH,FRISCO,FROST,GAINESVILLE,GARLAND, GARRETT,GRAND PRAIRIE,GRAPEVINE,GUNTER,HALTOM CITY,HARKER HEIGHTS,HASKELL,HASLET,HEWITT,HIGHLAND PARK,HIGHLAND VILLAGE, HONEY GROVE,HURST,HUTTO,IOWA PARK,IRVING,JUSTIN,KAUFMAN,KEENE, KELLER,KEMP,KENNEDALE,KERENS, KERRVILLE,KILLEEN,KRUM,LAKE WORTH,LAKESIDE,LANCASTER,LEWISVILLE,LINCOLN PARK,LITTLE ELM, LORENA,MADISONVILLE,MALAKOFF,MANSFIELD,MCKINNEY,MELISSA, MESQUITE,MIDLOTHIAN,MURPHY,NEWARK,NOCONA,NORTH RICHLAND HILLS,NORTHLAKE,OAKLEAF,OVILLA,PALESTINE,PANTEGO,PARIS,PARKER, PECAN HILL,PETROLIA,PLANO,PONDER,POTTSBORO,PROSPER,QUITMAN,RED OAK, RENO (PARKER COUNTY), RICHARDSON, RICHLAND, RICHLAND HILLS, ROANOKE,ROBINSON,ROCKWALL,ROSCOE,ROWLETT,ROYSE CITY,SACHSE, SAGINAW,SANSOM PARK,SEAGOVILLE,SHERMAN,SNYDER,SOUTHLAKE, SPRINGTOWN,STAMFORD,STEPHENVILLE,SULPHUR SPRINGS,SWEETWATER, TEMPLE,TERRELL,THE COLONY,TROPHY CLUB,TYLER,UNIVERSITY PARK, VENUS,VERNON,WACO,WATAUGA,WAXAHACHIE,WESTLAKE,WHITE SETTLEMENT,WHITESBORO,WICHITA FALLS,WOODWAY,AND WYLIE. By: 3eoffre>(pay*,Geoffrey * Subject to approval by ACSC City Councils 7 Attachment A MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE:C – COMMERCIAL SALES APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Application Applicable to Commercial Customers for all natural gas provided at one Point of Delivery and measured through one meter and to Industrial Customers with an average annual usage of less than 30,000 Ccf. Type of Service Where service of the type desired by Customer is not already available at the Point of Delivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's monthly bill will be calculated by adding the following Customer and Ccf charges to the amounts due under the riders listed below: Charge Amount Customer Charge per Bill $ 40.00 per month Rider CEE Surcharge $ 0.00 per month1 Total Customer Charge $ 40.00 per month Commodity Charge – All Ccf $ 0.08020 per Ccf Gas Cost Recovery: Plus an amount for gas costs and upstream transportation costs calculated in accordance with Part (a) and Part (b), respectively, of Rider GCR. Weather Normalization Adjustment: Plus or Minus an amount for weather normalization calculated in accordance with Rider WNA. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated municipality. Tax Adjustment: Plus an amount for tax calculated in accordance with Rider TAX. Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s). Agreement An Agreement for Gas Service may be required. Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company’s Tariff for Gas Service. 1 Reference Rider CEE - Conservation And Energy Efficiency as approved in GUD 10170. Surcharge billing effective July 1, 2014. Exhibit AAttachment A MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE: I – INDUSTRIAL SALES APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Application Applicable to Industrial Customers with a maximum daily usage (MDU) of less than 3,500 MMBtu per day for all natural gas provided at one Point of Delivery and measured through one meter. Service for Industrial Customers with an MDU equal to or greater than 3,500 MMBtu per day will be provided at Company's sole option and will require special contract arrangements between Company and Customer. Type of Service Where service of the type desired by Customer is not already available at the Point of Delivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's monthly bill will be calculated by adding the following Customer and MMBtu charges to the amounts due under the riders listed below: Charge Amount Customer Charge per Meter $ 700.00 per month First 0 MMBtu to 1,500 MMBtu $ 0.2937 per MMBtu Next 3,500 MMBtu $ 0.2151 per MMBtu All MMBtu over 5,000 MMBtu $ 0.0461 per MMBtu Gas Cost Recovery: Plus an amount for gas costs and upstream transportation costs calculated in accordance with Part (a) and Part (b), respectively, of Rider GCR. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated municipality. Tax Adjustment: Plus an amount for tax calculated in accordance with Rider TAX. Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s). Curtailment Overpull Fee Upon notification by Company of an event of curtailment or interruption of Customer’s deliveries, Customer will, for each MMBtu delivered in excess of the stated level of curtailment or interruption, pay Company 200% of the midpoint price for the Katy point listed in Platts Gas Daily published for the applicable Gas Day in the table entitled “Daily Price Survey.” Replacement Index In the event the “midpoint” or “common” price for the Katy point listed in Platts Gas Daily in the table entitled “Daily Price Survey” is no longer published, Company will calculate the applicable imbalance fees utilizing a daily price index recognized as authoritative by the natural gas industry and most closely approximating the applicable index. Exhibit AAttachment A MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE: I – INDUSTRIAL SALES APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Agreement An Agreement for Gas Service may be required. Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company’s Tariff for Gas Service. Special Conditions In order to receive service under Rate I, Customer must have the type of meter required by Company. Customer must pay Company all costs associated with the acquisition and installation of the meter. Exhibit AAttachment A MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE:R – RESIDENTIAL SALES APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Application Applicable to Residential Customers for all natural gas provided at one Point of Delivery and measured through one meter. Type of Service Where service of the type desired by Customer is not already available at the Point of Delivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's monthly bill will be calculated by adding the following Customer and Ccf charges to the amounts due under the riders listed below: Charge Amount Customer Charge per Bill $ 18.60 per month Rider CEE Surcharge $ 0.02 per month1 Total Customer Charge $ 18.62 per month Commodity Charge – All Ccf $0.09931 per Ccf Gas Cost Recovery: Plus an amount for gas costs and upstream transportation costs calculated in accordance with Part (a) and Part (b), respectively, of Rider GCR. Weather Normalization Adjustment: Plus or Minus an amount for weather normalization calculated in accordance with Rider WNA. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated municipality. Tax Adjustment: Plus an amount for tax calculated in accordance with Rider TAX. Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s). Agreement An Agreement for Gas Service may be required. Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company’s Tariff for Gas Service. 1Reference Rider CEE - Conservation And Energy Efficiency as approved in GUD 10170. Surcharge billing effective July 1, 2014. Exhibit AAttachment A MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE: T – TRANSPORTATION APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Application Applicable, in the event that Company has entered into a Transportation Agreement, to a customer directly connected to the Atmos Energy Corp., Mid-Tex Division Distribution System (Customer) for the transportation of all natural gas supplied by Customer or Customer’s agent at one Point of Delivery for use in Customer's facility. Type of Service Where service of the type desired by Customer is not already available at the Point of Delivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's bill will be calculated by adding the following Customer and MMBtu charges to the amounts and quantities due under the riders listed below: Charge Amount Customer Charge per Meter $ 700.00 per month First 0 MMBtu to 1,500 MMBtu $ 0.2937 per MMBtu Next 3,500 MMBtu $ 0.2151 per MMBtu All MMBtu over 5,000 MMBtu $ 0.0461 per MMBtu Upstream Transportation Cost Recovery: Plus an amount for upstream transportation costs in accordance with Part (b) of Rider GCR. Retention Adjustment: Plus a quantity of gas as calculated in accordance with Rider RA. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated municipality. Tax Adjustment: Plus an amount for tax calculated in accordance with Rider TAX. Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s). Imbalance Fees All fees charged to Customer under this Rate Schedule will be charged based on the quantities determined under the applicable Transportation Agreement and quantities will not be aggregated for any Customer with multiple Transportation Agreements for the purposes of such fees. Monthly Imbalance Fees Customer shall pay Company the greater of (i) $0.10 per MMBtu, or (ii) 150% of the difference per MMBtu between the highest and lowest “midpoint” price for the Katy point listed in Platts Gas Daily in the table entitled “Daily Price Survey” during such month, for the MMBtu of Customer’s monthly Cumulative Imbalance, as defined in the applicable Transportation Agreement, at the end of each month that exceeds 10% of Customer’s receipt quantities for the month. Exhibit AAttachment A MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE: T – TRANSPORTATION APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Curtailment Overpull Fee Upon notification by Company of an event of curtailment or interruption of Customer’s deliveries, Customer will, for each MMBtu delivered in excess of the stated level of curtailment or interruption, pay Company 200% of the midpoint price for the Katy point listed in Platts Gas Daily published for the applicable Gas Day in the table entitled “Daily Price Survey.” Replacement Index In the event the “midpoint” or “common” price for the Katy point listed in Platts Gas Daily in the table entitled “Daily Price Survey” is no longer published, Company will calculate the applicable imbalance fees utilizing a daily price index recognized as authoritative by the natural gas industry and most closely approximating the applicable index. Agreement A transportation agreement is required. Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company’s Tariff for Gas Service. Special Conditions In order to receive service under Rate T, customer must have the type of meter required by Company. Customer must pay Company all costs associated with the acquisition and installation of the meter. Exhibit AAttachment A MID-TEX DIVISION ATMOS ENERGY CORPORATION RIDER:WNA – WEATHER NORMALIZATION ADJUSTMENT APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 11/01/2015 PAGE: Provisions for Adjustment The Commodity Charge per Ccf (100 cubic feet) for gas service set forth in any Rate Schedules utilized by the cities of the Mid-Tex Division service area for determining normalized winter period revenues shall be adjusted by an amount hereinafter described, which amount is referred to as the "Weather Normalization Adjustment." The Weather Normalization Adjustment shall apply to all temperature sensitive residential and commercial bills based on meters read during the revenue months of November through April. The five regional weather stations are Abilene, Austin, Dallas, Waco, and Wichita Falls. Computation of Weather Normalization Adjustment The Weather Normalization Adjustment Factor shall be computed to the nearest one-hundredth cent per Ccf by the following formula: (HSFi x (NDD-ADD) ) WNAFi =Ri (BLi +(HSFi x ADD) ) Where i =any particular Rate Schedule or billing classification within any such particular Rate Schedule that contains more than one billing classification WNAFi = Weather Normalization Adjustment Factor for the ith rate schedule or classification expressed in cents per Ccf Ri =Commodity Charge rate of temperature sensitive sales for the ith schedule or classification. HSFi =heat sensitive factor for the ith schedule or classification divided by the average bill count in that class NDD =billing cycle normal heating degree days calculated as the simple ten-year average of actual heating degree days. ADD =billing cycle actual heating degree days. Bli =base load sales for the ith schedule or classification divided by the average bill count in that class The Weather Normalization Adjustment for the jth customer in ith rate schedule is computed as: WNAi =WNAFi x qij Where qij is the relevant sales quantity for the jth customer in ith rate schedule. Exhibit AAttachment A MID-TEX DIVISION ATMOS ENERGY CORPORATION RIDER:WNA – WEATHER NORMALIZATION ADJUSTMENT APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 11/01/2015 PAGE: Base Use/Heat Use Factors Residential Commercial Base use Heat use Base use Heat use Weather Station Ccf Ccf/HDD Ccf Ccf/HDD Abilene 10.22 0.1404 98.80 0.6372 Austin 11.59 0.1443 213.62 0.7922 Dallas 14.12 0.2000 208.11 0.9085 Waco 9.74 0.1387 130.27 0.6351 Wichita Falls 11.79 0.1476 122.35 0.5772 Weather Normalization Adjustment (WNA) Report On or before June 1 of each year, the company posts on its website at atmosenergy.com/mtx-wna, in Excel format, a Weather Normalization Adjustment (WNA) Report to show how the company calculated its WNAs factor during the preceding winter season. Additionally, on or before June 1 of each year, the company files one hard copy and a Excel version of the WNA Report with the Railroad Commission of Texas' Gas Services Division, addressed to the Director of that Division. Exhibit AAttachment A 1 2 3 4 5 6 7 8 9 10 11 12 17 ATMOS ENERGY CORP.,MID-TEX DIVISION PROOF OF REVENUES AND PROPOSED TARIFF STRUCTURE TEST YEAR ENDING DECEMBER 31,2014 (a)(b) Proposed Change In Rates: Proposed Change In Rates without Revenue Related Taxes: Residential Commercial Industrial and Transportation Net Revenue Requirements GUD No.10170 Revenue Requirements $338,431,486 $84,223,622 $11,490,316 $434,145,424 (c) $21,066,527 $19,757,254 Allocations 77.95% 19.40% 2.65% (d)(e) Schedule A Ln 1 divided by factor on WP_F-5.1 Per GUD 10170 Final Order Per GUD 10170 Final Order Per GUD 10170 Final Order 18 19' Rate Class Current Proposed Change Proposed Rates Proposed Change In Revenues (f) Proposed Revenues (g) Proposed Rates with Rate Case Expenses 20 Residential Base Charge $18.20 $0.36 $18.56 $6,351,350 $327,447,398 $18.60 21 Residential Consumption Charge $0.08819 $0.01112 $0.09931 $9,049,383 $80,817,829 $0.09931 22 Commercial Base Charge $38.50 $1.37 $39.87 $2,000,584 $58,221,364 $40.00 23 Commercial Consumption Charge $0.07681 $0.00339 $0.08020 $1,834,968 $43,411,339 $0.08020 24 I&T Base Charge $675.00 $22.35 $697.35 $220,192 $6,870,292 $700.00 25 I&T Consumption Charge Tier 1 MMBTU $0.2807 $0.0130 $0.2937 $142,055 $3,209,350 $0.2937 26 I&T Consumption Charge Tier 2 MMBTU $0.2056 $0.0095 $0.2151 $117,051 $2,650,282 $0.2151 27 I&T Consumption Charge Tier 3 MMBTU $0.0441 $0.0020 $0.0461 $42,703 $984,314 $0.0461 28 $19,758,287 $523,612,169 29 Data Sources: GUD10170 FINAL.xIsm Exhibit B Attachment A 1 2 3 4 5 6 7 8 9 10 11 12 17 ATMOS ENERGY CORP.,MID-TEX DIVISION PROOF OF REVENUES AND PROPOSED TARIFF STRUCTURE TEST YEAR ENDING DECEMBER 31,2014 (a)(b) Proposed Change In Rates: Proposed Change In Rates without Revenue Related Taxes: Residential Commercial Industrial and Transportation Net Revenue Requirements GUD No.10170 Revenue Requirements $338,431,486 $84,223,622 $11,490,316 $434,145,424 (c) $21,066,527 $19,757,254 Allocations 77.95% 19.40% 2.65% (d)(e) Schedule A Ln 1 divided by factor on WP_F-5.1 Per GUD 10170 Final Order Per GUD 10170 Final Order Per GUD 10170 Final Order 18 19' Rate Class Current Proposed Change Proposed Rates Proposed Change In Revenues (f) Proposed Revenues (g) Proposed Rates with Rate Case Expenses 20 Residential Base Charge $18.20 $0.36 $18.56 $6,351,350 $327,447,398 $18.60 21 Residential Consumption Charge $0.08819 $0.01112 $0.09931 $9,049,383 $80,817,829 $0.09931 22 Commercial Base Charge $38.50 $1.37 $39.87 $2,000,584 $58,221,364 $40.00 23 Commercial Consumption Charge $0.07681 $0.00339 $0.08020 $1,834,968 $43,411,339 $0.08020 24 I&T Base Charge $675.00 $22.35 $697.35 $220,192 $6,870,292 $700.00 25 I&T Consumption Charge Tier 1 MMBTU $0.2807 $0.0130 $0.2937 $142,055 $3,209,350 $0.2937 26 I&T Consumption Charge Tier 2 MMBTU $0.2056 $0.0095 $0.2151 $117,051 $2,650,282 $0.2151 27 I&T Consumption Charge Tier 3 MMBTU $0.0441 $0.0020 $0.0461 $42,703 $984,314 $0.0461 28 $19,758,287 $523,612,169 29 Data Sources: GUD10170 FINAL.xIsm Attachment B MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE:C – COMMERCIAL SALES APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Application Applicable to Commercial Customers for all natural gas provided at one Point of Delivery and measured through one meter and to Industrial Customers with an average annual usage of less than 30,000 Ccf. Type of Service Where service of the type desired by Customer is not already available at the Point of Delivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's monthly bill will be calculated by adding the following Customer and Ccf charges to the amounts due under the riders listed below: Charge Amount Customer Charge per Bill $ 40.00 per month Rider CEE Surcharge $ 0.00 per month1 Total Customer Charge $ 40.00 per month Commodity Charge – All Ccf $ 0.08020 per Ccf Gas Cost Recovery: Plus an amount for gas costs and upstream transportation costs calculated in accordance with Part (a) and Part (b), respectively, of Rider GCR. Weather Normalization Adjustment: Plus or Minus an amount for weather normalization calculated in accordance with Rider WNA. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated municipality. Tax Adjustment: Plus an amount for tax calculated in accordance with Rider TAX. Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s). Agreement An Agreement for Gas Service may be required. Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company’s Tariff for Gas Service. 1 Reference Rider CEE - Conservation And Energy Efficiency as approved in GUD 10170. Surcharge billing effective July 1, 2014. Attachment C MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE: I – INDUSTRIAL SALES APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Application Applicable to Industrial Customers with a maximum daily usage (MDU) of less than 3,500 MMBtu per day for all natural gas provided at one Point of Delivery and measured through one meter. Service for Industrial Customers with an MDU equal to or greater than 3,500 MMBtu per day will be provided at Company's sole option and will require special contract arrangements between Company and Customer. Type of Service Where service of the type desired by Customer is not already available at the Point of Delivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's monthly bill will be calculated by adding the following Customer and MMBtu charges to the amounts due under the riders listed below: Charge Amount Customer Charge per Meter $ 700.00 per month First 0 MMBtu to 1,500 MMBtu $ 0.2937 per MMBtu Next 3,500 MMBtu $ 0.2151 per MMBtu All MMBtu over 5,000 MMBtu $ 0.0461 per MMBtu Gas Cost Recovery: Plus an amount for gas costs and upstream transportation costs calculated in accordance with Part (a) and Part (b), respectively, of Rider GCR. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated municipality. Tax Adjustment: Plus an amount for tax calculated in accordance with Rider TAX. Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s). Curtailment Overpull Fee Upon notification by Company of an event of curtailment or interruption of Customer’s deliveries, Customer will, for each MMBtu delivered in excess of the stated level of curtailment or interruption, pay Company 200% of the midpoint price for the Katy point listed in Platts Gas Daily published for the applicable Gas Day in the table entitled “Daily Price Survey.” Replacement Index In the event the “midpoint” or “common” price for the Katy point listed in Platts Gas Daily in the table entitled “Daily Price Survey” is no longer published, Company will calculate the applicable imbalance fees utilizing a daily price index recognized as authoritative by the natural gas industry and most closely approximating the applicable index. Attachment C MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE: I – INDUSTRIAL SALES APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Agreement An Agreement for Gas Service may be required. Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company’s Tariff for Gas Service. Special Conditions In order to receive service under Rate I, Customer must have the type of meter required by Company. Customer must pay Company all costs associated with the acquisition and installation of the meter. Attachment C MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE:R – RESIDENTIAL SALES APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Application Applicable to Residential Customers for all natural gas provided at one Point of Delivery and measured through one meter. Type of Service Where service of the type desired by Customer is not already available at the Point of Delivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's monthly bill will be calculated by adding the following Customer and Ccf charges to the amounts due under the riders listed below: Charge Amount Customer Charge per Bill $ 18.60 per month Rider CEE Surcharge $ 0.02 per month1 Total Customer Charge $ 18.62 per month Commodity Charge – All Ccf $0.09931 per Ccf Gas Cost Recovery: Plus an amount for gas costs and upstream transportation costs calculated in accordance with Part (a) and Part (b), respectively, of Rider GCR. Weather Normalization Adjustment: Plus or Minus an amount for weather normalization calculated in accordance with Rider WNA. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated municipality. Tax Adjustment: Plus an amount for tax calculated in accordance with Rider TAX. Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s). Agreement An Agreement for Gas Service may be required. Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company’s Tariff for Gas Service. 1Reference Rider CEE - Conservation And Energy Efficiency as approved in GUD 10170. Surcharge billing effective July 1, 2014. Attachment C MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE: T – TRANSPORTATION APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Application Applicable, in the event that Company has entered into a Transportation Agreement, to a customer directly connected to the Atmos Energy Corp., Mid-Tex Division Distribution System (Customer) for the transportation of all natural gas supplied by Customer or Customer’s agent at one Point of Delivery for use in Customer's facility. Type of Service Where service of the type desired by Customer is not already available at the Point of Delivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's bill will be calculated by adding the following Customer and MMBtu charges to the amounts and quantities due under the riders listed below: Charge Amount Customer Charge per Meter $ 700.00 per month First 0 MMBtu to 1,500 MMBtu $ 0.2937 per MMBtu Next 3,500 MMBtu $ 0.2151 per MMBtu All MMBtu over 5,000 MMBtu $ 0.0461 per MMBtu Upstream Transportation Cost Recovery: Plus an amount for upstream transportation costs in accordance with Part (b) of Rider GCR. Retention Adjustment: Plus a quantity of gas as calculated in accordance with Rider RA. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated municipality. Tax Adjustment: Plus an amount for tax calculated in accordance with Rider TAX. Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s). Imbalance Fees All fees charged to Customer under this Rate Schedule will be charged based on the quantities determined under the applicable Transportation Agreement and quantities will not be aggregated for any Customer with multiple Transportation Agreements for the purposes of such fees. Monthly Imbalance Fees Customer shall pay Company the greater of (i) $0.10 per MMBtu, or (ii) 150% of the difference per MMBtu between the highest and lowest “midpoint” price for the Katy point listed in Platts Gas Daily in the table entitled “Daily Price Survey” during such month, for the MMBtu of Customer’s monthly Cumulative Imbalance, as defined in the applicable Transportation Agreement, at the end of each month that exceeds 10% of Customer’s receipt quantities for the month. Attachment C MID-TEX DIVISION RRC Tariff No: ATMOS ENERGY CORPORATION RATE SCHEDULE: T – TRANSPORTATION APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 06/01/2015 PAGE: Curtailment Overpull Fee Upon notification by Company of an event of curtailment or interruption of Customer’s deliveries, Customer will, for each MMBtu delivered in excess of the stated level of curtailment or interruption, pay Company 200% of the midpoint price for the Katy point listed in Platts Gas Daily published for the applicable Gas Day in the table entitled “Daily Price Survey.” Replacement Index In the event the “midpoint” or “common” price for the Katy point listed in Platts Gas Daily in the table entitled “Daily Price Survey” is no longer published, Company will calculate the applicable imbalance fees utilizing a daily price index recognized as authoritative by the natural gas industry and most closely approximating the applicable index. Agreement A transportation agreement is required. Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company’s Tariff for Gas Service. Special Conditions In order to receive service under Rate T, customer must have the type of meter required by Company. Customer must pay Company all costs associated with the acquisition and installation of the meter. Attachment C MID-TEX DIVISION ATMOS ENERGY CORPORATION RIDER:WNA – WEATHER NORMALIZATION ADJUSTMENT APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 11/01/2015 PAGE: Provisions for Adjustment The Commodity Charge per Ccf (100 cubic feet) for gas service set forth in any Rate Schedules utilized by the cities of the Mid-Tex Division service area for determining normalized winter period revenues shall be adjusted by an amount hereinafter described, which amount is referred to as the "Weather Normalization Adjustment." The Weather Normalization Adjustment shall apply to all temperature sensitive residential and commercial bills based on meters read during the revenue months of November through April. The five regional weather stations are Abilene, Austin, Dallas, Waco, and Wichita Falls. Computation of Weather Normalization Adjustment The Weather Normalization Adjustment Factor shall be computed to the nearest one-hundredth cent per Ccf by the following formula: (HSFi x (NDD-ADD) ) WNAFi =Ri (BLi +(HSFi x ADD) ) Where i =any particular Rate Schedule or billing classification within any such particular Rate Schedule that contains more than one billing classification WNAFi = Weather Normalization Adjustment Factor for the ith rate schedule or classification expressed in cents per Ccf Ri =Commodity Charge rate of temperature sensitive sales for the ith schedule or classification. HSFi =heat sensitive factor for the ith schedule or classification divided by the average bill count in that class NDD =billing cycle normal heating degree days calculated as the simple ten-year average of actual heating degree days. ADD =billing cycle actual heating degree days. Bli =base load sales for the ith schedule or classification divided by the average bill count in that class The Weather Normalization Adjustment for the jth customer in ith rate schedule is computed as: WNAi =WNAFi x qij Where qij is the relevant sales quantity for the jth customer in ith rate schedule. Attachment C MID-TEX DIVISION ATMOS ENERGY CORPORATION RIDER:WNA – WEATHER NORMALIZATION ADJUSTMENT APPLICABLE TO:ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE:Bills Rendered on or after 11/01/2015 PAGE: Base Use/Heat Use Factors Residential Commercial Base use Heat use Base use Heat use Weather Station Ccf Ccf/HDD Ccf Ccf/HDD Abilene 10.22 0.1404 98.80 0.6372 Austin 11.59 0.1443 213.62 0.7922 Dallas 14.12 0.2000 208.11 0.9085 Waco 9.74 0.1387 130.27 0.6351 Wichita Falls 11.79 0.1476 122.35 0.5772 Weather Normalization Adjustment (WNA) Report On or before June 1 of each year, the company posts on its website at atmosenergy.com/mtx-wna, in Excel format, a Weather Normalization Adjustment (WNA) Report to show how the company calculated its WNAs factor during the preceding winter season. Additionally, on or before June 1 of each year, the company files one hard copy and a Excel version of the WNA Report with the Railroad Commission of Texas' Gas Services Division, addressed to the Director of that Division. Attachment C File Date: February 27, 2015 ATTACHMENT D Line No.Description Pension Account Plan ("PAP") Post-Retirement Medical Plan ("FAS 106") Pension Account Plan ("PAP") Supplemental Executive Benefit Plan ("SERP") Post-Retirement Medical Plan ("FAS 106") Adjustment Total (a)(b)(c)(d)(e)(f)(g) 1 Fiscal Year 2014 Towers Watson Report (excluding Removed Cost Centers)6,388,826$ 4,542,023$ 9,481,670$ 165,758$ 8,736,645$ 2 Allocation to Mid-Tex 46.26%46.26%71.70%100.00%71.70% 3 FY14 Towers Watson Benefit Costs (excluding Removed Cost Centers) Allocated to MTX (Ln 1 x Ln 2)2,955,304$ 2,101,021$ 6,798,531$ 165,758$ 6,264,334$ 4 O&M and Capital Allocation Factor 100.00%100.00%100.00%100.00%100.00% 5 FY14 Towers Watson Benefit Costs To Approve (excluding Removed Cost Centers) (Ln 3 x Ln 4)2,955,304$ 2,101,021$ 6,798,531$ 165,758$ 6,264,334$ 18,284,949$ 6 7 8 Summary of Costs to Approve: 9 10 Total Pension Account Plan ("PAP")2,955,304$ 6,798,531$ 9,753,835$ 11 Total Post-Retirement Medical Plan ("FAS 106")2,101,021$ 6,264,334$ 8,365,356 12 Total Supplemental Executive Retirement Plan ("SERP")165,758$ 165,758 13 Total (Ln 10 + Ln 11 + Ln 12)2,955,304$ 2,101,021$ 6,798,531$ 165,758$ 6,264,334$ 18,284,949$ 14 15 16 O&M Expense Factor 95.82%95.82%43.03%21.00%43.03% 17 18 Expense Portion (Ln 13 x Ln 16)2,831,859$ 2,013,260$ 2,925,600$ 34,809$ 2,695,721$ 10,501,250$ 19 20 Capital Factor 4.18%4.18%56.97%79.00%56.97% 21 22 Capital Portion (Ln 13 x Ln 20)123,445$ 87,761$ 3,872,930$ 130,949$ 3,568,614$ 7,783,699$ 23 24 Total (Ln 18 + Ln 22)2,955,304$ 2,101,021$ 6,798,531$ 165,758$ 6,264,334$ 18,284,949$ ATMOS ENERGY CORP., MID-TEX DIVISION PENSIONS AND RETIREE MEDICAL BENEFITS FOR CITIES APPROVAL TEST YEAR ENDING DECEMBER 31, 2014 Shared Services Mid-Tex Direct WP_F-2.3.1 Page 1 of 1 4764612.1 1 STAFF REPORT The City, along with other similarly situated cities served by Atmos Energy Corp., Mid-Tex Division (“Atmos Mid-Tex” or “Company”), is a member of the Atmos Cities Steering Committee (“ACSC”). The RRM Tariff was adopted by the City as an alternative to the Gas Reliability Infrastructure Program (“GRIP”), the statutory provision that allows Atmos to bypass the City’s rate regulatory authority to increase its rates annually to recover capital investments. In February 2014, Atmos Mid-Tex filed its second annual filing under the Rate Review Mechanism (“RRM”) Tariff, seeking an increase of $45.7 million. Although ACSC attempted to reach a settlement with the Company as it had in past years, the wide differences between the Company and ACSC’s consultants’ recommendations made a compromise impossible. On the recommendation of the ACSC Executive Committee and ACSC’s legal counsel, the City in 2014 adopted a Resolution denying the requested rate increase. The Company appealed the City’s denial to the Railroad Commission of Texas (“Commission”), and revised its requested increase to $43.8 million. A hearing was held on the Company’s appeal on September 3, 2014. On April 28, 2015, the Commission’s Hearings Examiner issued his Proposal for Decision (“PFD”) in the Company’s appeal of the City’s denial of the 2014 RRM rate increase. This PFD was not favorable to ACSC, but did recommend a reduction of approximately $860,000 to the Company’s adjusted 2014 filing. While the parties were waiting for the PFD from the Hearings Examiner in the appeal of the 2014 RRM filing, on February 27, 2015, Atmos Mid-Tex filed with the City another rate increase request under the RRM Tariff, seeking additional revenues in the amount of $28.762 million (total system) or $24.0 million (affected cities). The City worked with ACSC to analyze the schedules and evidence offered by Atmos Mid-Tex to support its 2015 request to increase rates. The Resolution and attached Settlement Agreement and tariffs are the result of negotiation between the Mid-Tex Executive Committee and the Company to resolve issues raised by ACSC during the review and evaluation of Atmos Mid-Tex’s filing. The recommended Settlement Agreement also requires Atmos to abate its appeal of the City’s rejection of the 2014 RRM rate increase pending approval by all ACSC cities of the Settlement Agreement. The Agreement requires Atmos to give the City the benefit of the adjustments to the 2014 rate increase recommended by the PFD. The Resolution and Settlement tariffs approve rates that will increase the Company’s revenues by $65.7 million for the Mid-Tex Rate Division, effective for bills rendered on or after June 1, 2015. The monthly residential customer charge will be $18.60. The consumption charge will change from $0.08819 per Ccf to $0.09931 per Ccf. The monthly bill impact for the typical residential customer consuming 60 Ccf will be an increase of $1.14 (about a 1.59% increase in the base bill). The typical commercial customer will see an increase of $2.69 or 0.96%. The ACSC Executive Committee and its designated legal counsel and consultants recommend that all Cities adopt the Resolution approving the negotiated Settlement Agreement resolving both the 2014 and the 2015 RRM filings, and implementing the rate change. RRM Background: The RRM tariff was originally approved by ACSC Cities as part of the settlement agreement to resolve the Atmos Mid-Tex 2007 system-wide rate filing at the Railroad Commission. In early 4764612.1 2 2013, the City adopted a renewed RRM tariff for an additional five years. This is the third RRM filing under the renewed tariff. The RRM tariff and the process implementing that tariff were created collaboratively by ACSC and Atmos Mid-Tex as an alternative to the legislatively- authorized GRIP surcharge process. ACSC has opposed GRIP because it constitutes piecemeal ratemaking, does not allow any review of the reasonableness of Atmos’ expenditures, and does not allow participation by cities or recovery of cities’ rate case expenses. In contrast, the RRM process has allowed for a more comprehensive rate review and annual adjustment as a substitute for GRIP filings. ACSC’s consultants have calculated that had Atmos filed its 2015 case under the GRIP provisions, it would have received additional revenues from ratepayers of approximately $10 million. Purpose of the Resolution: The purpose of the Resolution is to approve the Settlement Agreement and the resulting rate change under the RRM tariff. As a result of the negotiations, the Executive Committee was able to reduce the Company’s requested $28.8 million rate increase for Mid-Tex cities to $21,962,784. When added to the settlement of the 2014 RRM filing and the adjustments recommended by the PFD, the Company will receive total additional annual revenues of $65.7 million. Because the 2014 rates have been in effect since June 1, 2014, the increase to currently-billed rates is $21 million. Approval of the Resolution will result in rates that implement an increase in Atmos Mid-Tex’s revenues effective June 1, 2015. City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0267 Name:Lick Creek Hike & Bike Trail Construction Contract Status:Type:Contract Consent Agenda File created:In control:5/19/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action, and discussion regarding construction contract 15-109 with Kieschnick General Contractors, Inc., in the amount of $3,187,342 for a hike and bike trail from Creek View Park to Lick Creek Park. Sponsors:Donald Harmon Indexes: Code sections: Attachments:Lick Creek Hike & Bike Trail - Project Location Map.pdf Bid Tab.pdf Action ByDate Action ResultVer. Presentation,possible action,and discussion regarding construction contract 15-109 with Kieschnick General Contractors,Inc.,in the amount of $3,187,342 for a hike and bike trail from Creek View Park to Lick Creek Park. Relationship to Strategic Goals: ·Core Services and Infrastructure Recommendation(s): Staff recommends approval of the construction contract. Summary:The Lick Creek Hike and Bike Trail project will construct a trail along Lick Creek between Creek View Park and Lick Creek Park.This project is on the City's Bikeway Master Plan and was ranked as a high priority project by the Hike and Bike Task Force. The project will consist of on-street improvements in the area west of SH 6, a multi-use path between SH 6 and WD Fitch, and along Pebble Creek Parkway connecting Creek View Park to Lick Creek Park. Budget & Financial Summary: A total of $4,410,000 is budgeted for this project. Funds in the amount of $487,988 has been expended or committed to date leaving a balance of $3,922,012 for construction and related expenditures. Attachments: 1. Contract No. 15-109 (on file with the City Secretary) 2. Bid Tab 3. Project Location Map College Station, TX Printed on 5/22/2015Page 1 of 1 powered by Legistar™ SH 6 BARRON RDEAGLE AVLONGMIRE DR ALEXANDRIA AV NEWPORT LNGRAHAM RDFRONTAGE 6 RD DECATUR DR VICTORIA AV KERNSTOWN LNPOMEL DRREATTA LNDOVE LANDING AVCARDINAL LNR E NEELN MARKHAM LNS T A RLI N G DRTURTLE DOVE TRSOUTHERN PLANTATION DRB RID L E C T FRONT ROYAL DRWHITEWING LNSKYLINE CTSTONY CREEK LN UNNAMED8295BI RMI NGHA M RD CHESAPEAKELNNORFOLK CTROANOKE CTWINDFREE DR HALIFAX DRCRYSTAL DOVE AVBRIDLE GATE DRD O V E T R REMINGTON CTPURPLE MA R TI N C V MULLINS LODOVE HOLLO W LN SPRING MIS T D R DELREY DRCRESTEDPOINTDRFINCASTLE LOPORTSMOUTH CTPUFFIN WY DOVE CROSSING LN MARKHAM CTBAYWOOD LNB RID L E T R AIL S C T W INDM EA DOWSDR HUNTER CREEK DR MULLINS CTEMERALD DOVE AVDANVILLE CTSCOFFIELD DRTYLER CTBRACEY CTDANVILLE LNPAMPLIN CTWHITE DOVE TR HA W KOWLCV BAYWOOD CTTRANQUIL PA T H DRREHEL DR BECKLEY CTORIOLECT HARRISONBURGLNELKTONCTCHESAPEAKE CTSTRASBURG CRHOPEWELL CTHAYESVILLE CTMALLORY CTCOEBURN CTMYSTIC DOVE WY LA KESHORECRSOUTHERNPLANTATIONP A R R O T C V SPARTANBURG CTCREEKSIDECR GOLD FINCH CRLAKESHORE CT ALEXANDRIA AV FRONTAGE 6 RD SH 6 ² 0 375 750 1,125 1,500187.5 Feet Project Location MapLick Creek Hike & Bike Trail Legend Project Locati on SH 6 FRONTAGE 6 RD ROCK PRAIRIE RD LAKEWAY DRBRADLEY RDOLDENLNARRINGTON RD DECATUR DR HARRIS DRBIRDPONDRDONYXDRPARKVIEW DRQUAL I T Y CRRITCHEY RDAGATE DRTIFFANY TR WINDFREE DR ONRAMP6 S P E A R MANDRCREAGOR LNWILLIAMDFITCHPWOFFRA M P 6 HUNTER CREEK DR UNNAMED8295AL EX A N D RIAAVSAPPHIREDRLAPI S CTC A RTERLAKE D R VENTURE DRTRUMPETER S W ANDROLDARRINGTONRDSHOALCREEKDR RUDD Y D U C KDRS T A NDREWSDR ROC K Y V I S T A D RSPRING GARDEN DRROCKY MEADOWS DR PEBBLE CREE K PW CAS T LEROC K PWUNNAMED8296 CANDACE CTSLICE CT COLONIALCR SAPPHIRE CTFLYINGACECRCOLD SPRING DRAGATE CTROCK SPRING CTYELLOW TANGER CT HEATH DRWOODLAND HILLS BL FRONTAGE 6 RD SH 6 ² 0 710 1,420 2,130 2,840355Feet Project Location MapLick Creek Hike & Bike Trail Legend Project Locati on ST ANDREWS DRROYALAD E L A D E D R SPEARMAN DRLAKE W A Y DR S H 6 WILLIAM D FITCH PWP E B B LE C R E E K P WAUGUSTA CRFIRESTONE DRQUALITY CR M I S S I O N H ILLSDRWINGEDFOOTDRSHOALCREEKDR HOGAN ALLEYLAPI S CTCASC A D E S D R BERR Y C R E E K P IN E V A L L E Y D R CONGRESSIONALDRROCK PRAIRIE RD PLUM H O L L O W D RPARKVIEW DRFR O NTA G E 6 R D MUIRFIELDVILLAGEGATEWAY BLU N N A M E D7915 H O L S T O N H IL L S D R S Y C A M O R E HILLS D R PRESTWICKCTQ U A K E R RIDGEDRU N N A M E D7918 R I V I E R A C TPUTTER CTDRIVER CTSLICECT ST O N E B RIA R C R IN G LE W O O D C T COLONIALCR C O R A L R ID G E TECHNOLOGY WY12th MAN CRW O O D A L L C T M AID S T O N E C T C A S C A D E S C T B A LLY B U NIO N CT V A L L E Y B R OOKCR CAMAR G O C TC O N G R E S SIO N A L C T C O M M O N W E A LT H C T C R Y S T A L D O W N S C T H A R B O U R T O WNCTB ELLERIVE BEND D R KINGSMILL CTJUPI TER HI LLS CTSOUTHERN HILLS CTSPYGLASS CT H O O K C T F O R E C T S H 6 S T ANDREWSDR² 0 470 940 1,410 1,880235Feet Project Location MapLick Creek Hike & Bike Trail Legend Project Locati on City of College Station - Purchasing DivisionBid Tabulation for #15-026"Lick Creek Hike and Bike Trail"Open Date: Monday, February 9, 2015 @ 2:00 p.m.ITEM QTY UNIT DESCRIPTION UNIT PRICETOTAL PRICE UNIT PRICE TOTAL PRICE UNIT PRICETOTAL PRICE UNIT PRICETOTAL PRICE11LSInsurance and Mobilization for all material, equipment and labor to complete the project (not to exceed 5% of construction)$125,000.00 $125,000.00 $150,000.00 $150,000.00 $190,000.00 $190,000.00 $205,000.00 $205,000.002 1,600 SY Demolition of existing 4' walks (along Eagle and Longmire) (approx. 3,525 L.F.)$10.00 $16,000.00 $15.00 $24,000.00 $4.50 $7,200.00 $25.85 $41,360.0031,817 SYDemolition of existing walks in Segment C, from Wm. Fitch to Lick Creek Park$10.00 $18,170.00 $18.00 $32,706.00 $5.50 $9,993.50 $25.85 $46,969.454655 LFDemolition of existing curb & gutter in Segments A & B$8.00 $5,240.00 $5.00 $3,275.00 $6.00 $3,930.00 $11.50 $7,532.50520,600 LFSilt Fence$1.60 $32,960.00 $1.80 $37,080.00 $3.00 $61,800.00 $3.25 $66,950.00615 EAInlet protection$75.00 $1,125.00 $70.00 $1,050.00 $15.00 $225.00 $115.00 $1,725.007260 EATree protection$140.00 $36,400.00 $60.00 $15,600.00 $150.00 $39,000.00 $650.00 $169,000.00836 EATree removal$400.00 $14,400.00 $100.00 $3,600.00 $200.00 $7,200.00 $975.00 $35,100.0091LSIrrigation system salvage$5,000.00 $5,000.00 $15,000.00 $15,000.00 $5,000.00 $5,000.00 $10,000.00 $10,000.00101LSIrrigation repair$3,500.00 $3,500.00 $10,000.00 $10,000.00 $5,000.00 $5,000.00 $10,000.00 $10,000.00118.50 ACClearing and Grubbing for Trail Alignment (30' trail corridor)$4,250.00 $36,125.00 $5,000.00 $42,500.00 $3,500.00 $29,750.00 $8,280.00 $70,380.00121LSErosion Control (allowance)$4,500.00 $4,500.00 $10,000.00 $10,000.00 $1,000.00 $1,000.00 $25,000.00 $25,000.00131LSRip-Rap Removal (At William D. Fitch)$3,000.00 $3,000.00 $10,000.00 $10,000.00 $2,000.00 $2,000.00 $14,085.00 $14,085.0014130 LFFence Removal$20.00 $2,600.00 $20.00 $2,600.00 $10.00 $1,300.00 $17.25 $2,242.501511,830 SYPaving (Gravel) Removal$1.50 $17,745.00 $1.00 $11,830.00 $4.50 $53,235.00 $4.00 $47,320.0016430 SY6' Wide Concrete Trail - Eagle Ave. (5" Thick Concrete w/ 6" lime base and excavation)$55.00 $23,650.00 $75.00 $32,250.00 $62.00 $26,660.00 $82.15 $35,324.50172,120 SY8' Wide Concrete Trail - Longmire Drive (5" Thick Concrete w/ 6" lime base and excavation)$52.00 $110,240.00 $70.00 $148,400.00 $83.00 $175,960.00 $82.15 $174,158.0018150 SY6" Thick Paving for Maintenance Access - Longmire Drive$55.00 $8,250.00 $80.00 $12,000.00 $57.00 $8,550.00 $94.50 $14,175.0019360 LFConcrete curb & gutter$28.00 $10,080.00 $15.00 $5,400.00 $15.00 $5,400.00 $28.75 $10,350.002019 EABarrier Free Ramps (complete installed, including landings, etc.)$500.00 $9,500.00 $1,000.00 $19,000.00 $1,100.00 $20,900.00 $2,213.75 $42,061.25GENERAL$219,241.00HARDSCAPE - SIDEWALK (Eagle and Longmire - approx. 3,525 LF)HARDSCAPE - SIDEWALK (Eagle and Longmire) - TOTAL$150,000.00SITE PREPARATIONSITE PREPARATION - TOTAL $196,765.00Larry Young Paving, Inc.(College Station, TX)Kieschnick General Contractors, Inc.(College Station, TX)GENERAL - TOTAL $125,000.00$161,720.00 $217,050.00Dudley Construction, Ltd.(College Station, TX)$190,000.00$226,633.50$237,470.00Acklam Construction Company, Ltd.(College Station, TX)$205,000.00$547,664.45$276,068.75Page 1 of 4 City of College Station - Purchasing DivisionBid Tabulation for #15-026"Lick Creek Hike and Bike Trail"Open Date: Monday, February 9, 2015 @ 2:00 p.m.ITEM QTY UNIT DESCRIPTION UNIT PRICETOTAL PRICE UNIT PRICE TOTAL PRICE UNIT PRICETOTAL PRICE UNIT PRICETOTAL PRICELarry Young Paving, Inc.(College Station, TX)Kieschnick General Contractors, Inc.(College Station, TX)Dudley Construction, Ltd.(College Station, TX)Acklam Construction Company, Ltd.(College Station, TX)2116,550 SY10' Wide Concrete Trail (5" Thick Concrete w/ 6" lime base and excavation)$54.83 $907,436.50 $80.00 $1,324,000.00 $106.00 $1,754,300.00 $91.20 $1,509,360.00221,888 SY6" Paving for Maintenance Access$59.00 $111,392.00 $80.00 $151,040.00 $57.00 $107,616.00 $95.95 $181,153.602310,200 SFWoodland Wildflower Seed Mix$0.10 $1,020.00 $0.10 $1,020.00 $0.20 $2,040.00 $0.27 $2,754.00248EABarrier Free Ramps$500.00 $4,000.00 $1,000.00 $8,000.00 $1,100.00 $8,800.00 $1,460.50 $11,684.00257EAConcrete Drainage Flume$1,560.00 $10,920.00 $1,000.00 $7,000.00 $1,500.00 $10,500.00 $2,875.00 $20,125.002628 LFConcrete Drainage Culvert (3'x5')$640.00 $17,920.00 $750.00 $21,000.00 $1,000.00 $28,000.00 $1,150.00 $32,200.00271,400 LFRetaining Wall$101.00 $141,400.00 $100.00 $140,000.00 $125.00 $175,000.00 $240.00 $336,000.002816 EATrail Regulatory Signs$350.00 $5,600.00 $550.00 $8,800.00 $650.00 $10,400.00 $190.00 $3,040.0029340 LFTrail Safety Railing$150.00 $51,000.00 $150.00 $51,000.00 $450.00 $153,000.00 $200.00 $68,000.0030230 LFInstall curb & gutter$28.00 $6,440.00 $25.00 $5,750.00 $15.00 $3,450.00 $28.75 $6,612.503141 EALandscape Boulders$350.00 $14,350.00 $360.00 $14,760.00 $250.00 $10,250.00 $250.00 $10,250.0032100 SYTrailhead Concrete Paving (5" Thick Concrete w/ 6" lime base and excavation)$52.00 $5,200.00 $65.00 $6,500.00 $62.00 $6,200.00 $91.00 $9,100.003321 SYTrailhead Paver Border$180.00 $3,780.00 $100.00 $2,100.00 $110.00 $2,310.00 $97.75 $2,052.753430 SYTrailhead Limestone Paving$180.00 $5,400.00 $160.00 $4,800.00 $90.00 $2,700.00 $135.00 $4,050.00352EATrailhead Bench$1,330.00 $2,660.00 $1,250.00 $2,500.00 $1,500.00 $3,000.00 $1,175.00 $2,350.00362EATrailhead Bicycle Rack$375.00 $750.00 $300.00 $600.00 $368.00 $736.00 $235.00 $470.00371EATrailhead Trash Receptacle$1,320.00 $1,320.00 $1,050.00 $1,050.00 $1,250.00 $1,250.00 $1,085.00 $1,085.00381EATrailhead Gateway Monument$12,500.00 $12,500.00 $10,000.00 $10,000.00 $10,000.00 $10,000.00 $19,400.00 $19,400.00391EATrailhead Interpretative Signage$7,500.00 $7,500.00 $2,000.00 $2,000.00 $8,756.00 $8,756.00 $4,000.00 $4,000.00HARDSCAPE - MAIN TRAIL (approx. 16,230 LF)HARDSCAPE - MAIN TRAIL - TOTAL $1,271,478.50 $1,732,370.00TRAILHEAD (Creek View Park)TRAILHEAD (Creek View Park) - TOTAL $39,110.00 $29,550.00$2,263,356.00$34,952.00$2,181,179.10$42,507.75Page 2 of 4 City of College Station - Purchasing DivisionBid Tabulation for #15-026"Lick Creek Hike and Bike Trail"Open Date: Monday, February 9, 2015 @ 2:00 p.m.ITEM QTY UNIT DESCRIPTION UNIT PRICETOTAL PRICE UNIT PRICE TOTAL PRICE UNIT PRICETOTAL PRICE UNIT PRICETOTAL PRICELarry Young Paving, Inc.(College Station, TX)Kieschnick General Contractors, Inc.(College Station, TX)Dudley Construction, Ltd.(College Station, TX)Acklam Construction Company, Ltd.(College Station, TX)40171 SYTrailhead Concrete Paving (5" Thick Concrete w/ 6" lime base and excavation)$52.00 $8,892.00 $65.00 $11,115.00 $62.00 $10,602.00 $91.00 $15,561.004126 SYTrailhead Paver Border$65.00 $1,690.00 $100.00 $2,600.00 $110.00 $2,860.00 $97.75 $2,541.504253 SYTrailhead Limestone Paving$180.00 $9,540.00 $160.00 $8,480.00 $90.00 $4,770.00 $135.00 $7,155.00431EATrailhead Bench$1,330.00 $1,330.00 $1,250.00 $1,250.00 $1,500.00 $1,500.00 $1,175.00 $1,175.00442EATrailhead Bicycle Rack$375.00 $750.00 $300.00 $600.00 $368.00 $736.00 $235.00 $470.00451EATrailhead Trash Receptacle$1,320.00 $1,320.00 $1,050.00 $1,050.00 $1,250.00 $1,250.00 $1,085.00 $1,085.00461EATrailhead Gateway Monument$12,500.00 $12,500.00 $10,000.00 $10,000.00 $9,754.00 $9,754.00 $19,400.00 $19,400.00472EATrailhead Interpretative Signage$7,500.00 $15,000.00 $2,000.00 $4,000.00 $8,756.00 $17,512.00 $4,000.00 $8,000.00481LSLick Creek Park Sign Relocation$12,500.00 $12,500.00 $10,000.00 $10,000.00 $5,000.00 $5,000.00 $2,000.00 $2,000.00496EATrailhead Fence Columns$1,100.00 $6,600.00 $2,500.00 $15,000.00 $4,000.00 $24,000.00 $2,800.00 $16,800.0050102 LFTrailhead Fence$75.00 $7,650.00 $100.00 $10,200.00 $100.00 $10,200.00 $160.00 $16,320.005112 LFStone Seatwall$275.00 $3,300.00 $300.00 $3,600.00 $250.00 $3,000.00 $480.00 $5,760.0052380 SYTrailhead Concrete Paving (5" Thick Concrete w/ 6" lime base and excavation)$52.00 $19,760.00 $65.00 $24,700.00 $62.00 $23,560.00 $91.00 $34,580.00531EATrailhead Gateway Monument$14,000.00 $14,000.00 $10,000.00 $10,000.00 $9,754.00 $9,754.00 $17,400.00 $17,400.005450 LFTrailhead Railing$125.00 $6,250.00 $103.00 $5,150.00 $400.00 $20,000.00 $250.00 $12,500.00551,260 SYRest Area Concrete Paving (5" Thick Concrete w/ 6" lime base and excavation)$52.00 $65,520.00 $65.00 $81,900.00 $62.00 $78,120.00 $91.00 $114,660.0056255 SFRest Area Limestone Paving$20.00 $5,100.00 $160.00 $40,800.00 $90.00 $22,950.00 $135.00 $34,425.005739 SYRest Area Paver Border$180.00 $7,020.00 $100.00 $3,900.00 $110.00 $4,290.00 $97.75 $3,812.25586EARest Area Bench$1,330.00 $7,980.00 $1,250.00 $7,500.00 $1,500.00 $9,000.00 $1,175.00 $7,050.005936 LFStone Seat Wall$275.00 $9,900.00 $300.00 $10,800.00 $250.00 $9,000.00 $600.00 $21,600.00606EARest Area Bicycle Rack$375.00 $2,250.00 $300.00 $1,800.00 $368.00 $2,208.00 $235.00 $1,410.00613EARest Area Trash Receptacle$1,320.00 $3,960.00 $1,050.00 $3,150.00 $1,250.00 $3,750.00 $1,085.00 $3,255.00623EASteel Shade Structure$23,000.00 $69,000.00 $27,500.00 $82,500.00 $40,000.00 $120,000.00 $24,000.00 $72,000.00639EAStone Columns$1,250.00 $11,250.00 $1,250.00 $11,250.00 $6,800.00 $61,200.00 $7,400.00 $66,600.00643EARest Area Interpretative Signage$7,300.00 $21,900.00 $2,000.00 $6,000.00 $8,756.00 $26,268.00 $4,000.00 $12,000.00TRAILHEAD (Lick Creek Park) - TOTAL $77,895.00TRAILHEAD (Lick Creek Park)TRAILHEAD (State Highway 6) - TOTAL $40,010.00 $39,850.00$81,072.00TRAILHEAD (State Highway 6)REST AREAS/OVERLOOK (3 total)REST AREAS/OVERLOOK - TOTAL $203,880.00 $249,600.00$91,184.00$53,314.00$336,786.00$96,267.50$64,480.00$336,812.25Page 3 of 4 City of College Station - Purchasing DivisionBid Tabulation for #15-026"Lick Creek Hike and Bike Trail"Open Date: Monday, February 9, 2015 @ 2:00 p.m.ITEM QTY UNIT DESCRIPTION UNIT PRICETOTAL PRICE UNIT PRICE TOTAL PRICE UNIT PRICETOTAL PRICE UNIT PRICETOTAL PRICELarry Young Paving, Inc.(College Station, TX)Kieschnick General Contractors, Inc.(College Station, TX)Dudley Construction, Ltd.(College Station, TX)Acklam Construction Company, Ltd.(College Station, TX)654EAMinor Creek Crossings (complete in place)$3,250.00 $13,000.00 $7,500.00 $30,000.00 $5,000.00 $20,000.00 $9,215.00 $36,860.006690 LFPedestrian Bridge (90 linear ft.)$150,000.00 $13,500,000.00 $1,665.00 $149,850.00 $1,500.00 $135,000.00 $1,667.00 $150,030.00672EABridge Abutments$17,000.00 $34,000.00 $7,500.00 $15,000.00 $10,000.00 $20,000.00 $8,625.00 $17,250.0068125 LFRoadway Underpass (including trail, retaining walls and railing)$900.00 $112,500.00 $1,200.00 $150,000.00 $1,640.00 $205,000.00 $800.00 $100,000.0069250 SYConcrete Paving (5" Thick Concrete w/ 6" lime base and excavation)$52.00 $13,000.00 $200.00 $50,000.00 $124.00 $31,000.00 $91.00 $22,750.00701,575 SFPreCast Concrete Pavers$9.50 $14,962.50 $9.00 $14,175.00 $12.00 $18,900.00 $16.00 $25,200.007125 EAWayfinding/Distance Marker Signage$1,800.00 $45,000.00 $1,250.00 $31,250.00 $2,300.00 $57,500.00 $2,100.00 $52,500.00728EARegulatory Traffic Sign$560.00 $4,480.00 $550.00 $4,400.00 $680.00 $5,440.00 $335.00 $2,680.007312 EAPedestrian Crosswalk Striping$1,080.00 $12,960.00 $1,100.00 $13,200.00 $654.00 $7,848.00 $640.00 $7,680.00741EABurr Oak (30 Gal.)$525.00 $525.00 $540.00 $540.00 $320.00 $320.00 $330.00 $330.00752EAPecan (30 Gal.)$525.00 $1,050.00 $540.00 $1,080.00 $368.00 $736.00 $330.00 $660.00762EAGolden Rain Tree (15Gal.)$350.00 $700.00 $350.00 $700.00 $204.00 $408.00 $280.00 $560.007726,140 SYHydroseed (Bermuda)$0.41 $10,717.40 $0.40 $10,456.00 $0.50 $13,070.00 $0.52 $13,592.80781,135 SYWoodland Wildflower Seed Mix$0.75 $851.25 $1.00 $1,135.00 $1.80 $2,043.00 $2.35 $2,667.25LANDSCAPING - TOTALBASE BID - TOTAL$3,187,342.00WAYFINDING/DISTANCE MARKERS - TOTAL $72,962.50 $95,425.00REGULATORY SIGNS AND RELATEDREGULARTY SIGNS - TOTAL $17,440.00 $17,600.00WAYFINDING/DISTANCE MARKERS NOTES:$13,843.65 $13,911.00LANDSCAPING$15,882,781.65BRIDGES AND UNDERPASSESBRIDGES AND UNDERPASSES - TOTALLarry Young Paving$13,659,500.00 $344,850.00 $380,000.00$107,400.00$13,288.00$16,577.00$3,950,960.50$304,140.00$100,450.00$10,360.00$17,810.05$4,182,739.85»The total for Hardscape-Sidewalk (Eagle and Longmire) was miscalculated. The highlighted total above is correct.»The total for Bid Item 65 and the Bridges and Underpasses Total were miscalculated. The highlighted totals above are correct.»The Base Bid Total was miscalculated. The highlighted total above is correct.»Quantities for Bid Items 28 and 72 were changed by Addendum 5. Addendum 5 bid forms were not used to prepare the bid; therefore, the extended bid amounts and the section totals were miscalculated. The highlighted amounts above are correct.»Bid Item 66 (Pedestrian Bridge) required a unit bid price for 90 LF. It appears a lump sum bid price was entered which cannot be changed per Texas purchasing statutes. Unit price prevails.»The totals for Trailhead (Lick Creek Park), Landscaping and Total Base Bid were miscalculated. The highlighted totals above are correct.Acklam ConstructionPage 4 of 4 City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0262 Name:ExteNet License Agreement and Pole Attachment Agreement Status:Type:Agreement Consent Agenda File created:In control:5/18/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action and discussion on a license agreement and pole attachment agreement with ExteNet for the installation and operation of a Distributed Antenna System (DAS). Sponsors:Aubrey Nettles Indexes: Code sections: Attachments:College Station DAS System License Agreement-ExteNet_Final_5-19-2015.pdf College Station Pole Attachment License Agreement-ExteNet_Final_5-19-2015.pdf Action ByDate Action ResultVer. Presentation, possible action and discussion on a license agreement and pole attachment agreement with ExteNet for the installation and operation of a Distributed Antenna System (DAS). Relationship to Strategic Goals: 1. Core Services and Infrastructure Recommendation(s):Staff recommends approval of the agreements. Summary:A Distributed Antenna System,or DAS,is a network of spatially separated antenna nodes connected to a common source via fiber optic cables to provide wireless service within a geographic area. In many instances,these antennas are connected to existing utility poles or street lights,and require additional ground-mounted infrastructure to support the operation of the antennas. A DAS License Agreement and Pole Attachment License Agreement was developed to allow this service provider,ExteNet,to utilize city right-of-way and open space on existing utility poles or street light poles to accommodate the DAS infrastructure. Budget & Financial Summary: N/A Reviewed and Approved by Legal:Yes Attachments: 1. DAS License Agreement 2. Pole Attachment License Agreement College Station, TX Printed on 5/22/2015Page 1 of 1 powered by Legistar™ Contract Number: ______________ City of College Station DAS License Agreement - ExteNet Systems, Inc. DISTRIBUTED ANTENNA SYSTEM (“DAS”) LICENSE AGREEMENT THIS AGREEMENT (“License Agreement”) is made by and between the City of College Station, a municipal corporation and home-rule municipality of the State of Texas located at 1101 Texas Avenue South, College Station, Texas 77840 (“CITY” or “Licensor”) and ExteNet Systems, Inc., a Delaware corporation with its principal place of business located at 3030 Warrenville Road, Suite 340, Lisle, Illinois, 60532 (“LICENSEE” or “Company” or “ExteNet”), each referred to as a “Party” or jointly as the “Parties”. RECITALS WHEREAS, ExteNet, 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 City of College Station, Texas; and WHEREAS, the CITY owns and/or controls and regulates public street rights-of-way and public utility easements within the boundaries of the City of College Station, Texas; and WHEREAS, ExteNet desires to install and operate a DAS Network within the boundaries of the CITY, subject to the requirements of this License Agreement and pursuant to CITY ordinances and state and federal laws; and WHEREAS, the installation, maintenance, and operation of ExteNet’s DAS Network on public rights-of-way will be performed in a manner consistent with all applicable CITY ordinances and any other applicable regulations; and WHEREAS, ExteNet has entered into one or more Pole Attachment Agreements with the CITY for existing poles that serve the CITY’s utility and street light network for the purpose of installing its DAS Network on CITY poles erected on or about public rights-of-way; and WHEREAS, installation of ExteNet's DAS Network is in the public interest and will further the convenience of the business community and citizens of the City of College Station, Texas; and WHEREAS, the CITY has excess capacity on certain existing CITY-owned electrical utility and street light poles and is willing to grant ExteNet a non-exclusive license to install, maintain, operate, repair and replace its DAS Network or micro or small cell installations on certain existing CITY-owned utility and street light poles within discrete segments of the rights- of-way subject to the requirements of this License Agreement and the rights granted to LICENSEE herein, and pursuant to permits issued by the CITY’s City Engineer (“City Engineer”); 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 CITY to regulate its Rights-of-Way. 2 City of College Station DAS License Agreement - ExteNet Systems, Inc. WHEREAS, the License Agreement is consistent with Section 54.205 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 CITY hereby sets forth rights, duties and obligations of ExteNet 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 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 “City Engineer” means the CITY’s City Engineer. 1.4 “DAS Network” or “Distributed Antenna System Network” or “small cell network” means the LICENSEE’s network of spatially separated antenna nodes which, as to size, will not exceed three feet in height, two feet in width and one foot in depth, located in the CITY’s Public Rights- of-Way, on currently existing CITY distribution and street light poles or poles installed by CITY due to electric delivery system needs or other CITY poles installed for existing system needs and not installed for purposes of a DAS or small cell network, and as identified in Exhibit "A" and connected to a common source via fiber optic cable providing DAS wireless service within a geographic area, and shall not include any additional poles not owned by CITY and further shall not include any equipment in excess of or not described in Exhibit “A.” DAS Network does not mean a cellular tower as defined by CITY ordinance or federal or state law. 1.5 “Facility” or “Facilities” shall mean each antenna site, space or equipment used by LICENSEE for the purpose of providing services. 1.6 “Gross Revenues” means all revenues received by LICENSEE from the operation of the Network utilizing existing CITY poles in the Rights-of-Way, 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 26.461 and 3 City of College Station DAS License Agreement - ExteNet Systems, Inc. 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) any reimbursements or pass-through from or contributions by Third Party to LICENSEE: i. for utility charges, taxes and other pass-through expenses, or ii. in connection with work performed or equipment installed by LICENSEE; (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) “upfront 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 servic es that actually qualify as access lines under Texas PUC Substantive Rule 26.461 shall be excluded from Gross Revenues. The obligation to include revenues from wholesale or retail customers ends when their contracts expire or terminate. 1.7 “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 CITY. 1.8 “Network Facilities” means LICENSEE’s communications equipment and Facilities necessary to serve the DAS Network, including fiber optic cables and copper wiring, currently existing CITY poles, or other physical devices used to provide DAS service and similar furnishing and improvements located within, or above the Public Rights-of-Way, but not including any separate poles or antennas. 1.9 “Node” means a remote communications point of a distributed antenna system (DAS) or small cell system consisting of at least one antenna for the transmission and reception of a wireless service provider’s RF signals and one or more of the following ground mounted or attached to a utility pole or other support structure: equipment cabinets, amplifiers, receivers, battery back-up units, meters, power supply cabinets, disconnect switches, and/or related couplers, cables, wires, conduit, brackets, through bolts, and other equipment and hardware necessary for the operation of the DAS or small cell network and/or provision of wireless or wireline telecommunications service. 4 City of College Station DAS License Agreement - ExteNet Systems, Inc. 1.10 “Projects” means Aerial Projects and Underground Projects, collectively, as those terms are defined in this License Agreement. 1.11 “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 public utility easements, as the same may now or hereafter exist within the boundaries of the CITY and within the CITY’s jurisdiction now or hereafter-held by the CITY or over which the CITY exercises any rights of management control, but only as necessary to build the DAS Network as identified in Exhibit “A,” and for purposes of this License are discrete areas allowed with permission of the CITY’s City Engineer or designee. The term includes permitted Texas Department of Transportation (TxDOT) right-of-way. Facilities placed in TxDOT right-of-way also require a permit from TxDOT. 1.12 “Supply Space” means the area on any given utility pole, above the Communications Space, that is reserved for the placement of electric supply lines, electrical equipment, and other CITY facilities. The term Supply Space has the equivalent meaning as that used in the Electrical Code. Licensee may not place any attachments, including, but not limited to, antennas or other Facilities, in the Supply Space. 1.13 “Texas PUC” means the Public Utility Commission of Texas. 1.14 “Third Party” means any person or entity that is not a Party to this License Agreement. 1.15 “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 PERMISSION 2.1 The CITY hereby grants LICENSEE a non-exclusive license to use and occupy that portion of the Rights-of-Way as shown in Exhibit “A,” limited to locations only with permission of the CITY’s City Engineer or designee, to locate, erect, install, construct, replace, reconstruct, repair, relocate, maintain and operate its DAS or small cell 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 CITY’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 CITY’s Rights-of-Way Ordinance, the CITY’s applicable engineering design standards and criteria, and as such ordinances and standards may hereafter be amended. TxDOT Right-of-Way is not controlled by the CITY, and therefore any facilities proposed in TxDOT Right -of-Way will require appropriate TxDOT approvals and permits, whether underground or overhead. 2.2 The LICENSEE’s license to use and occupy the Public Rights-of-Way shall not be exclusive and the CITY reserves the right to grant a similar use of same to itself or any person or ent ity at any time during the period of this License Agreement. 5 City of College Station DAS License Agreement - ExteNet Systems, Inc. 2.3 The LICENSEE shall not have the ability to expand its DAS Network or small cell 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 City Council. This License Agreement authorizes LICENSEE 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 CITY’s Rights-of-Way Ordinance, the CITY’s applicable engineering design standards and criteria, and as such ordinances and standards may hereafter be amended. 2.4 Consistent with the CITY's Rights-of-Way Ordinance and the CITY’s applicable engineering design standards and criteria, as amended, the CITY’s City Engineer 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 LICENSE GRANTED UNDER THIS LICENSE AGREEMENT, LICENSEE WAIVES ALL CLAIMS, DEMANDS, CAUSES OF ACTION, AND RIGHTS IT MAY ASSERT AGAINST THE CITY INCLUDING BUT NOT LIMITED TO ANY LOSS, DAMAGE, OR INJURY TO ANY EQUIPMENT OR ANY LOSS OR DEGRADATION OF SERVICES. 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 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 This License Agreement only concerns the right to use the public rights-of-way. LICENSEE understands that some utility or street light Poles are located on dedicated easements over private property that, by their terms, restrict the use of the easement to CITY for the sole purpose of electric distribution or transmission. Nothing in this License Agreement shall compel CITY to extend any property rights it does not have. Nothing in this License Agreement and no action by CITY shall be construed to offer, grant or approve any right or license to use such easement or to affix an attachment, Facility, Network Facility, or Node to a Pole within such easement without the consent of the owner of the property to which the easement is appurtenant, unless otherwise allowed by law. CITY has no obligation to expand or obtain rights in such easement on LICENSEE’S behalf. It is the sole obligation of LICENSEE to obtain the necessary consent or additional easement rights, if any, at LICENSEE’S own expense. 2.8 LICENSEE shall provide sufficient documentation, including diagrams, maps, drawings or surveys for each proposed Licensed Area. The provided documentation shall depict the boundaries of the public rights-of-way, any existing equipment or improvements in the immediate vicinity, and all of LICENSEE’S proposed attachments, equipment, and improvements in the proposed Licensed Area. 6 City of College Station DAS License Agreement - ExteNet Systems, Inc. 2.9 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 CITY, 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 CITY. 2.10 In case of conflict between this LICENSEE and the CITY’s Right-of-Way ordinance, as amended, the Right-of-Way ordinance shall prevail. 2.11 LICENSEE’s DAS Network or Distributed Antenna System Network or small cell network will not exceed, per facility or node, the dimensions established in the Construction Guidelines (Pole Attachment Specifications) contained in Exhibit “B”, located in the CITY’s Public Rights- of-Way, on currently existing CITY distribution and street light poles or poles installed by CITY due to electric delivery needs or other CITY pole installed for existing system needs and not installed for purposes of a DAS or small cell network, and as identified in Exhibit "A" and connected to a common source via fiber optic cable providing DAS wireless service within a geographic area, and shall not include any additional poles not owned by CITY and further shall not include any equipment in excess of or not described in Exhibit “A.” DAS Network does not mean a cellular tower as defined by CITY ordinance or federal or state law. If a Node is locate at a street light pole, only the antenna and necessary vertical fiber, coax, and conduit shall be attached to the street light pole. 2.12 LICENSEE shall use commercially reasonable means in selecting and upgrading Facility components and give selection preferences to smaller Facility components that reduce the footprint size of the Facilities and Nodes. The Parties agree on the importance of maintaining the aesthetics, appearance, orderly development, and functionality of public Rights-of-Way. 2.13 The color of the Facilities and Nodes shall be a neutral color consistent with support structures and existing equipment, subject to review and approval by the CITY’s City Engineer. 2.14 Each Facility or Node shall display the name of the company owning the node and an identification number. 2.15 LICENSEE’s Facilities, DAS or small cell Network or equipment shall be installed in a safe manner, meeting all Codes and in a manner that will not interfere with the use of the streets or sidewalk by the travelling public. Sight distance and sight lines for pedestrian and vehicular traffic shall be maintained at all times. 2.16 Each pole mounted Node or Facility, excluding electrical meters, electrical panel or disconnect, vertical conduit containing fiber or coax running up a pole to an antenna or Node, shall be at least thirteen feet (13’) above street or alle y grade. If that height is not possible, LICENSEE shall either: (a) not install the Node or Facility, (b) relocate the Node or Facility to a suitable pole or location (as approved by the CITY’s City Engineer), or (c) ask the CITY’s City Engineer for an exception and place the Node at a height or pole location approved by the 7 City of College Station DAS License Agreement - ExteNet Systems, Inc. CITY’s City Engineer. Installation of antennas, Nodes or other Facilities is prohibited in or above the Supply Space. 2.17 If new conduit is installed by LICENSEE, LICENSEE agrees to reserve and make available space or innerduct of at least two inches (2”) for City use. ARTICLE 3 TERM 3.1 Initial Term. The initial term of this License Agreement shall commence upon the date of final execution by both parties and, unless earlier terminated pursuant to any provision hereof, shall expire five (5) years after the Effective Date. 3.2 Renewal Term(s). Upon application by the LICENSEE, this License Agreement may be renewed for up to four (4) additional successive three (3) year terms by the CITY 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 City 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 City Manager that the LICENSEE’s performance is satisfactory, including payment of all fees, each renewal, subject to the agreed re-negotiation of compensation and other terms, may be granted for one period of three (3) years. c. CITY shall not unreasonably withhold any Renewal Term of the License Agre ement 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 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 the Right-of-Way Ordinance and all other applicable law, and provided further that this License Agreement may be terminated at any time during the Hold Over Period by CITY or LICENSEE upon sixty (60) days written notice to the other. 8 City of College Station DAS License Agreement - ExteNet Systems, Inc. ARTICLE 5 EARLY TERMINATION 5.1 LICENSEE or CITY shall have the right to terminate this License Agreement early, without any further right or obligation to the other party by giving the other party ninety (90) days advance written notice and by removing the DAS Network and all Network Facilities from public Rights-of-Way within ninety (90) days of the effective date of the notice. 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 CITY’s City Engineer an application describing the Network Facilities it proposes to be abandoned and the date of the proposed abandonment. CITY 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 CITY’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 CITY be considered the property of the CITY and subject to the CITY’s use, modification, demolition, removal or conveyance without any further compensation or benefit therefor being provided to LICENSEE. If CITY 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 CITY 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 CITY. 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 li censed by and through the Texas PUC and the CITY. 6.4 In lieu of removing conduits installed by CITY 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 CITY to own such Facilities in public Rights-of- Way, or may abandon such conduits in place and transfer ownership to CITY. 6.5 If LICENSEE 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 CITY be deemed the owner or responsible party for any property abandoned in place by LICENSEE save and except only properly installed fiber optic cable belonging to the CITY. 9 City of College Station DAS License Agreement - ExteNet Systems, Inc. ARTICLE 7 FEES AND PAYMENTS 7.1 To compensate the CITY for the use and occupancy of the Public Rights-of-Way on CITY poles, LICENSEE shall be required to pay the CITY the following fees: (a) Fees. (1) LICENSEE shall pay a minimum base annual fee of one thousand, two hundred dollars ($1,200.00) per each Facility or Node. The minimum base annual fee includes one (1) tenant, provider, or telecommunications carrier using the Facility or Node. The minimum base annual fee shall be increased by nine hundred dollars ($900.00) per each Facility or Node for each additional tenant, provider, or telecommunications carrier using the Facility or Node. The minimum annual amount may be renegotiated at the end of the Initial Term or at the end of each subsequent Renewal Term. LICENSEE shall submit to the CITY a list of the Facilities and the locations of the Facilities when the system is built out and by December 31, 2015 and each subsequent year until the system is completely built out. LICENSEE shall update the build out list within sixty (60) days of any changes. (2) The LICENSEE shall pay the CITY for the use of Public Rights-of-Way fees totaling five percent (5%) of Gross Revenues from the DAS Network. The percentage of Gross Revenues fees will be paid during the Initial Term, any subsequent Renewal Term(s) of this License Agreement, and any Hold Over Period on an annual basis as prescribed under subsection (c). If the five percent (5%) of Gross Revenues fee exceeds the minimum annual payment, the minimum annual payment shall not be due for that year. LICENSEE shall pay either the five percent (5%) or the minimum annual payment, whichever is greater. (b) Fiber Strands. In addition to the payments, LICENSEE shall make an in-kind contribution to the CITY of two (2) strands of the fiber installed in the Telecommunications Network (“Licensed Fiber”). In the event that such consideration is declared illegal by any court, legislature or governmental agency of competent jurisdiction, LICENSEE and the CITY shall negotiate for mutually acceptable alternate consideration. The connection of electronic equipment to the Licensed Fiber shall be the responsibility of the CITY and will be made at the sole cost and expense of the CITY. The costs of construction, maintenance, repair and operation of the CITY’s network, facilities and equipment not comprising a part of the Telecommunication Network shall be the sole responsibility of the CITY. The CITY will enjoy the use of the Licensed Fiber under the terms and conditions of an indefeasible right of use (IRU) agreement to be negotiated by the parties within thirty (30) business days of City Council approval of this License Agreement, which will be included as Exhibit “D” to this License Agreement. (c) Remittance of Fees. Each annual fee payment shall be paid in advance and will be due on or before December 31 to cover the next calendar year. The first annual fee payment amount for each Facility or Node will be prorated for the current calendar year and paid at the time each Node or Facility is approved by the CITY. Each annual payment shall be accompanied by a statement, substantially in the form provided in Exhibit “C,” which mathematically verifies the 10 City of College Station DAS License Agreement - ExteNet Systems, Inc. accuracy of the payment, and a financial report which will include Gross Revenues received during the applicable reporting period, a calculation of five percent (5%) of Gross Revenues, with 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. (d) True-Up. At the end of each calendar year, LICENSEE shall perform true-up calculations to determine whether five percent (5%) of Gross Revenues exceeds the amount of the minimum annual payment made for that calendar year. No later than forty five (45) days after the end of each calendar year, LICENSEE shall provide CITY notice of the true-up calculation results and indicate if a true-up payment by LICENSEE is required pursuant to this License Agreement. LICENSEE shall tender such true-up amount to CITY within thirty (30) days after providing CITY notice that a true-up payment is required. The necessary underlying financial information supporting the true-up amount and calculations shall be provided to the CITY, upon request. 7.2 Annexation. Subsequent to the Effective Date of this License Agreement, should the CITY 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 fees under this License Agreement associated with DAS Network that previously was found outside the CITY’s geographic boundaries, but following annexation will lie within the new CITY boundaries. The effective date of the additional payment will be consistent with the annual payment process as defined in Section 7, above. The additional payment will be prorated by the number of months during the previous year following annexation. 7.3 Permit Fees. LICENSEE must obtain all required construction permits from the CITY’s City Engineer 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, if applicable. 7.4 Late Fees. Fees are deemed paid only when CITY 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 or the legal rate from the date the amount first came due until paid. ARTICLE 8 RIGHT TO AUDIT 8.1 The CITY, or its designees, shall have the right to audit, examine or inspect, at the CITY’s election and at CITY’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 CITY designee, which may include its internal auditors or an outside representative engaged by the CITY. The LICENSEE agrees to retain the LICENSEE’s Records for a minimum of four (4) years following termination of the License 11 City of College Station DAS License Agreement - ExteNet Systems, Inc. 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 to CITY electronically or via certified paper copy within thirty (30) calendar days of CITY’s request and shall include any and all information, materials and digital data of every kind and character generated in connection with or related to the telecommunications network which is the subject of this License Agreement or other information 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, true-up calculations, 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 and transmitting any and all requested business records. 8.3 The CITY agrees that it will exercise the right to audit, examine or inspect only during regular business hours. The LICENSEE agrees to allow the CITY’s designee access to all of the LICENSEE’s Records deemed necessary by CITY or its designee(s), to perform such audit, inspection or examination. The LICENSEE also agrees to provide adequate and appropriate work space necessary to CITY or its designees to conduct such audits, inspections or examinations if required. 8.4 If an audit inspection or examination discloses that LICENSEE’s remittances to the CITY as previously reported for the period audited were underpaid, LICENSEE shall pay within thirty (30) days to the CITY 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 CITY, the reasonable actual cost of the CITY’s audit shall be reimbursed to the CITY by the LICENSEE. 8.5 Failure by the LICENSEE to comply with the provisions of this audit clause may result in termination by the CITY 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 CITY 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 locations specifically identified in the attached Exhibit “A” in which the CITY 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 CITY’s charter, ordinances, enabling legislation or permits. This License Agreement does not deprive the CITY 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. 12 City of College Station DAS License Agreement - ExteNet Systems, Inc. 9.2 LICENSEE’s use of the public Rights-of-Way is subject to the existing and future uses and prior and continuing right of the CITY 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 CITY 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 CITY. 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 CITY, LICENSEE provides to CITY the required insurance and 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. 10.2 Default by CITY 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. 13 City of College Station DAS License Agreement - ExteNet Systems, Inc. 10.3 Remedies. Upon the occurrence of any Event of Default or at any time thereafter, CITY 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 CITY, 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. 10.4 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. ARTICLE 11 NO ADVERSE IMPACT UPON OTHER AUTHORIZED USERS. 11.1 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 CITY specifically reserves the right to install, and permit others to install utility facilities in the Rights - of-Way. In permitting such work to be done by others, the CITY 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 CITY’s Code of Ordinances and Charter, including all International Codes, as adopted, and by commonly accepted industry codes regarding engineering, safety, and construction of right -of- way facilities. 11.2 Within ninety (90) calendar days of written request by CITY, or within such other mutually agreed upon timeframe, LICENSEE shall be required to relocate Facilities at its own cost if required to do so by CITY due to a public works or other governmental use of the right-of-way. If Licensee fails or refuses to comply with the directions of CITY to relocate Facilities in accordance with this Agreement, CITY may then opt to relocate LICENSEE’S Facilities without incurring any liability to Licensee and at Licensee's sole cost, or CITY may proceed under Article 10 (Breach and Default) of this Agreement. 11.3 Except as permitted by applicable law or this License Agreement, LICENSEE shall not damage, remove or impair the use of any public Rights-of-Way or any other authorized facilities 14 City of College Station DAS License Agreement - ExteNet Systems, Inc. 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 CITY and of any other owner(s) of the affected property. 11.4 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 CITY networks, and other telecommunications, utility, or municipal property unless the owner(s) of the affected property expressly authorize LICENSEE’s actions in writing or LICENSEE can show CITY that such facilities have been abandoned. 11.5 If the CITY 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 CITY, 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 CITY shall never be liable for such reimbursement. 11.6 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. ARTICLE 12 SUPERVISION BY CITY OF LOCATION OF POLES AND CONDUITS 12.1 In the event LICENSEE finds it necessary to route its Facilities where there are no existing CITY poles, LICENSEE shall install its Facilities underground. The CITY 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 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 CITY. ARTICLE 13 CONSTRUCTION AND RESTORATION STANDARDS 13.1 Prior to the performance of the initial construction and installation of the DAS Network, LICENSEE shall submit engineering plans to the CITY’s City Engineer for review and approval. The construction, installation, maintenance, repair and removal of Network Facilities shall be accomplished without cost or expense to the CITY and shall be in accordance with the CITY's Rights-of-Way Ordinance and the CITY’s applicable engineering design standards and criteria, 15 City of College Station DAS License Agreement - ExteNet Systems, Inc. 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. 13.2 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. 13.3 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 CITY's Rights-of-Way Ordinance and the CITY’s applicable engineering design standards and criteria, as amended. 13.4 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. 13.5 LICENSEE shall be responsible for any damage to CITY streets, existing utilities, poles, 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 CITY requirements. 13.6 In case LICENSEE, after receipt of written notice and a reasonable opportunity to cure, fails or refuses to comply, the CITY 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 14.1 LICENSEE 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 Projects, the use of Auto CAD/GIS digital format files. LICENSEE will provide the maps and records to the CITY upon request. 14.2 LICENSEE shall also provide detailed as-built design drawings, certified by the engineer and contractor, showing the size, depth and location of all Facilities and other service appurtenances within the Licensed Area. It is understood that the location of the Facilities shall be verified by excavating if exact alignment is required. City agrees that it will comply with all state and federal laws prohibiting disclosure of Grantees drawings, maps, etc. to any third party. The following certifications shall affixed and signed with the as-built drawings: “I hereby attest that I am familiar with the associated construction and attest that the Facilities and other service appurtenances have been constructed as reflected 16 City of College Station DAS License Agreement - ExteNet Systems, Inc. with the as-built drawings within reasonable dimension tolerances based on the approved construction plans or amendments thereto approved by the City of College Station.” _________________________________ (Licensed Professional Engineer) “I hereby attest that the Facilities and other service appurtenances shown on this as-built sheet were actually built, and that said Facilities and other service appurtenances are substantially as shown hereon. I further certify, to the best of my knowledge, that the materials of construction and the sizes of manufactured items, if any, are stated correctly hereon.” _________________________________ (General Contractor) ARTICLE 15 REMOVAL AND RELOCATION OF NETWORK FACILITIES 15.1 If LICENSEE desires to remove or relocate its Network Facilities in the Rights-of-Way, it shall give the CITY not less than ten (10) business days prior written notice of its intent to do so. Before proceeding with removal or relocation work, LICENSEE shall obtain such additional permits as may be required by the CITY and conform with all requirements of this License Agreement and the CITY's Rights-of-Way Ordinance and the CITY’s applicable engineering design standards and criteria, as amended. 15.2 LICENSEE shall remove or relocate, without cost or expense to the CITY, 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 or public utility easement; (ii) to protect or preserve the public health or safety; or (iii) where the CITY affords LICENSEE a technically and financially reasonable alternative location for installation of LICENSEE’s Network Facilities. The CITY 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 CITY may reasonably direct in the case of an emergency. If LICENSEE fails to remove or relocate its Network Facilities within such period, the CITY may cause the same to be done at the sole expense of LICENSEE, and without liability to the CITY. The CITY 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. 17 City of College Station DAS License Agreement - ExteNet Systems, Inc. ARTICLE 16 INDEMNIFICATION 16.1 LICENSEE shall exercise due care to avoid any action that may cause damage to property of the CITY, property of any other person or entity whose facilities occupy, abut or adjoin the Public Rights-of-Way, and any other third-party. 16.2 LICENSEE SHALL, AT ITS SOLE COST AND EXPENSE, FULLY INDEMNIFY, DEFEND AND HOLD HARMLESS CITY, ITS OFFICERS, BOARDS, COMMISSIONS, COUNCILS, EMPLOYEES, VOLUNTEERS, AGENTS, ATTORNEYS, CONTRACTORS, AND SUBCONTRACTORS, (CITY AND SUCH OTHER PERSONS AND ENTITIES BEING COLLECTIVELY REFERRED TO HEREIN AS "INDEMNITEES"), FROM AND AGAINST: 16.2.1 ANY AND ALL LIABILIT IES, OBLIGATIONS, DAMAGES, PENALTIES, CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY ACT OR OMISSION OF LICENSEE, ITS PERSONNEL, EMPLOYEES, AGENTS, CONTRACTORS, SUBCONTRACTORS OR AFFILIATES, INCLUDING THE FAILURE TO COMPLY WITH ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, CODE, ORDINANCE OR REGULATION, AND RESULTING IN PERSONAL INJURY, BODILY INJURY, SICKNESS, DISEASE OR DEATH TO ANY PERSON OR DAMAGE TO, LOSS OF OR DESTRUCTION OF TANGIBLE PROPERTY, OR ANY OTHER RIGHT OF ANY PERSON, FIRM OR CORPORATION, WHICH MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THE CONSTRUCTION, RECONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR CONDITION OF LICENSEE’S FACILITIES OR OTHER PROPERTY OF LICENSEE OR ITS AFFILIATES AND ANY OTHER FACILITIES AUTHORIZED BY OR PERMITTED UNDER THIS AGREEMENT (INCLUDING THOSE ARISING FROM ANY MATTER CONTAINED IN OR RESULTING FROM THE TRANSMISSION OF PROGRAMMING OVER THE COMMUNICATIONS FACILITIES, BUT EXCLUDING ANY PROGRAMMING PROVIDED BY THE INDEMNITEES’ COMMUNICATIONS SERVICES OR OTHER SERVICES AUTHORIZED BY OR PERMITTED UNDER THIS AGREEMENT); THE RELEASE OF HAZARDOUS SUBSTANCES, OR; THE FAILURE TO COMPLY WITH ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, CODE, ORDINANCE OR REGULATION, EXCEPT TO THE EXTENT ANY SUCH LOSS OR INJURY RESULTS FROM THE CITY’S GROSS NEGLIGENCE. 16.2.2 ANY AND ALL LIABILIT IES, OBLIGATIONS, DAMAGES, PENALTIES, CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND 18 City of College Station DAS License Agreement - ExteNet Systems, Inc. EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), WHICH ARE IMPOSED UPON, INCURRED BY OR ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO LICENSEE, ITS CONTRACTORS OR SUBCONTRACTORS, FOR THE INSTALLATION, CONSTRUCTION, RECONSTRUCTION, OPERATION OR MAINTENANCE OF LICENSEE’S FACILITIES (AND ANY OTHER FACILITIES AUTHORIZED BY OR PERMITTED UNDER THIS AGREEMENT OR PROVISION OF COMMUNICATIONS SERVICES OR OTHER SERVICES AUTHORIZED BY OR PERMITTED UNDER THIS AGREEMENT), AND, UPON THE WRITTEN REQUEST OF CITY, LICENSEE SHALL CAUSE SUCH CLAIM OR LIEN COVERING CITY'S PROPERTY TO BE DISCHARGED OR BONDED WITHIN THIRTY (30) DAYS FOLLOWING SUCH REQUEST. 16.2.3 ANY AND ALL LIABILIT IES, OBLIGATIONS, DAMAGES, PENALTIES, CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY FINANCING OR SECURITIES OFFERING BY LICENSEE OR ITS AFFILIATES FOR VIOLATIONS OF THE COMMON LAW OR ANY LAWS, STATUTES, OR REGULATIONS OF THE STATE OF TEXAS OR THE UNITED STATES, INCLUDING THOSE OF THE FEDERAL SECURITIES AND EXCHANGE COMMISSION, WHETHER BY LICENSEE OR OTHERWISE. 16.2.4 LICENSEE’S OBLIGATIONS TO INDEMNIFY INDEMNITEES UNDER THIS AGREEMENT SHALL NOT EXTEND TO CLAIMS, LOSSES, AND OTHER MATTERS COVERED HEREUNDER THAT ARE CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE OF ONE OR MORE INDEMNITEES. IN SUCH CASE THE OBLIGATION TO INDEMNIFY SHALL BE REDUCED IN PROPORTION TO THE NEGLIGENCE OF THE INDEMNITEES. BY ENTERING INTO THIS AGREEMENT, CITY DOES NOT CONSENT TO SUIT, WAIVE ITS GOVERNMENTAL IMMUNITY OR THE LIMITATIONS AS TO DAMAGES CONTAINED IN THE TEXAS TORT CLAIMS ACT. 16.2.5 THIS SECTION 16.2 SURVIVES THE TERMINATION OF THIS LICENSE AGREEMENT. 16.3 LICENSEE SHALL BE LIABLE TO THE CITY FOR DAMAGES SUSTAINED BY THE CITY AND RESULTING FROM THE ACTS AND OMISSIONS OF ANY CONTRACTOR, SUBCONTRACTOR, OR ANY PARTY INVOLVED DIRECTLY OR INDIRECTLY IN THE CONSTRUCTION AND INSTALLATION OF LICENSEE’S DAS NETWORK AND UNDER 19 City of College Station DAS License Agreement - ExteNet Systems, Inc. LICENSEE’S DIRECT CONTROL. ANY ACT OR OMISSION OF SUCH PARTY SHALL BE CONSIDERED AN ACT OR OMISSION OF THE LICENSEE. THIS SECTION 16.3 SURVIVES THE TERMINATION OF THIS LICENSE. 16.4 Promptly upon learning of any claim for which it seeks indemnification under this License Agreement, CITY shall give written notice to LICENSEE of the claim. LICENSEE, 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. CITY shall cooperate and assist LICENSEE in investigating and defending against the claim. If LICENSEE does not provide the indemnity and defense, or if LICENSEE does not make diligent effort to settle the claim or provide for a defense, CITY 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. 16.5 Neither party will be liable to the other for any special, consequential or other indirect damages arising under this License Agreement. ARTICLE 17 INSURANCE 17.1 Insurance Required. During the term of this Agreement, and at all times thereafter when LICENSEE is occupying or using the licensed areas in any way, LICENSEE shall at all times carry insurance issued by companies duly licensed and authorized to provide insurance in the State of Texas rated at least A VIII under the A. M. Best rating system, and approved by CITY (which approval shall not be unreasonably withheld) to protect LICENSEE and the CITY from and against any and all claims, demands, actions, judgments, costs, expenses, or liabilities of every kind that may arise, directly or indirectly, from or by reason of losses, injuries, or damages described in this Agreement. The CITY reserves the right to review the insurance requirements and to reasonably adjust insurance and limits when the CITY determines that changes in statutory law, court decisions, or the claims history of the industry or the LICENSEE require adjustment of the coverage. 17.2 Minimum Coverages. At a minimum, Licensee shall carry and maintain the following policies and shall furnish the CITY Risk Manager Certificates of Insurance on the most current State of Texas Department of Insurance-approved certificate form as evidence thereof. A. Commercial General Liability coverage with minimum limits of liability of $2,000,000 per occurrence and $2,000,000 aggregate. The policy shall contain no exclusions without specific reference to same, and shall include coverage for products and completed operations liability; independent contractor’s liability; personal & advertising injury liability; and coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. 20 City of College Station DAS License Agreement - ExteNet Systems, Inc. B. Workers' Compensation coverage with statutory limits of liability as set forth in the Texas Workers' Compensation Act and Employer's Liability coverage of not less than $1,000,000 per accident, $1,000,000 per disease and $1,000,000 per disease per employee. C. Business Automobile Liability Insurance for any vehicles, owned vehicles, non-owned vehicles, scheduled vehicles and hired vehicles with a minimum combined single limit of liability of $2,000,000. D. Pollution liability insurance which provides coverage for sudden and accidental environmental contamination with minimum limits of liability of $5,000,000. E. Umbrella or Excess Liability insurance with minimum limits of $5,000,000 combined single limit per occurrence, and $5,000,000 aggregate. 17.3 CITY as Additional Insured. All policies, except for Workers’ Compensation policies, shall list the CITY and all associated, affiliated, allied and subsidiary entities of CITY, now existing or hereafter created, and their respective officers, boards, commissions, councils, employees, agents, and volunteers as their respective interests may appear, as Additional Insureds (CITY and such other persons and entities being collectively referred to herein as “Additional Insureds”) and shall include cross-liability coverage. Should any of the policies be canceled before the expiration date thereof, written notice shall be given to the City’s Risk Manager in accordance with the policy provisions. The "other insurance" clause shall not apply to the CITY; it being the intention of the parties that the above policies covering Licensee and the Additional Insureds shall be considered primary coverage. Each policy shall contain a waiver of all rights of recovery or subrogation against CITY, its officers, agents, employees, volunteers and elected officials. 17.4 Occurrence Basis Policies. All insurance policies shall be occurrence-based, other than those for workers’ compensation. Claims-made policies will not be accepted. 17.5 Combining Policy Amounts. The coverage amounts set forth in this section may be met by a combination of underlying (primary) and umbrella policies so long as in combination the limits equal or exceed those stated and the umbrella policy follows the form, or its terms and conditions are at least as broad as those of the primary policies. 17.6 Insurance Primary. All policies of the Licensee shall be primary, and any policy of insurance or self-insurance purchased or held by the CITY now or in the future shall be non- contributory. The term “policy of insurance” as applied to the Additional Insureds shall include any self-insurance program, self-insured retention or deductible, or risk pool program or an indemnification, defense, or similar program purchased or maintained by CITY and Additional Insureds. 17.7 Contractors. Any Contractor or Subcontractor retained by Licensee to perform work or services for Licensee under this Agreement shall be required to insure against liability to the 21 City of College Station DAS License Agreement - ExteNet Systems, Inc. same extent as provided above, including Additional Insured endorsements, as a condition of being granted access to Poles. 17.8 LICENSEE shall immediately advise the CITY’s City Attorney’s Office of actual or potential litigation that may develop and affect an existing carrier's obligation to defend and indemnify. 17.9 This Article creates no right of recovery of an insurer against the CITY. The required insurance policies shall protect the LICENSEE and the CITY. The insurance shall be primary coverage for losses covered by the policies. ARTICLE 18 PERFORMANCE BOND 18.1 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 for the protection of the CITY. The surety bond must be: a. in an amount not less than One hundred Thousand Dollars ($100,000); b. issued by a surety company licensed to do business in the State of Texas and reasonably acceptable to the CITY; and c. reasonably acceptable to the CITY’s City Attorney. 18.2 The LICENSEE shall obtain this bond no later than the effective date of this License Agreement and prior to construction or installation of any Network Facilities in the Rights-of- Way. 18.3 The rights reserved to the CITY under the bond are in addition to all other rights. No action, proceeding or exercise of a right regarding the bond shall affect the CITY’s rights to demand full and faithful performance under this License Agreement or limit the LICENSEE’s liability for damages. ARTICLE 19 TREE TRIMMING 19.1 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 CITY so as to prevent the branches of such trees from coming in contact with the aerial wires, fiber or cables of the LICENSEE. 22 City of College Station DAS License Agreement - ExteNet Systems, Inc. ARTICLE 20 EMERGENCY NOTIFICATION TO LICENSEE 20.1 The LICENSEE Call Center shall be available to CITY staff 24 hours-per-day, 7 days-per- week, regarding problems or complaints resulting from the Network Facilities. The CITY’s City Engineer may contact LICENSEE by telephone at a number which shall be provided by LICENSEE in conjunction with all permit applications. ARTICLE 21 NOTICES 21.1 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 CITY, to: Copy to: City of College Station City of College Station Attn: City Manager Attn: City Engineer P.O. Box 9960 P.O. Box 9960 College Station, TX 77842 College Station, TX 77842 Phone (979) 764-3500 Phone (979) 764-5007 If to LICENSEE, to: Copy to: ExteNet Systems, Inc. ExteNet Systems, Inc. ATTN: CFO ATTN: General Counsel 3030 Warrenville Road, Suite 340 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 Lisle, IL 60532 Phone (630) 505-3800 Phone (630) 505-3800 Notices shall be deemed effective upon receipt. ARTICLE 22 ASSIGNMENT 22.1 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 written consent of the CITY, which consent shall not be unreasonable withheld, delayed or conditioned. 22.2 Notwithstanding the provisions of Section 22.1, a transfer of this License Agreement may occur without CITY 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 College Station, Texas market 23 City of College Station DAS License Agreement - ExteNet Systems, Inc. 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 CITY approval, the LICENSEE must provide the CITY Administrator 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. 22.3 CITY 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 CITY’s consent, provided that LICENSEE has delegated none of its obligations under this License Agreement to the lessee of the Network Facilities, and CITY may continue to look solely to LICENSEE for performance hereunder. 22.4 LICENSEE may also assign this License Agreement, without CITY's consent and without prior notice to CITY, 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 CITY unless and until written notice of such assignment and exercise of rights is provided to CITY. ARTICLE 23 FUTURE CONTINGENCY 23.1 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 CITY 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 CITY with a level of compensation comparable to that set forth in this License Agreement. ARTICLE 24 MISCELLANEOUS 24.1 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 Brazos County, Texas. 24.2 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 24 City of College Station DAS License Agreement - ExteNet Systems, Inc. herein. This License Agreement can be amended, supplemented, modified or changed only by a written document executed by both Parties. 24.3 Reservation of Rights by Parties. Except as specifically set forth herein to the contrary, the CITY and LICENSEE each reserve all rights under applicable state and federal law. 24.4 Authority. The signer of this License Agreement for the LICENSEE and the CITY hereby represents and warrants that he or she has full authority to execute this License Agreement on behalf of the LICENSEE or the CITY respectively. 24.5 Waiver. None of the material provisions of this License Agreement may be waived or modified except expressly in writing signed by the LICENSEE and CITY, as authorized by City 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. 24.6 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. 24.7 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. 24.8 Singular and Plural. All references to the plural herein shall also mean the singular and to the singular shall also mean the plural unless the context otherwise requires. 24.9 Ambiguity. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this License Agreement. 24.10 No 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. 24.11 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. 25 City of College Station DAS License Agreement - ExteNet Systems, Inc. IN WITNESS WHEREOF the Parties have caused this License Agreement to be executed by their duly authorized representatives. EXTENET SYSTEMS, INC. CITY OF COLLEGE STATION By: By: Printed Name: Mayor Title: Date: Date: ATTEST: City Secretary Date: APPROVED: City Attorney Date: 26 City of College Station DAS License Agreement - ExteNet Systems, Inc. LIST OF EXHIBITS Exhibit A – Diagrams, Maps, and Locations of Facilities and Nodes Exhibit B – Construction Guidelines (Pole Attachment Specifications) Exhibit C – Form of Statement to be Submitted with Annual Fee Exhibit D – Dark Fiber Indefeasible Right of Use Agreement - Exhibit 1 – Fiber Route Map 27 City of College Station DAS License Agreement - ExteNet Systems, Inc. EXHIBIT “A” Diagrams, Maps, and Locations of Facilities and Nodes 28 City of College Station DAS License Agreement - ExteNet Systems, Inc. EXHIBIT “B” Construction Guidelines (Pole Attachment Specifications) College Station Utilities Pole Attachment Specification Page-11 Approved January 2015College Station Utilities POLE ATTACHMENTS ATTACHMENT OF DAS ANTENNA OR EQUIPMENT ON POLES 01/08/2015NTS PAGE 11 College Station Utilities Pole Attachment Specification Page-12 Approved January 2015College Station Utilities POLE ATTACHMENTS LICENSEE METHODS TO ATTACH TO POLES NTS 01/08/2015 College Station Utilities Pole Attachment Specification Page-14 Approved June 2014College Station Utilities POLE ATTACHMENTS SPEC NAME NTS 06/24/2014 Communication Facilities Location and Tagging To facilitate identification of attachments to COCS poles, the following standards apply to all Licensees. These requirements will also assist in contacting the attached party as needed. ORDER OF ATTACHMENT ON POLE: The following is the hierarchy for installing facilities on poles. List is from top of pole down: x Electric Utility Infrastructure x City of College Station fiber x Licensee (3) fiber x Licensee (2) fiber x Licensee (1) fiber x Verizon lines and fiber If a new Licensee applies to contact a pole, they will be responsible for the cost of moving or lowering the facilities as required to maintain this hierarchy. Changing of position from pole to pole will not be allowed. TAGGING: A tag must be installed which includes the following information: 1.Company name or generally recognizable company logo 2.Emergency telephone number Tagging requirements: 1.Locations: a.The starting and dead-end poles of all attached facilities b.The beginning of all lateral taps c.All overhead to underground transitions d.All roadway crossings e.Equipment or antenna facilities Tags should be installed on a minimum of every fourth pole. 2.Tagging must take place upon installation of facilities. 3.Companies are required to tag their facilities as an ongoing practice in order to meet these requirements. 4.Tag must be replaced when the company name and/or contact number are no longer legible from the ground. 5.Missing tags must be replaced as soon as possible. The attaching company may choose the method, color, material, construction, and dimensions of the tag as long as the following requirements are met: a.Tags to remain permanently affixed to the attaching company's facilities. b.Color and text must be designed to last at least 5 years. c.7KHFRPSDQ\QDPHDQGFRQWDFWQXPEHUPXVWEHHDVLO\UHDGDEOHDQGYLVLEOHIURPWKHJURXQG$PLQLPXPRIòLQFKKLJKOHWWHULQJLVUHTXLUHG d.Avoid the use of sharp edges and corners if constructed of metal. e.Tags should be consistent in appearance for a given company throughout COCS's service territory. NOTES: 1.Attachment of telephone and other communication facilities shall be same side of the pole. 2.1RPHWDOFDELQHWODUJHUWKDQ´[´[´GHHSVKDOOEH mounted directly on the pole. Larger cabinets may be pole mounted as shown in the side views on this sheet provided mounting brackets are used which provide a PLQLPXPRI´DQGDPD[LPXPRI´EHWZHHQWKH cabinet and the pole. Only one box shall be allowed. Largest dimensions for box per pole, allowed is ´ZLGH´WDOODQG´GHHS 3.Licensee supply cable shall be in conduit or have an effectively grounded metal sheath or shield. 4.Service shall be furnished by customer. 5.Messenger and metal case of power supply shall be connected to pole ground with #6 SD bare copper bonding wire. 6.Customer's leads shall extend out of weatherhead sufficient for making connections on secondary bus or transformer. 7.Self contained meter socket furnished by communication company. 8.Mount the meter socket so the meter can be read easily from the ground. Meter should not face street, alley, or property side of pole. 9.Recommended position for attachment of communication cable (either self-supporting or supported messenger). 10.Pole must be stabilized 11.If addition equipment or boxes are required, they must be pad mounted at least 3 feet from base of pole. 12.Antenna shall be mounted in the communication space or below and shall not interfere with access to other licensees facilities. 13.Equipment shall not be installed on poles already having other licensees equipment or boxes. 14.Equipment shall not be installed on poles containing electric risers, airbreak switches, capacitor, reclosers or regulators. Secondary Circuits or Transformer Weather Head Open Drip Loop Licensee Equipment (See Notes 2 & 5) See Notes 1, 5 & 9 Service to Power Supply (See Notes 2, 3, 4, 5 & 6) See Note 2 Meter (See Notes 7 & 8) Customer's Service Switch Customer's Grounding Electrode Clearance to Ground as Per NESC4'-0" Min.6'-0" Max.Clearance to Ground as Per NESC or TxDoT12"Min.24" Max.24" Min.12"Min.40"12" Min.52" Min.Supply and Communication Equipment College Station Utilities Pole Attachment Specification Page-15 Approved February 2014College Station Utilities POLE ATTACHMENTS SUPPLY AND COMMUNICATION EQUIPMENT PAGE 15 02/11/2015 Antenna 1.CONDUIT SHALL MATCH COLOR OF STREET LIGHT POLE. 2.CONDUIT SHALL BE STRAPPED TO STREET LIGHT POLE, STRAPS SHALL BE PLACED A MAXIMUM OF 3' APART. STRAPS SHALL MATCH COLOR OF STREET LIGHT POLE. 3.ALL EQUIPMENT, EXCEPT ANTENNA, INCLUDING METER FOR ELECTRICAL SERVICE, SHALL BE PAD MOUNTED. 4.CONDUIT AND STRAPS SHALL BE LOCATED WHERE THEY DO NOT INTERFERE WITH THE STREET LIGHT CONDUCTOR ACCESS PANEL. 5.INSTALL ON ANCHOR BASED METAL STREET LIGHT POLES ONLY. 6.POLE LOADING CALCULATION SHALL BE REQUIRED BASED ON ACTUAL ANTENNA SPECIFICATIONS. COMMUNICATION EQUIPMENT MOUNTED ON ANCHOR BASED METAL STREET LIGHT POLE 18" MIN FROM STREET LIGHT ARM Note 1 & 2 Note 4CLEARANCE TO GROUND AS PER NESCCollege Station Utilities Pole Attachment Specification Page-16 Approved June 2014College Station Utilities POLE ATTACHMENTS SPEC NAME PAGE 16 02/02/2015 ANTENNA 29 City of College Station DAS License Agreement - ExteNet Systems, Inc. EXHIBIT “C” Form of Statement to be Submitted with Annual Fee 30 City of College Station DAS License Agreement - ExteNet Systems, Inc. CERTIFIED PAYMENT FORM Please find attached the following supporting documentation for each category: Gross Revenue Collected by : _______________ Fee: _______________ Fee is to be the greater of: (a) five percent (5%) of Gross Revenues; or (b) a minimum base payment of $1,200.00 per year per facility or node and an additional $900.00 per year per facility or node for each additional tenant, provider, or telecommunications carrier using the facility or node. Indicate if fee is based upon percentage or minimum (circle applicable choice). Property Taxes ________________ I, ____________________ (name), in my capacity as ______________________ (title) for ____________________, am hereby authorized by _____________________________ to make this filing on behalf of ____________________________, and do hereby certify that to the best of my knowledge and belief, the foregoing information is true and correct. _____________________________ _______________________ Signature Date _____________________________ Printed Name STATE OF __________ § COUNTY OF ____________ § BEFORE ME, the undersigned on this day personally appeared ____________ (Name), ________________ (Title) and attested that she/he is authorized to sign on behalf of ____________________________, and proved to me through the presentation of a valid Driver’s License to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she/he executed the same for the purposes and consideration therein expressed. M__. _____________________ furthermore attested that he/she is signing this document in his/her capacity as ___________________ for and on behalf of _____________________, and that such capacity makes his/her signature valid and binding to _______________________. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ______ day of _________________, 20____. ___________________________________ NOTARY OF PUBLIC, State of ________ My Commission Expires:_________ 31 City of College Station DAS License Agreement - ExteNet Systems, Inc. EXHIBIT “D” DARK FIBER INDEFEASIBLE RIGHT OF USE AGREEMENT This Dark Fiber Indefeasible Right of Use Agreement ("Agreement") is made by and between ExteNet Systems, Inc., a Delaware corporation with its principal place of business located at 3030 Warrenville Road, Suite 340, Lisle, Illinois, 60532 (“Grantor”, “Company” or “ExteNet”) and the City of College Station, a municipal corporation and home-rule municipality of the State of Texas located at 1101 Texas Avenue South, College Station, Texas 77840 (“City” or “Grantee”) and each referred to as a “Party” or jointly as the “Parties”. Background WHEREAS, this Agreement is made in light of the following premises and circumstances, all of which are a part of this Agreement: A. Grantor, a Delaware corporation will be the owner of certain fiber optic cables comprising a component of a fiber network that Grantor plans to install in, over and/or under the public rights of way (“ROW”) within the geographic boundaries of City for the provision of providing telecommunications service (the “Network”); B. City is a political subdivision of the State of Texas with jurisdiction over the ROW for certain purposes; C. The planned route of such fiber optic cable is depicted on the Fiber Route Map attached hereto as Exhibit “1”; D. City is entitled to manage the public rights-of-way and to require fair and reasonable compensation based on principles of cost recovery as a condition to allowing Grantor access to the ROW; E. Grantor and City desire to enter into an agreement to govern the term s and conditions under which Grantor will reserve two Dark Fiber strands in Grantor’s fiber optic cable for the exclusive use of City in connection with implementation of the Network installation in the ROW. Agreement Terms and Conditions NOW THEREFORE, in consideration of the promises and mutual covenants contained herein and in the DAS License Agreement, the Grantor and City hereby agree as follows: 1. Definitions For the purpose of this Agreement, the following terms when used herein shall have the following meanings: 32 City of College Station DAS License Agreement - ExteNet Systems, Inc. (i) “Access Point” means a Manhole, Vault, Handhole, Junction Box or Pedestal through which the College Station Cable may be accessed for the purposes of splicing fibers to interconnect to other networks or facilities. (ii) “Authorized Contractors” means third party contractors (whether independent or affiliated with Grantor) that have been approved and authorized by Grantor to utilize Access Points and to make splices or perform other work on the College Station Cable as provided for in this Agreement. (iii) “Dark Fiber” means an unlit optical fiber strand in a Fiber Segment that is separate from and has not yet been connected to any of the equipment, electronics, lasers or additional Fiber Segments necessary to transmit optical signals via the fiber strand or to corresponding fiber strands in other adjacent Fiber Segments. (iv) “College Station Cable” means the several Fiber Segments, whether aerial or undergrounded, comprising the optical fiber components of the Network as deployed and depicted in the Fiber Route Map. (v) “Fiber Route Map” means the map of the composite routes of the various Fiber Segments comprising the fiber cabling to be installed as part of the Network, as depicted on the map attached as Exhibit 1 as the same may be modified during or after construction of the Network. Exhibit 1 shall be replaced with the “As-Built” Fiber Route Map following completion of the Network and thereafter shall be updated from time to time as necessary to reflect modifications to the Fiber Segments or additional Fiber Segments comprising the College Station Cable made in accordance with the provisions of this Agreement. (vi) “Fiber Segment” means a continuous run of multi-strand fiber optic cable covering a portion of the fiber cable route shown on the Fiber Route Map. (vii) “Handhole” means a buried box, with a lid that is even with the surface of the ground, used to store, terminate, splice or transfer fiber optic cable. (viii) “Junction Box” means a box where fiber optic cable splices and connections are made and accessed. (ix) “Licensed Fiber” means the two individual strands of Dark Fiber within each Fiber Segment of the College Station Cable, as the same may be modified in accordance with this Agreement that shall be reserved and/or designated for exclusive use by City in accordance with and subject to the terms of this Agreement. For avoidance of doubt, additional Fiber Segments that are connected to the Network following its initial construction and deployment in accordance with the Fiber Route Map set forth in Exhibit 1 on the effective date of this Agreement shall be deemed a part of the College Station Cable and shall be subject to the foregoing obligations on the part of Grantor to reserve and/or designate two strands of Dark Fiber for exclusive use by City only if and to the extent that such Fiber Segments and any associated Equipment are located within the 33 City of College Station DAS License Agreement - ExteNet Systems, Inc. geographic boundaries of City and are made subject to the DAS License Agreement on terms and conditions no less favorable to Grantor than those that are then in effect with respect to the Network as initially constructed and deployed. (x) “Manhole” means a subsurface enclosure which qualified personnel may enter and use for the purpose of installing, operating and maintaining facilities. (xi) “Pedestal” means an above ground structure used to store, terminate, splice or transfer fiber optic cable. (xii) “DAS License Agreement” means that certain DAS License Agreement between the parties executed and approved by the College Station City Council on or about May 28, 2015. (xiii) “Vault” means an underground structure used to store, terminate, splice or transfer fiber optic cable. 2. License 2.1 License Grant Subject to the terms, conditions and limitations set forth herein, Grantor hereby grants to City a license and right for the exclusive use of the Licensed Fiber for the transmission of optical signals generated by optical or other equipment owned or employed by City. The duration of the foregoing license shall continue in perpetuity so long as the College Station Cable installation remains in place. However, nothing herein shall obligate Grantor to continue to maintain and operate any Fiber Segment comprising a part of the College Station Cable or to maintain any attachment rights related thereto during any periods after Grantor and its successors in interest permanently cease to use such Fiber Segment (other than the Licensed Fiber) for the provision of services to their customers. For avoidance of doubt, Grantor or its successors in interest shall give City prior written notice and a reasonable opportunity to assume responsibility for maintaining and operating each Fiber Segment containing Licensed Fiber before removing such Fiber Segment in connection with the expiration or termination of the DAS License Agreement or ceasing to use such Fiber Segment for the provision of services. Except where Grantor is otherwise legally obligated to remove a Fiber Segment in a shorter period of time, such prior notice shall be given at least ninety (90) days in advance of such removal. 2.2 Scope of Grant (i) Grantor shall provide City with access to the Licensed Fiber. To the extent that Grantor has authority to use and authorize third party use of Access Points, it will grant permission to Authorized Contractors to use such Access Points for splicing the Licensed Fiber for the purpose of interconnection to other compatible equipment or facilities as directed by City and at City’s sole cost. Grantor shall have no obligation whatsoever to install any additional fiber optic cable or to allocate any additional strands of the College 34 City of College Station DAS License Agreement - ExteNet Systems, Inc. Station Cable to meet the needs of City. (ii) City shall undertake to obtain and provide all approvals, authorizations, coordination and supervision that is necessary in connection with its use of the Licensed Fiber. Without limiting the foregoing, City shall have the sole responsibility for performing all activities and paying all costs necessary to make the Licensed Fiber operational, including but not limited to: (i) splicing the Licensed Fiber to achieve interconnection between or within the applicable Fiber Segments and between the Licensed Fiber and fiber optic cable belonging to others, and (ii) providing, attaching and interconnecting equipment, electronics and lasers as required to transmit or receive optical signals via the Licensed Fiber. City shall further have the sole responsibility for paying all costs and for constructing or otherwise providing facilities needed to connect the Licensed Fiber to any other network or facilities via appropriate Access Points, and for performing all necessary fiber splices for interconnection of the Licensed Fiber to other network facilities. Except as otherwise approved by Grantor (such approval not to be unreasonably withheld) all such splices and other uses of Access Points shall be carried out only by Authorized Contractors and, to the extent practicable, only during regularly scheduled maintenance windows or at other times that are reasonably convenient for Grantor. (iii) Grantor and City agree and acknowledge that City’s use and operation of the Licensed Fiber does not and will not create or convey to City any ownership or property rights of any nature in the Licensed Fiber or any portion of the College Station Cable or of any Access Points or of the Network. City may not encumber, offer as collateral, or allow any third party claims of any type on or against the Licensed Fiber. (iv) In the event that City or any agency thereof fails or refuses to give any approval or issue any permit that is purportedly required for the construction and installation of the Network or otherwise takes action to prevent or prohibit construction or implementation of the Network substantially as proposed by Grantor in the materials it has heretofore submitted to the City of College Station, then the license and right with respect to the Licensed Fiber as provided in this Agreement shall, without any action on the part of Grantor other than the giving of written notice thereof, be entirely null and void and of no further force or effect. 2.3 Designation of Licensed Fiber Strands (i) At any time following completion of the Network construction and installation, City may notify Grantor of its desire to access the Licensed Fiber reserved for its use by Grantor. Such notice shall be written and shall be provided no fewer than sixty (60) days prior to the date on which City desires to access the Licensed Fiber for purposes of interconnection. City’s notice shall identify all of the following: (1) the specific portions of the Licensed Fiber route (i.e., the Fiber Segments) in which City intends to light and use Licensed Fiber, (2) the Access Points City desires to use (if any) to access and splice the Licensed Fiber, (3) all personnel or contractors that City proposes to use to perform any work activity involving the Licensed Fiber, including but not limited to construction and installation of fiber drops or laterals for interconnection of the Licensed Fiber to 35 City of College Station DAS License Agreement - ExteNet Systems, Inc. ancillary Access Points or to lasers, electronics or other equipment, facilities or networks for purposes of lighting and using the Licensed Fiber, and (4) City’s plans for interconnecting with and using the Licensed Fiber, including relevant technical and functional network specifications and design criteria for City’s systems that may facilitate consultation and cooperation of City and Grantor in the interest of efficient and effective implementation of City’s plans in accordance herewith. (ii) Within ten (10) days following receipt of such initial notice, Grantor shall provide City with a color-coded diagram designating the specific optical fiber strands within the designated Fiber Segments that have been designated as the Licensed Fiber for all purposes hereunder. (iii) Grantor shall have the right to determine in advance whether City’s personnel and/or proposed contractors are qualified to perform such work activities and may disapprove any proposed personnel or contractor in its sole reasonable discretion. Grantor shall identify the reasons for such disapproval in writing and City may propose alternate personnel or contractors. (iv) City is solely responsible for obtaining all public, private or government approvals, authorizations, permits, certifications, easements, rights of way and attachment rights beyond those required for installation and maintenance of the College Station Cable, if any, that are necessary in order for City to light and transmit or receive signals using the Licensed Fiber, and shall provide documentary evidence thereof as and when reasonably requested by Grantor. (v) At City’s request or in the event that Grantor refuses to approve City’s selected contractor as an Authorized Contractor, Grantor will either propose or exert commercially reasonable efforts to cause one of its Authorized Contractors to propose to perform the work necessary for City’s proposed interconnection of equipment and other network facilities with the Licensed Fiber on a time and materials basis at then prevailing commercially reasonable rates for work of substantially similar complexity and difficulty in the relevant market. 2.4 Limitations and Requirements for Use of Licensed Fiber Strands (i) Grantor and City agree and acknowledge that City may use the Licensed Fiber in the College Station Cable for any lawful purpose for which the fiber strand is technically suited, provided that City shall use the Licensed Fiber solely for public purposes, shall not use it for the provision of any commercial telecommunications services in competition with the business of Grantor or for the benefit of any competitor of Grantor, and shall not permit any third party to use or operate the Licensed Fiber except at the direction of City in furtherance of public purposes. (ii) If Grantor determines for any reason that it is necessary to relocate, modify, underground or otherwise alter (“Relocation or Modification”) all or any portion of the College Station Cable, including the Licensed Fiber (whether such Licensed Fiber is then 36 City of College Station DAS License Agreement - ExteNet Systems, Inc. lit and/or in use by City), Grantor shall provide City written notification prior to making the proposed relocation, modification or alteration. Such notice shall be given at least sixty (60) days in advance except in circumstances in which Grantor is legally obligated to take action more promptly and the prior notification requirement of this section shall not apply to emergency situations, in which case Grantor will give notice as quickly as is reasonably practicable. City shall have no responsibility for costs and expenses relating to any such Relocation or Modification of the College Station Cable. But if and to the extent that such Relocation or Modification is required by reason of events or circumstances beyond Grantor’s reasonable control, City shall have sole responsibility for costs and expenses relating to any necessary rearrangement, relocation, modification or alteration of any of City’s fiber drops or laterals or other equipment, electronics or lasers installed to light the Licensed Fiber, or other facilities City has interconnected to the Licensed Fiber (“City Facilities Relocation or Modification”) that may result therefrom. However, if and to the extent that such Relocation or Modification is made at Grantor’s discretion or for Grantor’ benefit, Grantor shall bear the reasonable cost of the City Facilities Relocation or Modification resulting therefrom. (iii) Any equipment, electronics, lasers, or interconnecting fiber or other network facilities provided by City shall be installed and maintained in accordance with the requirements and specifications of the then current editions of the National Electrical Code (NEC), and the National Electrical Safety Code (NESC), each of which are incorporated by reference in this Agreement. Further, City and its consultants and contractors shall at all times comply with the applicable rules and regulations of the Occupational Safety and Health Act of 1970 (OSHA), with all applicable state and federal statutes and laws, and with all applicable regulations, rules and orders issued by any state or federal agency having jurisdiction thereof, including without limitation the Federal Communications Commission and the Texas Public Utility Commission. (iv) Grantor reserves the right to make p eriodic inspections at any time of any part of City’s equipment, electronics, lasers, or facilities (including interconnected fiber or copper cable) utilized by City in conjunction with the Licensed Fiber for purposes of assuring compliance with the terms and conditions hereof and with applicable laws, rules and regulations as reasonably necessary to prevent or detect interference with or damage to the Network or breaches of City’s obligations hereunder. Except in the case of an emergency, Grantor shall give City 48 hours’ notice before carrying out such inspections and City shall be permitted, but not required, to have a representative present for such inspections. Such inspections shall be conducted at Grantor’s expense. City agrees that such periodic inspections by Grantor, or the failure to do so, shall not relieve City of any responsibility, obligation or liability whether assumed under this Agreement or otherwise existing. 2.5 Fees. Grantor provides the Licensed Fiber to City as a form of additional compensation to City pursuant to the DAS License Agreement. 37 City of College Station DAS License Agreement - ExteNet Systems, Inc. 3. Maintenance (i) Grantor shall maintain all facilities interconnected with or comprising a part of the College Station Cable that are owned by Grantor, including the Licensed Fiber, provided that Grantor’s obligation to maintain such facilities shall not in any way extend beyond the term of the DAS License Agreement and provided further that such obligation shall cease earlier as to any Fiber Segment with respect to which Grantor and its successors in interests either: (1) loses the necessary attachment and access rights to enable such maintenance; or (2) permanently ceases to use such Fiber Segment (other than the Licensed Fiber) for the provision of services to their customers, provided that before removing any such Fiber Segment Grantor gives City prior written notice and an opportunity to assume responsibility for maintaining and operating such Fiber Segment as provided in Section 2.1. (ii) City shall have sole responsibility for mainta ining all of its equipment, electronics, lasers, fiber and other facilities interconnected to the Licensed Fiber. City shall maintain its equipment, electronics, lasers and interconnecting fibers and facilities in good repair and in a manner that will not interfere with, or degrade the quality or reach of any signal, transmission or telecommunications carried on the College Station Cable. If City’s equipment or facilities should cause any type of interference with, or degradation of, any signal, transmission or telecommunications on the College Station Cable, City agrees to correct the condition. Grantor shall promptly notify City of any such problem with City’s equipment or facilities. Such correction shall be made within three (3) hours for any problem causing interference or disruption of any signal, transmission or telecommunications on the College Station Cable. Such correction shall be made within six (6) hours for any problem causing a degradation, but not disruption, of any signal, transmission or telecommunications on the College Station Cable. If City fails to take such corrective action, Grantor may in its sole discretion correct said condition. Grantor shall notify City in writing prior to performing such work whenever practicable. When Grantor reasonably believes, however, that such conditions pose an immediate threat to public safety or interfere with the performance of Grantor’s service obligations to its customers, or pose an immediate threat to the physical integrity of the College Station Cable or other facilities, Grantor may perform such work and/or take such action, including temporary disconnection of City’s equipment and facilities from the College Station Cable, that it reasonably deems necessary without first giving written notice to City. City shall be responsible for paying Grantor for all reasonable costs incurred by Grantor in taking such corrective actions on City’s behalf, except where it is ultimately determined that the problem was not in fact caused by City’s equipment or facilities. In the latter case, Grantor shall bear the cost of any reconnection or restoration of City’s equipment or facilities that is made necessary as a result of Grantor’s mistaken actions. 4. Liability and Damages (i) Only as arising under this Agreement when City provides written notice of its desire to access the Licensed Fiber reserved for City use by Grantor, pursuant to the provisions contained in Section 2.3 (Designation of Licensed Fiber Strands), City, its personnel, 38 City of College Station DAS License Agreement - ExteNet Systems, Inc. agents and contractors shall exercise reasonable caution to avoid damaging the facilities of Grantor and shall make an immediate report to Grantor of the occurrence of any such damage caused by its personnel, agents or contractors. (ii) Only as arising under this Agreement when City provides written notice of its desire to access the Licensed Fiber reserved for City use by Grantor, pursuant to the provisions contained in Section 2.3 (Designation of Licensed Fiber Strands), City shall be liable to Grantor for all of City’s actions or omissions that cause damage to the College Station Cable, the Access Points and all other City facilities and City equipment associated with the Network, or that interfere with, disrupt or degrade the quality or reach of any signal, transmission or telecommunications carried on the College Station Cable or the Network, but shall not be liable for any special, indirect, or consequential damages arising from City’s actions or omissions. (iii) Grantor shall not be liable to City for any special, indirect, or consequential damages arising from any interruption or degradation of City’s communications carried on Licensed Fiber. 5. Mutual Release Subject to this section becoming effective, as provided below, each of Grantor and City hereby agrees to hold harmless the other from and against any third party demand, claim, action, suit or proceeding (“Claim”) and any resulting loss, liability, cost, expense or fine, including court and appeal costs and reasonable attorneys' fees and expenses (“Losses”), that are caused by or arise out of the actual or alleged acts or omissions, whether negligent or willful, of either Party, its personnel, agents or contractors, in connection with the performance under this Agreement or otherwise in connection with the construction (including any excavation), installation, operation, maintenance or use of the College Station Cable or the Licensed Fiber or any City equipment or City facilities interconnected or associated therewith. This entire mutual release section shall only become effective and binding upon City when City provides written notice of its desire to access the Licensed Fiber reserved for City use by Grantor, pursuant to the provisions contained in Section 2.3 (Designation of Licensed Fiber Strands). 6. Assignment (i) City may not assign, sub-license, or transfer in any manner, in whole or in part, its rights, duties or obligations under this Agreement, provided that, pursuant to Section 2.4 above, City may authorize the use of the Licensed Fiber by any entity for public purposes. (ii) Neither this Agreement nor any term or provision hereof, nor any inclusion by reference shall be construed as being for the benefit of any person or entity not a signatory hereto. 39 City of College Station DAS License Agreement - ExteNet Systems, Inc. 7. Termination The Parties shall have the right to terminate this Agreement and the license granted herein under the following circumstances: (i) Grantor. Grantor may terminate this Agreement (a) upon thirty (30) working days written notice with an opportunity to cure within ten (10) working days therefrom in the event that City commits a material breach of this Agreement or the DAS License Agreement or uses the Licensed Fiber for any unlawful purpose, or (b) immediately upon written notice pursuant to Section 2.2.(iv). (ii) City. Upon thirty (30) calendar days written notice, City may terminate this Agreement, for any reason or for no reason (i.e., for convenience). (iii) In the event of termination in accordance herewith for any reason, City shall remove all equipment, electronics, lasers and fiber or other facilities interconnected to the College Station Cable within sixty (60) days after the effective date of the termination. All costs of any kind arising from removal of City’ equipment, lasers and fiber, or other facilities shall be borne entirely by City. 8. General Provisions 8.1 Notices (i) All notices required or permitted to be given to either party by the other party under any provisions of this Agreement shall be in writing. Notice shall be deemed served when delivered by hand or sent by a nationally recognized overnight courier service to the other party’s address set forth below during normal business hours. If a Notice is mailed, service is deemed complete upon the earlier of actual delivery or the close of business on the third business day following the date when the Notice is placed in a receptacle regularly maintained by the U.S. Postal Service addressed to the party at the address set forth below with postage pre-paid. (ii) Notices shall be given to the following: If to the CITY, to: Copy to: City of College Station City of College Station Attn: City Manager Attn: City Engineer P.O. Box 9960 P.O. Box 9960 College Station, TX 77842 College Station, TX 77842 Phone (979) 764-3500 Phone (979) 764-5007 40 City of College Station DAS License Agreement - ExteNet Systems, Inc. If to GRANTOR, to: Copy to: ExteNet Systems, Inc. ExteNet Systems, Inc. ATTN: CFO ATTN: General Counsel 3030 Warrenville Road, Suite 340 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 Lisle, IL 60532 Phone (630) 505-3800 Phone (630) 505-3800 Or to such other addresses and persons as City or Grantor may hereafter designate in a notice given in accordance with this Section 8.1. 8.2 Non-Waiver Failure of Grantor to take action to enforce compliance with any of the terms or conditions of this Agreement, or to give notice or declare this Agreement or any authorization granted hereunder terminated, or to exercise any right or privilege hereunder, shall not be construed as a continuing or future waiver of such term, condition, right or privilege, but the same shall be and remain at all times in full force and effect. 8.3 Headings All headings contained in this agreement are for convenience only and are not intended to affect the meaning or interpretation of any part of this Agreement. 8.4 Governing Law and Venue This Agreement and the rights and obligations contained in it shall be construed in accordance with, and governed by, the laws of the State of Texas, without regard to its choice of law provisions. Venue shall be in Brazos County, Texas. 8.5 Counterparts This Agreement may be executed in any number of counterparts, each of which when executed shall be deemed an original, but all of which together shall constitute one and the same instrument. 8.6 Confidentiality The parties acknowledge that Grantor will disclose proprietary and confidential network and business information to City in order to perform this Agreement. City agrees to take all reasonable steps to protect such proprietary and confidential information from public disclosure, and to make available such information internally only to City personnel with a need to know or to its legal counsel. City shall not disclose the contents of this Agreement except as required by state law in response to a formal request pursuant to the Texas Public Information Act. City shall notify Grantor within ten (10) business days of receiving a request under the Texas Public Information Act for information about this 41 City of College Station DAS License Agreement - ExteNet Systems, Inc. Agreement. 8.7. Venue Venue for any complaint, cause, case or action arising from or related to this Agreement shall be in a state or federal court of competent jurisdiction sitting in Brazos County, in the State of Texas. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. GRANTOR: CITY: EXTENET SYSTEMS, INC. CITY OF COLLEGE STATION By: By: Printed Name: City Manager Title: Date: Date: APPROVED: City Attorney Date: 42 City of College Station DAS License Agreement - ExteNet Systems, Inc. Exhibit “1” (of Dark Fiber Indefeasible Right of Use Agreement) Fiber Route Map Contract Number: ______________ Pole Attachment License Agreement - ExteNet Systems, Inc. POLE ATTACHMENT LICENSE AGREEMENT BETWEEN THE CITY OF COLLEGE STATION AND LICENSEE THIS AGREEMENT (“License Agreement”) is made by and between the City of College Station, a municipal corporation and home-rule municipality of the State of Texas located at 1101 Texas Avenue South, College Station, Texas 77840 (“CITY” or “Licensor”) and ExteNet Systems, Inc., a Delaware corporation with its principal place of business located at 3030 Warrenville Road, Suite 340, Lisle, Illinois, 60532 (“LICENSEE” or “Company” or “ExteNet”), each referred to as a “Party” or jointly as the “Parties”. WHEREAS, CITY, operates or controls certain utility poles in the public rights of way managed and controlled by CITY throughout College Station; and WHEREAS, Licensee desires to provide voice, video, internet, or data transmission and other lawful communications services within CITY’s service area; and WHEREAS, Licensee will need to place and maintain cables, equipment, facilities, including facilities for certain wireless services, within CITY’s service area and desires to place such cables, equipment, facilities, and wireless facilities on various Poles and easements owned by CITY; and WHEREAS, CITY is willing to grant Licensee a revocable, non-exclusive license to use certain Poles on the strict terms and conditions set forth in this Agreement and subject to the City of College Station's Code of Ordinances, as it may be amended from time to time; and WHEREAS, CITY is willing to allow Licensee to undertake the Make-Ready construction work necessary to prepare certain Poles to accommodate Licensee’s cables, equipment, facilities, and certain wireless facilities under the strict terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, CITY and Licensee do hereby mutually covenant and agree as follows: ARTICLE 1 DEFINITIONS AND CONSTRUCTION 1.1 Definitions: For purposes of this Agreement, capitalized terms are defined as follows: A. CITY Distribution Construction Standards means those engineering and construction standards, specifications, and designs maintained and referenced internally by CITY, and complied with in all material respects by CITY, for its own Pole distribution construction and engineering efforts. 2 Pole Attachment License Agreement - ExteNet Systems, Inc. B. Annual Usage Charge means the recurring charge that Licensee is to pay CITY annually under this Agreement for the use of CITY’s Poles. The Annual Usage Charge is in addition to any Costs and Filing Fees Licensee may incur during a Contract Year, and shall be determined by CITY as of December 1 of each Contract Year, other than the first Contract Year. The Annual Usage Charge for any Contract Year shall be the number of Attachments to which is shown on CITY’s records to exist as of December 1 of the preceding Contract Year multiplied by the Usage Rate for the new Contract Year, except as otherwise provided herein. The calculation of the Annual Usage Charge will be for each pole with attachment of equipment where no horizontal Cable attachment is present, and for any horizontal Cable Attachment occupying up to one foot of space on the pole, and will not include Attachments that are overlashed to any of Licensee’s Attachments for which a Usage Rate is chargeable, unless applicable state or federal law is amended to allow such a charge. Additional equipment (other than Wireless Facilities) that is attached to an existing Attachment and guy wires shall not constitute an additional Attachment for purposes of the Annual Usage Charge. Unless otherwise expressly provided in this Agreement, Annual Usage Charges are not refundable. C. Application means the CITY prescribed application sheet, together with all required prints, maps, proposed routes, project descriptions, and proposed schedules that Licensee must submit, in full, to CITY in order to request and be granted an Attachment License for a particular Pole or group of Poles. D. Attachment means (other than for Annual Usage Charge purposes): 1. each Cable owned, controlled, or used by Licensee, together with its associated messenger strand, guy wires, span guys, anchors, and other appurtenant and incidental facilities, affixed to a Pole regardless of the means by which affixed (a Cable lashed to another Cable and each Cable lashed to a common messenger is a separate Attachment); 2. each amplifier, repeater, controller, box, cabinet, appliance, device, or piece of equipment owned, controlled, or used by Licensee and affixed to a Pole, regardless of the means by which it is affixed; 3. each amplifier, repeater, controller, box, cabinet, appliance, device, or piece of equipment owned, controlled, or used by Licensee that is resting on the ground but is connected to a Pole, Attachment, or CITY line by a conductor; 4. each antenna, wireless transceiver, transmitter, or other similar device used for or associated with wireless communication or wireless data transmission, and cables or wires connecting such antenna, wireless transceiver, transmitter, or other similar device to other Attachments on the same Pole, provided that such antenna, wireless 3 Pole Attachment License Agreement - ExteNet Systems, Inc. transceiver, transmitter, or other similar device or equipment is not used to provide Commercial Mobile Radio Services (“CMRS”) as such term is defined in the Communications Act of 1934, as amended, and the rules and regulations of the Federal Communications Commission, unless such CMRS equipment is used pursuant to separate license agreements and permits issued by the CITY, expressly for CMRS and related purposes. 5. A new or existing service wire drop that (i) is located in the same one foot of space assigned to the Licensee’s Cable Attachment, and (ii) is attached to the same Pole as an existing Attachment of Licensee shall not constitute an additional Attachment. E. Attachment License means the revocable (solely pursuant to the terms and conditions hereof and applicable law), non-exclusive right of Licensee to make an Attachment to a Pole under this Agreement, pursuant to CITY’s approval of an Application and subject to (1) any modifications, conditions, and specifications imposed by CITY pursuant to this Agreement or applicable law when approving the Application and (2) all Design Documents issued by CITY with respect to the Attachment and Pole in question. An Attachment License authorizes Attachments solely for lawful communications purposes, as described in this Agreement. The use of any Attachment for any purpose other than providing lawful communications as described in this Agreement is prohibited and shall constitute a material breach of this Agreement. F. Boxing means the use of a cross arm or through bolt to facilitate a pole attachment on the opposite side of the pole from an y existing attachment and the installation of cable or facilities on both sides of the same pole at approximately the same height. Licensee is prohibited from Boxing on CITY poles. G. Cable means a conductor, wire, or fiber or a bound or sheathed assembly of conductors, wires, or fibers used as a wire communications or transmission medium (a bare messenger is also a Cable). H. Communications Space means the area on any given Pole, below and sufficiently remote from the Supply Space as required by Electrical Code, within which Attachments and Pole Contacts may lie. The term Communications Space has the equivalent meaning as that used in the Electrical Code. The top surface of the Communications Space must remain at least 40 inches from the lowest surface of the Supply Space and from any other electrical lines, conductors, or equipment, or below the Supply Space a distance as defined by the National Electric Safety Code for a specified condition. The bottom surface of the Communications Space must maintain a clearance in accordance with National Electrical Safety Code standards. I. Conduit means a structure owned by CITY containing one or more Ducts, usually placed in the ground, in which cables or wires may be installed. 4 Pole Attachment License Agreement - ExteNet Systems, Inc. CITY-owned electrical Conduit is expressly reserved for utility reliability and expansion purposes and is not available for use by Licensee. J. Conduit System means any combination of Ducts, Conduits, Manholes, and Handholes joined to form an integrated whole. As used in this Agreement, the term refers to Conduit Systems owned or controlled by CITY. CITY-owned electrical Conduit System is expressly reserved for utility reliability and expansion purposes and is not available for use by Licensee. K. Contract Year means any calendar year during which this Agreement is in effect, beginning January 1 and ending December 31, except that the first Contract Year shall run from the Effective Date until December 31 of that year and the final Contract Year shall run from January 1 of that year until the date of termination. L. Contractor includes subcontractors. M. Cost means the total cost reasonably incurred by CITY for any particular task under this Agreement, and includes without limitation reasonable labor, material, equipment usage, outside Contractor and vendor charges, reasonable overhead, and reasonable general and administrative expenses. Costs may be incurred for, without limitation, engineering and engineering review, Make- Ready construction, inspections and oversight, auditing, public relations and intervention, and other services. Certain Cost rates are specified in Exhibit A to this Agreement, which CITY may change no more than once per year upon 60- days' notice to Licensee; provided, however, that any such change to such Cost rates shall be based on CITY’s reasonable cost of labor, materials, and equipment usage. Subject to the foregoing, Costs shall be determined by CITY in its reasonable judgment and reasonable discretion, and shall be paid by Licensee in accordance with either of the following, at CITY’s sole option: 1. Any advance estimate provided by CITY, in which event CITY shall have the right to refuse to incur the Costs until the estimate is paid; and/or 2. Any final invoice submitted by CITY. In the event an advance estimate was paid by Licensee for Costs, the final invoice will reflect such payment. N. Design Documents mean all specifications, drawings, schematics, blueprints, engineering documents, and written requirements for materials, equipment, design, construction, and workmanship issued by CITY to Licensee with respect to Make-Ready and installation work on a particular Attachment or Pole or group of Attachments or Poles. 5 Pole Attachment License Agreement - ExteNet Systems, Inc. O. Duct means a single enclosed tube, pipe, or channel for enclosing and carrying cables, wires, and other facilities owned by CITY. As used in this Agreement, the term Duct includes Inner-Ducts created by subdividing a Duct into smaller channels. CITY-owned electrical Duct is expressly reserved for utility reliability and expansion purposes and is not available for use by Li censee. P. Effective Date means the date CITY signs this Agreement as shown on the signature page of this Agreement. Q. Electrical Code means the National Electrical Safety Code (NESC), the National Electrical Code (NEC), and Chapter 752 of the Texas Health and Safety Code. R. Filing Fee means the initial, non-refundable fee charged to Licensee for filing an Application for an Attachment License. Filing Fees are set by the CITY and shall not exceed the actual and reasonable cost to CITY of reviewing and processing an Application. The Filing Fee is solely to compensate CITY for reviewing and processing an Application and does not include or offset Costs or Annual Usage Charges. S. Handholes means an enclosure, usually below ground level, used for the purpose of installing, operating, and maintaining Attachments in a Conduit. A Handhole is too small to permit personnel to physically enter. CITY-owned electrical Handholes are expressly reserved for utility reliability and expansion purposes and are not available for use by Licensee. T. Infrastructure Usage Regulations means the College Station City Code of Ordinances and any other CITY ordinance that may be enacted to govern electric utility infrastructure usage or rental. U. Inner-Duct means a pathway created by subdividing a Duct into smaller channels. City-owned electrical Inner-Duct is expressly reserved for utility reliability and expansion purposes and is not available for use by Licensee. V. Manhole means an enclosure, usually below ground level and entered through a hole on the surface covered with a cast iron or concrete Manhole cover, which personnel may enter and use for the purpose of installing, operating, and maintaining Attachments in a Conduit. CITY-owned electrical Manholes are expressly reserved for utility reliability and expansion purposes and are not available for use by Licensee. W. Pole means any electric distribution pole owned by CITY that supports electric lines having a nominal voltage of not more than 35kV; provided, however, that any electric distribution pole having a nominal voltage of more than 35kV will also be a “Pole” if the pole is also used for distribution of power from a local substation to customers. Unless otherwise agreed by CITY with respect to a 6 Pole Attachment License Agreement - ExteNet Systems, Inc. particular pole, the term Pole does not include (1) street lighting, traffic signal, or night watchman poles, (2) poles or towers supporting transmission lines carrying a nominal voltage greater than 35kV, unless such poles are also used to support transmission lines carrying a nominal voltage of not more than 35kV, (3) any structure or facility within a substation, (4) conduits (except as otherwise provided in Article 11), or (5) any structure not used for electric power distribution. X. Pole Contact means the point or contiguous area on a Pole at which one or more of Licensee’s Attachments make physical contact with (1) a Pole or (2) a Third Party User’s Attachment, during a Contract Year, regardless of the duration for which the Pole Contact existed. Y. Make-Ready means all work required to accommodate Licensee’s Attachments on a Pole with respect to CITY and Third Party User needs and in compliance with Electrical Code, CITY Distribution Construction Standards, generally accepted engineering and construction practices, and applicable laws. Z. Maximum Lawful Usage Rate means the maximum amount that CITY may lawfully charge for an Attachment under applicable state and federal law, rules and regulations in effect from time to time. If, for any Contract Year, applicable state or federal law does not limit the amount CITY may charge Licensee for a particular Attachment or service under this Agreement, the Maximum Lawful Rate for the Attachment or service shall be the amount that CITY determines, in its sole judgment and discretion, to constitute a reasonable and non-discriminatory annual Usage Rate. AA. Supply Space means the area on any given Pole, above the Communications Space, that is reserved for the placement of electric supply lines, electrical equipment, and other CITY facilities. The term Supply Space has the equivalent meaning as that used in the Electrical Code. Licensee may not place any Attachments or Pole Contacts in the Supply Space. BB. Third Party User means any third party that has, or may be granted, an Attachment License or other right to attach with respect to a Pole. Third-parties that are allowed by Licensee to overlash third-party conductors onto existing Licensee Attachment(s) shall also execute a Pole Attachment License Agreement with the CITY, regardless of the duration for which the Pole Contact existed. At least thirty (30) days before third-party overlash operations, Licensee shall provide advanced written Notice to CITY that identifies the proposed third-party overlashing entity and all proposed third-party overlash locations. CC. Unauthorized Attachment means an Attachment or any other affixing or placing of Licensee’s facilities onto CITY property for which Licensee does not have a valid Attachment License. 7 Pole Attachment License Agreement - ExteNet Systems, Inc. DD. Usage Rate means, for each given Contract Year, the amount Licensee must pay CITY for each Attachment. EE. Wireless Facilities means an antenna, wireless transceiver, transmitter, or other similar device used for or associated with wireless communication or wireless data transmission, provided that such Wireless Facilities are not used to provide Commercial Mobile Radio Services (“CMRS”) as such term is defined in the Communications Act of 1934, as amended, and the rules and regulations of the Federal Communications Commission, unless such CMRS equipment is used pursuant to separate license agreements and permits issued by the CITY, expressly for CMRS and related purposes. FF. Wireless Facilities Rental Rate means, for each given Contract Year, the amount Licensee must pay CITY for attaching Wireless Facilities to a Pole. Rental and license rates for CMRS and related services and equipment shall be set by separately negotiated license agreements with CITY. 1.2 Syntax Except as otherwise expressly provided herein, all nouns, pronouns and variations thereof shall be deemed to refer to the singular and plural. 1.3 Amendments Any reference to a law, code, or document shall mean such law, code, or document as it may be amended from time to time. 1.4 Third Party User Agreements CITY has in the past entered into other Pole usage agreements with Third Party Users. In construing this Agreement, no variations between this Agreement and other agreements with Third Party Users shall have any evidentiary value or be construed against CITY. 1.5 No Construction against CITY The rule of construction that ambiguities in a contract are to be construed against the drafting party shall not apply to this Agreement. 1.6 Headings The descriptive headings in this Agreement are only for the convenience of the parties and shall not be deemed to affect the meaning or construction of any provision. ARTICLE 2 SCOPE AND TERM OF AGREEMENT 2.1 General Purpose In accordance with the provisions of this Agreement, CITY may issue Attachment Licenses to Licensee on the terms and conditions set forth herein. Before Licensee makes any Attachment to or begins any work on a Pole, excluding service drops, it shall file an Application and await CITY’s issuance of an Attachment License and Design Documents with respect to that particular Attachment or Pole, as set forth in Article 4. Nothing in this Agreement shall be construed to obligate CITY to grant an Attachment License with respect to any particular Pole where Licensee has failed to fulfill the requirements herein for the grant of such Attachment License. 8 Pole Attachment License Agreement - ExteNet Systems, Inc. 2.2 Term The initial term of this Agreement is five (5) years, beginning on the Effective Date and renewing thereafter for four (4) successive three (3) year terms, unless terminated by either Party. At the end of each then-current term, Licensee shall, if it intends to renew, give CITY written notice of its request to renew before the end of the then-current term. If Licensee has not materially defaulted during the course of the then-current term (other than any material default that Licensee cured), the request to renew shall be granted. If Licensee has materially defaulted and not cured such default, the request to renew will be granted in CITY’s reasonable discretion. If the request to renew is denied, CITY will give written notice of the reasons for denial within 30 days of receiving Licensee’s request and this Agreement will expire at the term’s end. 2.3 Existing Facilities Only Except as otherwise set forth in paragraph 6.4, (i) CITY is under no obligation to add, build, keep, maintain, or replace Poles or any other facilities for the use or convenience of Licensee; and (ii) the maintenance, replacement, removal, relocation, or addition of CITY Poles and facilities shall remain within the sole province and discretion of CITY. Notwithstanding the foregoing, any actions of CITY under this Agreement shall be taken on a nondiscriminatory basis. 2.4 Poles Only This Agreement addresses only Attachments to CITY Poles. This Agreement does not authorize Licensee to install or maintain Attachments on other CITY property and facilities, including without limitation conduits, buildings, and towers. 2.5 City Rights-of-Ways Nothing in this Agreement shall be construed to grant Licensee any right or authorization to use or occupy the public streets or rights -of- way of the CITY. Except for the placement of Attachments on Poles or other facilities covered by this Agreement and notwithstanding that a Pole to which Licensee may attach its facilities is in the CITY’s public streets or rights-of-way, Licensee and CITY agree that the authority to attach to CITY Poles does not grant Licensee authority to use or occupy CITY’s public streets or rights-of-way. 2.6 Private Easements Licensee understands that some Poles are located on dedicated easements over private property that, by their terms, restrict the use of the easement to CITY for the sole purpose of electric distribution or transmission. Nothing in this Agreement shall compel CITY to extend any property rights it does not have. Nothing in this Agreement and no action by CITY shall be construed to offer, grant or approve any right or license to use such easement or to affix an Attachment to a Pole within such easement without the consent of the owner of the property to which the easement is appurtenant, unless otherwise allowed by law. CITY has no obligation to expand or obtain rights in such easement on Licensee’s behalf. It is the sole obligation of Licensee to obtain the necessary consent or additional easement rights, if any, at Licensee’s own expense. 2.7 Eminent Domain CITY is under no obligation to exercise any power of eminent domain on Licensee’s behalf. 9 Pole Attachment License Agreement - ExteNet Systems, Inc. 2.8 No Property Rights In Poles All Poles shall remain the property of CITY and no payment made by Licensee shall create or vest in Licensee any ownership right, title, or interest in any Pole, but Licensee’s interest shall remain a bare license. The existence of such a license shall not in any way alter or affect CITY’s right to use, change, reclaim, operate, maintain, or remove its Poles, subject to the terms and conditions hereof. Nothing herein shall prohibit Licensee from repairing, operating, or maintaining a Pole at Licensee’s sole cost and expense if: (i) CITY expressly abandons the Pole or constructively abandons the Pole by electing not to repair, operate, or maintain the Pole to such an extent that a reasonable person would conclude that CITY has abandoned the Pole, and (ii) Licensee is permitted to do so under the City Code, the terms of Licensee’s franchise, if applicable, and any applicable easements; provided, however, that CITY may remove an abandoned Pole if such removal manifestly serves the public interest. If CITY's use of its Poles materially and adversely affects Licensee’s use and operation of an Attachment, Licensee may, by written notice to CITY, remove its Attachments from any adversely affected Pole. Such termination shall be implemented by written notice to CITY. 2.9 License not Exclusive Licensee acknowledges that CITY has entered into before, and may enter into in the future, similar or other agreements concerning the use of Poles by third parties, including Licensee’s competitors. Nothing in this Agreement shall be construed to limit or in any way affect CITY’s right or ability to enter into or honor other agreements, or to grant any rights, licenses, or access concerning any Pole, irrespective of the character or degree of economic competition or loss caused to Licensee, so long as CITY’s actions are nondiscriminatory. 2.10 CITY Priority The primary purpose of a Pole is electric distribution and public health and safety, and CITY reserves to itself first priority in the use of a Pole. In the event of any conflict between the use of a Pole by CITY and Licensee, the use of a Pole for the distribution of electric power to CITY customers shall prevail and have priority over Licensee's use of the Pole. CITY retains and shall have exclusive use of the Supply Space. All of Licensee's Aerial Attachments shall remain within the Communications Space. 2.11 Discretion of CITY Final CITY reserves the right to deny any Application pursuant to the terms and conditions hereof, reserve any Pole to its own use pursuant to a bona fide development plan, or modify any Pole for legal, safety, mechanical, structural, engineering, environmental, reliability, or service reasons. Determination of these issues shall at all times remain within the reasonable discretion of CITY, subject in all respects to the terms and conditions hereof. Licensee will not be required to pay for any modifications to any Pole or its Attachments in order to accommodate a Third Party User. 2.12 No Cost or Expense to CITY The engineering, construction, installation, use, operation, and maintenance of Licensee’s Attachments shall be at Licensee’s sole expense. Unless otherwise expressly provided herein, nothing in this Agreement shall be construed to require CITY to expend any funds or to incur or bear any cost or expense. 10 Pole Attachment License Agreement - ExteNet Systems, Inc. ARTICLE 3 USAGE RATES AND CHARGES 3.1 Payment Due upon License Approval CITY’s approval of an Attachment License shall be conditioned on Licensee’s payment, within 45 days of approval, of the then current Usage Rate for each approved Attachment, prorated to reflect the number of months remaining in the Contract Year after CITY’s invoice, with any partial month being considered to be a full month. 3.2 Calculation of Usage Rates For each Contract Year, the Usage Rate shall be no higher than the Maximum Lawful Usage Rate. Before each new Contract Year, CITY will notify Licensee in writing of the Maximum Lawful Usage Rate for such Contract Year at least 60 days in advance of any invoice. The CITY shall provide its Maximum Lawful Usage Rate calculations and relevant support data so Licensee may verify that the Rate is calculated in accordance with applicable law. The Maximum Lawful Rate may take into account changes in applicable laws that are to go into effect during the upcoming Contract Year. If Licensee disagrees in good faith with CITY’s determination of the Maximum Lawful Usage Rate, Licensee may protest in writing within 30 days of receipt of the notice. The protest shall include copies of all records and other documentation that support Licensee’s position. Failure to timely protest CITY’s proposed Usage Rate shall constitute agreement to and acceptance of CITY’s determination. If Licensee does timely protest a proposed Usage Rate, the parties shall endeavor in good faith to negotiate a resolution of the dispute. If the parties are unable to resolve the dispute within 60 days from the date of Licensee’s protest, then either party may seek relief from the Texas Public Utilities Commission pursuant to Chapter 54.204 of the Texas Utilities Code, any successor regulation, or any other law conferring jurisdiction on the Texas Public Utilities Commission. The Texas Public Utilities Commission shall be the sole and exclusive forum for resolution of a dispute about a Usage Rate, unless the Texas Public Utilities Commission lacks jurisdiction, in which event the dispute resolution provisions set forth in paragraph 18.7 shall control. If the dispute is not resolved by the time the Annual Usage Charge invoice is issued, Licensee shall nonetheless pay the invoice based upon the disputed Usage Rate. Payment by Licensee of the invoice shall not prejudice Licensee’s ability to continue to contest the Usage Rate, and CITY agrees not to interpose any claim, defense, or counterclaim that Licensee has waived its right to contest the Usage Rate by paying the disputed invoice. 3.3 Subsequent Annual Usage Charges In each January of each Contract Year and continuing thereafter until the expiration or termination of this Agreement, CITY will invoice for, and Licensee shall pay, within 45 days after receipt of invoice, the Annual Usage Charge for the new Contract Year. All overdue balances shall accrue interest at the rate of 1% per month from the due date until paid, or the maximum rate allowed by law, whichever is less. 3.4 Invoice Disputes If Licensee believes in good faith that an Attachment count contained in an Annual Usage Charge invoice is incorrect, it may pay the invoice 11 Pole Attachment License Agreement - ExteNet Systems, Inc. under protest. To protest an invoice, Licensee must give CITY written notice of the nature of its protest no later than the due date for payment of the invoice together with copies of records and other documentation supporting its position. The parties shall promptly meet to resolve the discrepancies in their records to determine the correct Attachment count. If the parties are unable to resolve a discrepancy as to the correct count, the parties may, upon mutual agreement, jointly conduct a physical inventory of geographical grids or other mutually agreeable census to determine the correct count. The cost to conduct such inventory or census shall be equally divided between the parties. 3.5 Adjustments If upon resolution of a dispute between the parties under paragraph 3.2 or paragraph 3.4, a refund is due to Licensee, CITY shall refund the amount of the overcharge together with interest at the rate specified in paragraph 18.5 from the date of CITY’s receipt of the protested Annual Usage Charge payment. If Licensee owes additional money, a corrected invoice shall be issued by CITY for the additional Annual Usage Charge due, plus accrued interest at the rate specified in paragraph 18.5 from the due date of the original invoice. 3.6 No Allowances Unless otherwise expressly stated in this Agreement, there shall be no offsets against any sums due under this Agreement, or any other allowances, for system improvement, materials or labor supplied, upgrading, life extension, or other direct or incidental benefits conferred by Licensee upon CITY or its poles, system, or facilities. All such improvements and benefits belong solely to CITY, and the fact that such improvements or benefits may accrue shall in no way alter or affect Licensee’s obligations under this Agreement. 3.7 Wireless Facilities Rental Rate CITY shall not impose a Wireless Facilities Rental Rate for any Attachment that is a Wireless Facility used exclusively to provide wireless services in a non-discriminatory manner to the public without charge. In the event Licensee offers commercial service using Wireless Facilities attached to a Pole that are not classified as Commercial Mobile Radio Services, CITY and Licensee shall negotiate in good faith on a just and reasonable rental rate for such Attachments. In no event shall the Wireless Facilities Rental Rate for Attachments that are Wireless Facilities exceed the Maximum Lawful Usage Rate. 3.8 Commercial Mobile Radio Services CITY is willing to grant a non- exclusive license to install, maintain, operate, repair, and replace a Distributed Antenna System (“DAS”), DAS Network, micro or small cell installations within the communications space on existing poles within discrete segments of the rights-of-way, subject to the requirements of a separate license agreement and pursuant to permits issued by the CITY. The separate license agreement is consistent with Section §54.205 of the Public Utilities 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”. 12 Pole Attachment License Agreement - ExteNet Systems, Inc. ARTICLE 4 ATTACHMENT LICENSES 4.1 Attachment License Required Licensee shall have an Attachment License with CITY before performing any work on a Pole or making any Contact with or Attachment to, a Pole or other facility on CITY property or easement. Maintenance of existing equipment shall be allowed if Licensee has a current Attachment License that covers the existing Attachments and equipment. Licensee must have an Attachment License for each Pole or group of Poles to which Licensee’s Attachments are to be affixed, identifying each separate Attachment to the Pole(s) by type. An Attachment License is not needed to perform visual inspections necessary for preparing an Attachment Application. 4.2 Overlashing Licensee must obtain a separate and additional Attachment License for any Attachment it seeks to overlash to an existing Licensee or Third Party User Attachment or Pole Contact. Licensee may not allow another party to overlash to Licensee’s facilities without such party first having an agreement with and Attachment License from CITY. Poles are the sole property of CITY, and Licensee shall not charge or accept any financial consideration for allowing a third party to overlash to an Attachment or Pole Contact without CITY’s written consent. 4.3 Application Process The Application must be submitted in the then- approved CITY format. The Application form, and all required supporting documentation and other procedures, are within the reasonable discretion of CITY and may change from time to time upon prior written notice (provided such changes are not inconsistent with the terms and conditions of this Agreement and applied in a nondiscriminatory manner). . CITY may reject entirely an incomplete Application, or it may request additional information to support the Application, in which event the requested information shall be promptly furnished. In the event that CITY denies an Application, it shall provide written notice of its reason for denial to Licensee within 10 days of the date the Application was submitted. 4.4 Filing Fee The Filing Fee shall be paid at the time the Application is submitted. No Application will be considered before payment of the Filing Fee. Fee Schedule is attached as an exhibit. 4.5 Approval (a) CITY retains sole and complete discretion to deny or modify any Attachment Application in order to be able to preserve the safety, reliability, integrity, and effectiveness of the electric distribution system that constitutes the core of its business and its governmental mandate. CITY will approve, modify, or deny an Attachment Application within 15 business days of submission. Licensee may request CITY to reconsider a denial or modification of an Attachment Application. CITY may approve an Application as submitted, approve it on a modified or conditional basis, or may deny the Application in accordance with the policies adopted by CITY pursuant thereto. An Application may be denied solely 13 Pole Attachment License Agreement - ExteNet Systems, Inc. for the reasons set forth. The CITY’s Director of Utilities may deny an application if: 1. the applicant fails to submit a complete application; 2. the applicant fails to supplement its application with additional information or otherwise cooperate with the utility as requested in the evaluation of the application; 3. the applicant fails to pay the applicable filing fee; 4. the proposed attachments are of excessive size or weight or would otherwise subject utility infrastructure to unacceptable levels of additional stress; 5. approval would jeopardize the reliability or integrity of the electric system or of individual units of utility infrastructure; 6. approval would present a safety hazard to a City employee or the public; 7. approval would impair the City’s ability to operate or maintain utility infrastructure; or 8. approval would require an unacceptable change, upgrade, or addition to utility infrastructure. (b) In the event that CITY intends to deny an Attachment Application because the proposed Attachments are of excessive size or weight or would otherwise subject utility infrastructure to unacceptable levels of stress, because approval would jeopardize the reliability or integrity of the electric system or of individual units of utility infrastructure, because approval would present a safety hazard to a CITY employee or the public, because approval would impair the CITY’s ability to operate or maintain utility infrastructure, or because of any other reason for which denial is permitted by law, and the Pole may be modified or replaced to resolve that issue, CITY shall approve the Attachment Application provided that (i) the Licensee agrees to pay CITY’s Costs to so modify or replace the Pole, and (ii) the Attachment Application is otherwise acceptable and grantable pursuant to the terms and conditions of this Agreement and applicable law (provided, however, that nothing in this sentence abridges or modifies the requirements set forth in paragraph 6.4). 4.6 Order of Approval Applications concerning a particular Pole will be considered and acted upon by CITY in the order in which they are filed. For purposes of evaluating an Application with respect to Pole capacity and existing Third Party User Attachments, CITY will consider not only all existing attachments but also all valid Attachment Licenses and reserved CITY space. 4.7 Engineering Licensee shall submit documentation of its field evaluation using a CITY-approved Licensee employee. CITY shall not unreasonably withhold, condition, or delay grant of approval for a CITY-approved Licensee employee. CITY shall 14 Pole Attachment License Agreement - ExteNet Systems, Inc. accept and rely on such documentation, but shall reserve the right to perform, or have a firm retained by CITY perform, its own engineering and field evaluation including pole loading analysis. All Costs for such engineering and field evaluation shall be paid by Licensee. With respect to a particular Pole, CITY’s engineering shall take into account and allow space for all Attachment Licenses, which are valid for that Pole. In granting an Attachment License, CITY shall issue to Licensee the related Design Documents that were paid for by the Licensee. 4.8 Attachment License Expiration All Attachment Licenses and Design Documents and any rights conferred thereunder shall expire on the later of (i) 120 days after issuance (or such longer period as the parties may agree to in writing) or (ii) 60 days after completion of all Make-Ready work, unless all Make-Ready and installation work has occurred in accordance with the Design Documents before the end of such period. If an Attachment License for a Pole expires, Licensee shall re-apply, de novo, for an Attachment License and must receive such License from the CITY before Licensee can begin working on or making an Attachment to that Pole. ARTICLE 5 GENERAL REQUIREMENTS 5.1 Work Site Safety In performing any work on or near Poles supporting energized electric lines, Licensee, and its Contractors, agents and employees shall comply with Chapter 752 of the Texas Health and Safety Code and all federal, state and local laws, rules and regulations governing work in proximity to energized electric lines, including without limitation, those promulgated by the Occupational Safety and Health Administration. LICENSEE SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS CITY, ITS OFFICERS, EMPLOYEES, VOLUNTEERS, AGENTS, CONTRACTORS, AND SUBCONTRACTORS FROM AND AGAINST ALL CLAIMS, DEMANDS, ACTIONS, SUITS AND JUDGMENTS ARISING FROM OR CONCERNING A BREACH BY LICENSEE OF ITS OBLIGATIONS UNDER THIS PARAGRAPH. 5.2 Electrical Code Licensee, and its Contractors, agents and employees, and all work, Contacts, and Attachments on a Pole shall at all times comply with the-then current Electrical Code, as applicable. 5.3 Design Documents All Make-Ready, installation, and other work performed by Licensee on a Pole or Attachment shall at all times comply with the Design Documents and CITY Distribution Construction Standards. 5.4 Service Interruptions Licensee shall not cause any interruption of CITY or Third Party User services without first obtaining CITY’s express written consent as provided by Article 6. If it is necessary for CITY to de-energize any equipment or lines for Licensee’s benefit, Licensee shall reimburse CITY in full for all Costs in doing so. In the event Licensee damages any of CITY’s equipment or lines or causes any service interruption, Licensee, at its sole expense, shall immediately do all things reasonable to avoid injury and further damage, direct and incidental, resulting therefrom and shall notify 15 Pole Attachment License Agreement - ExteNet Systems, Inc. CITY immediately. Licensee shall be liable for all Costs resulting from such damage and any necessary repairs. 5.5 CITY Oversight CITY shall have the right to conduct on-site field oversight and inspections of Licensee’s Attachments, work, and operations on Poles and in CITY easements. CITY may conduct pre-construction surveys, and in-progress and post-construction inspections at Licensee’s expense and shall provide Licensee with the results. CITY shall at all times have unrestricted access to Poles and to all field work sites of Licensee and Licensee’s Contractors. Both CITY and CITY’s representative at any Pole site shall have complete and final authority to order the immediate suspension of Licensee’s construction or installation activities if CITY or CITY’s representative, in its sole discretion and judgment, deems such action necessary for reasons of safety, engineering, electrical service reliability, or failure to obtain proper licenses and permits. In the event of an oral suspension order, CITY shall send written notice to Licensee within three (3) days after such suspension, identifying the alleged bases for suspension. Such suspension shall be in effect until such time as the Licensee cures, at Licensee's sole Cost, the alleged bases for suspension. In no event shall CITY be responsible for any damages, losses, or costs incurred by Licensee as a result of such work stoppage. Licensee’s failure to obey a suspension order issued in accordance with this Agreement shall constitute a material breach of this Agreement. 5.6 Laws To the extent that the Code of the City of College Station lawfully requires Licensee to possess a valid franchise or construction permit before engaging in a particular act, Licensee must comply with such requirement before beginning Make-Ready construction or installing Attachments. Nothing in this Agreement shall be construed as waiving other CITY requirements or permitting the construction of facilities other than Attachments. Attachments must conform to local, state, or federal law. Licensee's use of any Pole and Licensee's Attachments shall at all times conform to the requirements of the CITY’s Code of Ordinances, Infrastructure Usage Regulations, and the published policies promulgated by the CITY pursuant thereto. 5.7 Other Permits Licensee shall apply for and obtain all licenses, permits or other authorizations required to provide its service or to use, operate or maintain its Attachments. If Licensee is denied any required license, permit or authorization, Licensee may, upon written notice to CITY, terminate any Attachment License granted hereunder that was predicated upon the grant of such license, permit or authorization. 5.8 Taxes and Liens Licensee shall pay all taxes and assessments lawfully levied on Licensee's Attachments and any tax, assessments, fee, or charge levied on Poles solely because of their use by Licensee. In no event shall Licensee permit any lien to be filed or to exist upon any Poles or CITY property as a result of any claim against Licensee. Licensee shall promptly pay upon receipt of written notice from CITY all such liens together with all fees and costs necessary to discharge same, or shall bond around such liens in the manner provided by law. 16 Pole Attachment License Agreement - ExteNet Systems, Inc. 5.9 Electrical Code Conflicts In the event of a difference, conflict, or discrepancy between or among the requirements or practices of any Electrical Code or safety regulations, laws, or industry standards the following rules shall appl y: (A) if one specification or practice is more stringent than the other, the more stringent shall apply; (B) if one is not more stringent than the other, the NESC shall govern to the extent permitted by law; (C) if the first two rules are insufficient to resolve the conflict in a clear and unambiguous manner, CITY shall determine which standard shall apply, giving highest priority to safety considerations. 5.10 Design Document Conflicts In the event of a difference, conflict, or discrepancy between or among the requirements or practices of the Design Documents and CITY Distribution Construction Standard, the Design Documents shall govern. In the event Licensee believes a Design Document or CITY Distribution Construction Standard is inconsistent with Electrical Code or applicable law, Licensee shall refer the matter to CITY for determination. 5.11 No Interference Licensee will use and operate any Wireless Facilities in a manner that will not cause radio frequency interference with the facilities or operations of CITY. Licensee will use and operate any Wireless Facilities in a manner that will not cause radio frequency interference with the Wireless Facilities of Third Party Users, provided that such other Third Party User’s installation of Wireless Facilities predates the Licensee’s installation of its Wireless Facilities. In the event any such interference occurs, Licensee will immediately upon receiving notice from CITY or the Third Party User, investigate the cause of such interference and if Licensee is determined to be the cause of such interference shall immediately cease operations until such interference is rectified, testing of said resolution excepted In the event Licensee does not cease interfering operations then the Attachments constituting such Wireless Facilities shall become Unauthorized Attachments. CITY agrees that in the event CITY allows any Third Party User to use and operate Wireless Facilities on a Pole, CITY will require such Third Party User to agree (i) not to cause radio frequency interference to Licensee’s Wireless Facilities on the Pole, provided that Licensee’s installation of Wireless Facilities predates the Third Party User’s installation of its Wireless Facilities; (ii) in the event such interference occurs, to cease operations immediately upon receiving notice from CITY or the Licensee and not resume operations until the Third Party User has eliminated such interference; and (iii) that failure to cease interfering operations will cause such Third Party User’s Attachments to become unauthorized attachments. 5.12 Electricity for Wireless Facilities CITY shall supply electricity to Licensee’s Wireless Facilities pursuant to and subject to the tariffed rates, terms, and conditions for such electrical service. 17 Pole Attachment License Agreement - ExteNet Systems, Inc. ARTICLE 6 MAKE-READY CONSTRUCTION PART A - GENERAL PROVISIONS 6.1 Performance of Make-Ready Work The Parties shall negotiate the performance of the necessary Make-Ready work, except as set forth in paragraphs 6.3, 6.4, and 6.5. All Make-Ready Costs shall be borne solely by Licensee, including without limitation, costs of planning, engineering, construction, and pole replacement, except as set forth in paragraphs 6.3, 6.4, and 6.5. 6.2 Third Party Facilities Make-Ready Costs that are to be paid by Licensee include all costs and expenses to relocate or alter the attachments or facilities of any pre- existing Third Party User as may be necessary to accommodate Licensee’s Attachment. CITY shall provide at least 30 days’ notice to each Third Party User that needs to relocate or alter its facilities to accommodate Licensee and attempt to make all other necessary arrangements directly with the affected Third Party Users. CITY agrees to make best efforts to cause a Third Party User to relocate such Third Party User’s facilities, including declaring such Third Party User’s facilities to be unauthorized, in accordance with the terms of CITY’s pole attachment agreement with such Third Party User, if the Third Party User fails to relocate its facilities within the time periods specified in the pole attachment agreement between CITY and such Third Party User. 6.3 Non-Conforming Attachments Notwithstanding paragraphs 6.1 or 6.2, Licensee shall not be liable for any cost or expense to modify, replace, relocate, or alter any attachments of CITY or a Third Party User that do not comply with the Electrical Code or applicable law. Licensee shall notify CITY if Licensee determines that any Third Party User attachments are out of compliance with the Electrical Code or applicable law, and CITY shall use its best efforts to cause any Third Party User to bring existing attachments into compliance within 30 days of such notice. If after 30 days the owner of the out-of- compliance attachment has not completed its work and brought its attachment in to compliance with the Electrical Code and applicable law, CITY shall declare such Third Party User’s facilities to be unauthorized, and CITY or Licensee may relocate or alter the Third Party User’s attachment at the Third Party User’s expense. CITY shall use its best efforts to cause the Third Party User to pay Licensee its costs and expenses for bringing such Third Party User’s attachments in to compliance with the Electrical Code and applicable law. 6.4 Pole Replacement and Maintenance CITY shall change, modify, or replace any Pole, at Licensee’s request, unless such change, modification, or replacement will jeopardize the safety or reliability of CITY’s electrical service. Except as otherwise provided in this paragraph, Pole replacement Costs shall be borne by Licensee if Pole replacement is requested by Licensee or if, because of insufficient capacity, approval of Licensee’s Attachment Application first causes the need for the Pole replacement. CITY agrees that if a Pole is broken, rotten, or not otherwise in compliance with the Electrical Code or applicable law, standard Pole replacement costs shall be borne by CITY, except 18 Pole Attachment License Agreement - ExteNet Systems, Inc. for additional pole height above the height of the existing pole; or pole strength required to accommodate Licensee’s new attachments. If the non-compliance with the Electrical Code or applicable law or the broken pole is the result of Licensee’s actions or the actions of Licensee’s subcontractors, the Licensee shall be liable for the expense. 6.5 Pole Upgrades Notwithstanding anything set forth in paragraph 6.4 with respect to Licensee’s responsibility to pay CITY’s costs of changing, modifying, or replacing any Pole, CITY shall continue its existing Pole maintenance, modernization, and upgrade program. PART B - CONSTRUCTION BY LICENSEE 6.6 Construction by Licensee All work performed by or on behalf of Licensee pursuant to an Attachment License shall be done in a good and workmanlike manner. Licensee shall also comply with the provisions of Exhibit B, which CITY may reasonably change upon 60 days written notice to Licensee (provided that such change is not inconsistent with the terms and conditions of the body of this Agreement). Licensee’s acceptance of an Attachment License constitutes Licensee’s agreement to be bound by its terms and conditions. All Attachments, Contacts, Make-Ready work, and other work performed or maintained by Licensee on a Pole shall strictly comply with Electrical Code, the Design Documents, and other laws and standards as provided by Article 5. Any material deviation shall constitute a material default under this Agreement if not cured within forty-five (45) calendar days or within such other mutually agreed upon timeframe, and shall afford CITY all lawful remedies it may have available to it, including without limitation the right to suspend Licensee’s Make-Ready and installation operations and terminate Attachment Licenses for any non-compliant Attachments. 6.7 Coordination of Make-Ready Efforts In the event multiple entities have been granted Attachment Licenses for the same Pole and a disagreement arises between them as to construction and installation schedules, CITY shall have the right to require a representative of Licensee who has authority to agree on these issues to attend a meeting called by CITY to discuss and agree on these issues. Failure to reach an agreement shall result in mandatory submittal of these issues to mediation at the applicants’ expense; provided, however, that if CITY in its reasonable discretion determines that Licensee is not bargaining in good faith, CITY may revoke or modify Licensee’s Attachment License. 6.8 Authority to Proceed An Attachment License is not an authority to proceed with construction work on a Pole. Before beginning construction work on a Pole, Licensee shall give CITY not less than three (3) days written notice of the Pole location, the proposed date on which work will commence, and whether any electrical service interruptions or de-energizations will be required. If CITY does not approve of such date (such approval not to be unreasonably withheld, conditioned, or delayed), the parties shall mutually agree on a date for construction to take place and shall make all necessary arrangements and schedules for line and equipment de-energization. Licensee shall not begin construction work without authority to proceed from CITY, and shall comply with the agreed upon construction and de-energization schedule. Licensee shall be responsible 19 Pole Attachment License Agreement - ExteNet Systems, Inc. for coordinating its efforts with CITY field inspection personnel and for any actions or notifications required by the CITY’s Utilities Dispatch Center. LICENSEE SHALL INDEMNIFY CITY FROM ALL CLAIMS FOR LOSS, HARM, PROPERTY DAMAGE, AND BODILY INJURY OR DEATH IN CONNECTION WITH ANY WORK PERFORMED WITHOUT THE NOTICE AND ARRANGEMENTS CONTEMPLATED BY THIS PARAGRAPH. 6.9 Service Interruptions In the event Licensee’s construction efforts require a scheduled interruption in CITY or Third Party User services or otherwise require de- energization of CITY lines, time shall be of the essence. If Licensee fails to comply with the construction schedule as agreed upon pursuant to the preceding paragraph, CITY may opt to immediately revoke Licensee’s Attachment License(s) for the Poles in question and restore the interrupted power and services at Licensee’s sole Cost, unless Licensee’s failure results from Force Majeure or through the fault of CITY or a Third Party User. 6.10 Contractors All contractor work for Make-Ready work in or around the Supply Space for the initial installation of all facilities, performed by or on behalf of Licensee pursuant to an Attachment License, shall be done by a Contractor approved by CITY. Licensee may propose new Contractors from time-to-time, and CITY shall approve such proposed Contractor unless there is a demonstrable reason for not approving such Contractor. Only orderly and competent workers shall be used. Neither Licensee's workers nor those of its Contractors may possess any weapon, or use, possess or be un der the influence of any alcoholic or other intoxicating beverage, drug or controlled substance while performing any work on or around a Pole. If CITY finds any Licensee or contract worker to be incompetent, disorderly, in the possession of any weapon, or in the possession of or under the influence of alcohol or drugs, Licensee shall promptly remove such worker from all work on or around Poles, and may not again use such worker on work on or around Poles without the prior written consent of CITY. 6.11 Materials Should the Licensee be approved to undertake the electrical Make-Ready Construction, Licensee shall furnish all necessary materials and hardware including but not limited to: poles, crossarms, mounting hardware, guys, anchors, insulators, conductors, and any associated miscellaneous hardware. All materials used by Licensee for electrical Make-Ready work on Poles shall be obtained from CITY-approved vendors and shall be new and of good quality and free from known material defects. The use of attachment arms is prohibited without CITY’s prior written consent. 6.12 Licensee to Bear Costs All Costs and expenses necessary to complete the Make-Ready construction, including the transfer of CITY facilities and Third Party User facilities, shall be borne entirely by Licensee except as set forth in paragraphs 6.3, 6.4, and 6.5, provided that such Make-Ready is required solely to accommodate Licensee. Licensee will not be required to pay any Make-Ready Costs required to repair pre-existing, non- grandfathered, safety violations of CITY or another attacher. 6.13 CITY Property Notwithstanding paragraphs 6.11 and 6.12, all Poles and materials installed in the Make-Ready process shall become and remain CITY’s sole 20 Pole Attachment License Agreement - ExteNet Systems, Inc. property, regardless of which entity procured or paid for it, with the exception of Licensee’s facilities and equipment. Licensee shall execute any documents reasonably requested by CITY to evidence the transfer of title to such Poles and materials to CITY, and Licensee shall brand and tag all new poles to indicate CITY ownership. Licensee’s performance of Make-Ready Work or payment of any Costs (A) shall in no way create or vest in Licens ee any ownership right, title, or interest in any Pole or electrical facilities, (B) shall not entitle Licensee to any offsets, credits, payments, or income from CITY’s operation of the Pole or facilities, (C) shall not alter or affect CITY's rights under this Agreement, including those under Article 13, or (D) shall not restrict CITY’s ability to allow access to a Pole by Third Party Users. Licensee’s interest shall at all times remain a bare revocable license that is subject to the terms of this Agreement. 6.14 Tree Trimming Licensee shall be responsible for all tree trimming necessary for the safe and reliable installation, use, and maintenance of its Attachments, and to avoid stress on Poles caused by contact between tree limbs and Licensee’s Attachments. All tree trimming shall be performed in accordance with the-then current CITY tree-trimming policies (to the extent not inconsistent with the terms and conditions of this Agreement), including without limitation those relating to owner notification and consent. 6.15 Anchors and Guying Licensee shall provide all anchors and guying necessary to accommodate the additional stress and load placed upon a Pole by its Attachments. Anchors and guys shall be in place and in effect prior to the installation of Attachments, cables, or any other facilities on a Pole. Licensee shall not attach to any CITY anchors or guying. Anchors shall not be placed outside of the easement in which a Pole stands. ARTICLE 7 INSTALLATION AND MAINTENANCE OF ATTACHMENTS 7.1 Installation Upon (A) completion of Make-Ready work, and (B) CITY’s receipt of full payment of all sums owing to CITY, if any, for engineering, Make-Ready, and other Costs in connection with the applicable Pole, Licensee may affix its Attachments to the Pole as set forth in the Attachment License and Design Documents. 7.2 Communication Space Except as otherwise provided herein, all Attachments and Contacts on a Pole must remain in the Communications Space. Licensee operations in the Supply Space or in the space separating the Communication and Supply Spaces are prohibited. The Communications Space includes the space reserved for each attachment on a given pole. Each Cable Attachment or space reserved in the Communications Space shall have a maximum size of twelve (12) inches. Each thru-bolt type Cable Attachment where the Pole is drilled and bolted to support cable and messenger or band used to support cable or messenger shall maintain a minimum of 12” vertical separation from adjacent bolts or bands. 21 Pole Attachment License Agreement - ExteNet Systems, Inc. 7.3 Maintenance Licensee shall, at its sole expense, make and maintain its Attachments in a safe condition and in good repair including maintain tree trimming and clearances, and in such a manner as to not interfere with or interrupt CITY’s lines, facilities, and services or with Third Party User attachments, facilities, and services. 7.4 No Damage Licensee shall not cause damage to CITY or Third Party User facilities or operations. If Licensee, its Contractors, agents, employees, or Attachments cause damage to CITY or Third Party User facilities or operations, Licensee assumes all responsibility for, and shall, as determined by CITY, either repair or promptly reimburse CITY or the Third Party User for all direct loss and expense caused by such damage. Licensee shall immediately inform CITY and all damaged Third Party Users of any damage to their facilities. 7.5 Sag and Mid-Span Clearances Licensee shall leave proper sag in its lines and cables and shall observe the established sag of power line conductors and other cables so that during the life of the Attachment minimum clearances are (A) achieved at Poles located on both sides of the span and (B) maintained throughout the span. A minimum clearance between surfaces must be maintained between Licensee’s and others’ Cables at mid-span and between Licensee’s and others’ Attachments and Pole Contacts on the Poles. Licensee will correct any clearance violations caused by its facilities or attachments. In no event will Licensee be responsible for clearance violations caused by any other party, including CITY. 7.6 Climbing Space An unobstructed climbing space must be maintained at all times on the face of all Poles as required by Electrical Code, as well as adequate ground access to Poles. All Attachments must be placed as to allow and maintain a clear and proper climbing space. Licensee shall place its Attachments on the same side of the Pole as the majority of existing Attachments, if any. Licensee is prohibited from Boxing on CITY poles. Notwithstanding the foregoing, in no event will Licensee be responsible for climbing space violations caused by any other party, including CITY. 7.7 Tagging Each Attachment shall be identified at all times by an identifying marker at each pole approved by CITY that, at minimum, (A) is permanent in duration and not degradable by rain or sunlight (B) has coloring and numbering or lettering unique to Licensee, and (C) is capable of being read unaided from the ground by a person with normal vision. ARTICLE 8 MODIFICATION OF ATTACHMENTS 8.1 No Unauthorized Modifications Except for routine modifications as provided in Section 8.2, Licensee shall not change the type, nature, or location of any Attachment or alter its use of a Pole without prior written CITY consent. Any such unauthorized modifications shall be deemed an Unauthorized Attachment and the remedial provisions in Article 10 (Unauthorized Attachments) shall apply. 22 Pole Attachment License Agreement - ExteNet Systems, Inc. 8.2 Routine Modifications Licensee does not need CITY consent for (A) changes incident to routine maintenance and repair; (B) installations of service drops; (C) removal of Licensee’s Attachments; or (D) upgrades of existing equipment that do not materially alter pole loading or pole space utilization. 8.3 CITY Mandated Modifications Within 30 calendar days of written request by CITY or within such other mutually agreed upon timeframe, Licensee shall move or rearrange its Attachments in order to maximize the usable available Pole space and/or to accommodate CITY facilities. Licensee shall do so at its sole cost and risk, except that Licensee shall not be responsible for any costs or expenses incurred to relocate or alter its Attachments to accommodate the Make-Ready work of other Third Party Users. If Licensee fails or refuses to comply with the directions of CITY to change, alter, improve, move, remove or rearrange any of its Attachments in accordance with this Agreement , CITY may then opt to change, alter, improve, move, remove or rearrange such Attachments without incurring any liability, except as provided in Article 16, to Licensee and at Licensee's sole cost and risk, or CITY may proceed under Article 13 of this Agreement. 8.4 Emergencies In case of an Emergency, including electrical service restorations, CITY may move, rearrange or transfer Licensee's Attachments, without notice and without liability to Licensee or to any other person, except as provided in Article 16. Licensee shall be responsible for all Costs and shall reimburse CITY for the costs CITY incurs relating to such work within forty-five (45) calendar days of the date CITY sends Licensee an invoice for such work. An “Emergency” is a condition that: (i) poses an immediate threat to the safety of utility workers or the public; (ii) materially and adversely interferes with the performance of CITY or another Third Party User’s service obligations; or (iii) poses an immediate threat to the integrity of CITY or another Third Party User’s Poles or equipment. As soon as practical thereafter, CITY shall notify Licensee of such events and actions. 8.5 Destroyed Poles If any Pole on which Licensee has an Attachment is substantially destroyed or damaged by fire, storm, accident, or otherwise, CITY shall be under no obligation to rebuild or replace such Pole, but may elect to terminate Licensee’s Attachment License for such Pole without any liability to Licensee. CITY shall notify Licensee in writing of a termination under this paragraph, and Licensee shall be entitled to a pro-rata refund of any prepaid but unearned Annual Usage Charge attributable to the Attachments on such damaged or destroyed Pole. Nothing herein shall prohibit Licensee from repairing or replacing such damaged or destroyed Poles at Licensee’s sole cost and expense if: (A) CITY elects not to repair or replace same, and (B) Licensee is permitted to do so under the City Code, the terms of Licensee’s franchise, if applicable, and any applicable easements. 8.6 Pole Transfers A. Licensee and CITY expressly agree that for the orderly management of public rights-of-way and aesthetic considerations, double poles shall be prohibited if a new Pole contains sufficient carrying capacity to support existing 23 Pole Attachment License Agreement - ExteNet Systems, Inc. Pole attachments. If CITY replaces an existing Pole supporting an Attachment with a new Pole, CITY will provide at least 30 days advance written notice to Licensee that Licensee must transfer its Attachment to the new Pole. If mutually agreed upon and if reasonably feasible, CITY will transfer the Attachment to the replacement Pole when CITY transfers its own lines and facilities. Licensee may also notify the CITY in writing within 15 days of the notice that it does not desire to occupy the new Pole. Failure of Licensee to timely respond to CITY’s notice shall be deemed an election to occupy the new Pole. If Licensee opts not to occupy the new Pole within 30 days, Licensee’s Attachment License to the new replaced Pole shall terminate as of the date of replacement and as liquidated damages to CITY for maintaining a double Pole, Licensee’s attachment fees for the existing pole shall be two times (2x) the Annual Usage Fee, starting 30 days after the date of replacement. Should the double Pole become damaged or rotten, the City shall not be responsible for its replacement and the Licensee will need to make other arrangements for their facilities. Licensee shall not be entitled to a refund of any Annual Usage Charge as a result. For each Attachment transferred by CITY, Licensee shall pay a transfer Fee as set forth in Exhibit A, unless the transfer is the result of a Third Party User attachment request, in which case the Third Party User will pay for Licensee’s transfer. B. All Poles, including any new Poles that may be required shall be installed in the same line of existing poles unless it is technically infeasible to do so safely. 8.7 Relocation Upon at least 60 days advance written notice, Licensee agrees that it will bear all actual and reasonable Costs associated with the relocation or re-routing of its Attachments in the event CITY facilities are removed from a Pole and re-routed. In such event, CITY shall be under no obligation to maintain any Poles that no longer support CITY lines and may remove Licensee’s Attachments when removing the abandoned Pole at Licensee’s sole Cost and risk, if Licensee fails to relocate its facilities in a timely manner. CITY will afford Licensee the opportunity to relocate underground, at Licensee’s expense, where reasonably practicable. City is not responsible for any negotiations for reimbursement for developer related relocations. ARTICLE 9 INVENTORY AND INSPECTIONS 9.1 Right to Inspect CITY may inspect Licensee’s work and Attachments at any time. CITY may conduct these inspections for any purpose relating to this Agreement, including without limitation: (A) determining compliance with the Design Documents or other design and installation requirements; or (B) determining compliance with Electrical Code. The making of an inspection by CITY shall not operate in any way to relieve Licensee or Licensee’s insurers of any responsibility, duty, obligation, or liability under this Agreement or otherwise, nor does CITY’s ability to make inspections relieve Licensee from its obligations to exercise due care in the operation and inspection of its Attachments. 24 Pole Attachment License Agreement - ExteNet Systems, Inc. 9.2 Compliance In the event any inspection of an existing Attachment reveals that corrections or other actions are required of Licensee under this Agreement, including without limitation those required for reasons of safety or structural integrity, Licensee shall make such corrections or take the requested actions within 30 days after the date CITY sends Licensee a written notice informing Licensee of the corrections to be made. If such corrections cannot be made within 30 days, the parties will agree on a mutually acceptable timeframe. CITY may also perform such work without notice, at Licensee’s sole Cost and risk, except as provided in Article 16, if CITY determines in its reasonable judgment and discretion that an Emergency does not permit full advance notice to Licensee. If Licensee fails or refuses to comply with the directions of CITY within the above described timeframe, the Attachment License(s) for the Attachments in question shall be terminated. In no event will Licensee be responsible for corrections of violations caused by another party, including CITY. CITY may opt to change, alter, improve, move, remove or rearrange such Attachments without incurring any liability to Licensee, except as provided in Article 16, and at Licensee's sole Cost and risk, or proceed under Article 13 of this Agreement. 9.3 System-wide Inventory Not more than once every 3 years, CITY may, but is under no obligation to, conduct a system-wide inventory of all Licensee Attachments and Third-Party User attachments on its Poles, for which Licensee shall bear its proportionate share of Costs with all other licensees and joint pole users. CITY will notify Licensee at least 90 days in advance of the times and places of such inventory, and Licensee may have representatives accompany CITY on the inventory. CITY may use the results of the inventory for purposes of calculating the Annual Usage Charge, but may also rely upon geographical grids or other mutually agreeable census to determine the correct count. ARTICLE 10 UNAUTHORIZED ATTACHMENTS 10.1 Unauthorized Attachments Licensee shall not place any Attachments on a Pole or other CITY infrastructure except as authorized by an Attachment License. If one or more Unauthorized Attachments are discovered, Licensee shall comply with this Article 10 or, if Licensee fails to comply, CITY may, but shall not be required to, remove the Unauthorized Attachment without incurring any liability to Licensee and at Licensee’s sole Cost, as described in this paragraph 10.1. With respect to any Unauthorized Attachment, CITY may opt to: A. Require that Licensee remove such Unauthorized Attachment upon written notice or, if Licensee fails to do so as described in part B of this paragraph 10.1, remove such Attachment at Licensee’s sole Cost and risk; or B. Require that Licensee pay all costs to correct any Code or other violation, all inspection and engineering costs to field-check necessary Poles, Unauthorized Attachment Fees, with interest, for each unauthorized Attachment (as established in Exhibit “A” Pole Attachment Charges), and submit an Application 25 Pole Attachment License Agreement - ExteNet Systems, Inc. for each such Unauthorized Attachment, together with the then-current Filing Fee and Annual Usage Charge for the current year. If such Penalty Fees, Application, and charges are not received by CITY within 30 days of notice of the Unauthorized Attachment, or such reasonable time under the circumstances, CITY may then opt to remove Licensee’s Unauthorized Attachments pursuant to Part A. of paragraph 10.1. CITY reserves the right to immediately remove any Unauthorized Attachments that, in the CITY’S sole opinion, poses an imminent danger to electrical utility operations or the public. 10.2 Remedies Cumulative The remedies afforded CITY under this Article 10 are in addition to any civil or criminal penalties provided by City Ordinance, as amended. 10.3 Ratification Must Be in Writing No act or failure to act by CITY with respect to an Unauthorized Attachment or any other unauthorized use of CITY Poles or property shall be considered to be a ratification, licensing, or permitting of the unauthorized use, irrespective of any otherwise applicable doctrine of waiver or laches. 10.4 Excessive Unauthorized Attachments Following the first audit after the Effective Date, if CITY determines that Licensee has made more than 30 Unauthorized Attachments cumulatively during any Contract Year, Licensee shall be considered to be in material breach of this Agreement and CITY will have the right to terminate this Agreement and require removal of Licensee’s Attachments in accordance with Article 13 of this Agreement. Licensee herein reserves the right to challenge any such termination and maintain its Attachments until such challenge is exhausted. ARTICLE 11 ACCESS TO CONDUIT AND DUCTS 11. 1 Scope CITY represents and warrants to Licensee that as of the Effective Date, CITY has not allowed any Third Party User to occupy CITY’s electrical Ducts and Conduits. Nothing herein shall be construed as to require CITY to provide Licensee with access to CITY’s electrical Ducts and Conduits. ARTICLE 12 CUSTOMER INTERACTION 12.1 Purpose Licensee acknowledges that the scope of its proposed project and the amount of Make-Ready construction and Attachment installation it intends to undertake under this Agreement will require Licensee to make extensive and repeated intrusions onto the private property of CITY customers in order to access Poles. The purpose of this Article is to establish minimum standards of conduct with respect to property owners and CITY customers. 12.2 Licensee Conduct Before engaging in electrical Make-Ready or installation work on the property of a CITY customer (except for connections or disconnections of customer’s service), Licensee shall, at minimum: 26 Pole Attachment License Agreement - ExteNet Systems, Inc. A. Provide CITY’s Utility Dispatch Center (855) 528-4278 with notice of the times, locations, and nature of the work to be performed; B. Require all field crews, and those of its Contractors, to carry and distribute upon request information packets explaining in detail the nature, extent, and purpose of the work being done and listing the telephone number and web site where additional information can be found; C. Establish and maintain a call-center telephone number during all hours during which field work is being done that is staffed by knowledgeable personnel who can answer and resolve customer questions and complaints concerning the work being done on their premises; D. Require all field crews to wear I.D. badges that identify themselves as employees or Contractors of Licensee; E. Have all vehicles used in field work bear logo of Licensee’s Contractors or Licensee; and F. Have readily available, during all hours in which field work is being done, one or more knowledgeable personnel who can communicate with and assist the City Manager’s Office and City Council members regarding property owner complaints, and also have available qualified personnel to conduct on-site resolution of property owner complaints. 12.3 No CITY Affiliation Licensee, and its employees, Contractors, and agents shall not at any time represent themselves to the public, any CITY customer, or any resident as being associated with, having the permission of, or having been requested by the City of College Station to be on private property. Licensee shall inform any such persons that it is allowed to work on CITY Poles by virtue of state and federal law, not by voluntary association with the City of College Station. 12.4 Service Interruptions If applicable, Licensee shall provide written notice to affected CITY customers of any planned electrical service interruptions by Licensee’s contractors that will affect them not less than 48 hours in advance of such interruption. Such notice shall contain the specific dates and times for such interruptions and the reasons therefor. ARTICLE 13 TERMINATION 13.1 Termination of Attachment Licenses Attachment Licenses for specific Attachments shall terminate upon any of the following events or conditions: 27 Pole Attachment License Agreement - ExteNet Systems, Inc. A. Licensee has not completed all necessary Make-Ready work and Attachment installation within the later of (i) 120 days of issuance of the Attachment License (or such longer period as the parties may agree in writing) or (ii) 60 days after completion of all electrical Make-Ready work, unless Licensee and CITY agree in writing for a longer period; B. Licensee removes the Attachment other than in the course of routine maintenance or replacement; C. Licensee ceases to offer services, or provides services unlawfully, through the Attachment; D. Licensee fails to comply with paragraphs 8.3, 8.7 or 9.2 of this Agreement, except as otherwise provided by those paragraphs. 13.2 Right of Suspension Except in the case of a bona fide, good faith dispute between the parties, if Licensee fails either to make any payment required under this Agreement, including timely payments to Licensee’s Contractors for Make-Ready Work, or to perform timely any material obligation under this Agreement, and such default continues for 30 days after the date the payment or performance is due if such cure can reasonably be completed within thirty (30) days, and if not, such cure has commenced and is being diligently and consistently pursued then, in addition to any other available right or remedy, CITY may, upon written notice to Licensee, immediately suspend all Attachment Licenses of Licensee hereunder until such time as the default is cured. The payment under protest of a disputed amount in order to avoid, or lift, suspension of Attachment Licenses shall not prejudice the rights of Licensee to continue the payment dispute. A suspension of Attachment Licenses under this paragraph shall not prevent Licensee from operating, maintaining, repairing or removing its existing Attachments, but Licensee shall not install any new or additional Attachments or make any changes to existing Attachments (except for removal or routine repair or maintenance necessary to continue to provide services to then-existing Licensee customers) during the period of suspension. 13.3 Termination of Agreement by CITY If Licensee fails either to pay any undisputed payment required under this Agreement, including timely payments to Contractors for Make-Ready Work, or timely perform any material obligation under this Agreement, and if such default has not been cured within three months of Licensee’s receipt of written notice of default, or if such cure cannot reasonably be completed in three (3) months, cure has commenced and has been continuously and diligently pursued, CITY may terminate this Agreement and all Attachment Licenses upon written notice to Licensee. Upon receipt of a notice of termination, Licensee shall promptly begin the process of removing all Attachments from specified Poles. All such Attachments shall be removed within 90 days after the date of the notice of termination, or within such time as CITY may agree. Until all of Licensee's Attachments are removed, Licensee shall continue to comply with all of the terms of this Agreement and perform all of its duties and obligations hereunder, including without limitation the obligation to pay Annual Usage Charges for its Attachments. Such payment by Licensee or acceptance by CITY of Annual 28 Pole Attachment License Agreement - ExteNet Systems, Inc. Usage Charges shall not act to cure the default that triggered the terminati on nor shall it reinstate this Agreement or Licensee's Attachment Licenses hereunder. 13.4 Failure to Remove Attachments If Licensee has not removed all its Attachments within the period of time specified in the preceding paragraph, or such additional period of time granted by CITY in writing, then CITY may remove Licensee's Attachments at Licensee's sole Cost and risk, in which event Licensee shall pay to CITY as liquidated damages, and not as a penalty, for the use and occupancy of CITY Poles a sum equal to five times (5x) the monthly Usage Rate for each Pole Contact for each month (or part thereof) until all such Attachments have been removed, in addition to the Annual Usage Fee. Alternatively, CITY may, in its reasonable discretion and upon written notice to Licensee, deem the Attachments to have been abandoned and assume ownership thereof. 13.5 Termination of Agreement by Licensee Licensee may terminate this Agreement upon 60 days written notice to CITY, in which event all Attachments shall be removed within 120 days after the date of the notice of termination or within such other time as CITY agrees. Until all of Licensee’s Pole Attachments are removed, Licensee shall continue to comply with all of the terms of this Agreement and perform all of its duties and obligations hereunder, including without limitation the obligation to pay Annual Usage Charges for its Attachments. Termination by Licensee during a Contract Year shall not relieve Licensee from payment for the full Annual Usage Charge for that Contract Year or any other sums that it owes CITY. 13.6 Survival Licensee’s obligations under this Article 13 shall survive termination of this Agreement. ARTICLE 14 ASSIGNMENTS 14.1 Written Consent Required 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 written consent of the CITY, which consent shall not be unreasonable withheld, delayed or conditioned. 14.2 Transfer of License Agreement Notwithstanding the provisions of Section 14.1, a transfer of this License Agreement may occur without CITY 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 College Station, Texas 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 CITY approval, the Licensee must provide the CITY Administrator 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. 29 Pole Attachment License Agreement - ExteNet Systems, Inc. 14.3 Leased Network Capacity CITY acknowledges that Licensee’s business plan any include 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 CITY’s consent, provided that Licensee has delegated none of its obligations under this License Agreement to the lessee of the Network Facilities, and CITY may continue to look solely to Licensee for performance hereunder. 14.4 Institutional Mortgagee or Lenders Licensee may also assign this License Agreement, without CITY's consent and without prior notice to CITY, to an institutional mortgagee or lender providing financing to Licensee with respect to Licensee's Attachments, DAS Network or Network Facilities in the event such institutional mortgagee or lender exercises its foreclosure right against Licensee and operates the Attachments, 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 CITY unless and until written notice of such assignment and exercise of rights is provided to CITY. 14.5 Assignment by CITY CITY may assign this Agreement in whole or in part without the consent of Licensee. CITY shall give Licensee written notice of the transaction within ten days after closing. ARTICLE 15 SURETY 15.1 Bond or Security Within 45 days of the Effective Date of this Agreement, Licensee shall provide a Bond or other financial security satisfactory in form and content in the amount of $4,000 for each 100 Poles for which Application is made to guarantee Licensee’s obligations under this Agreement, including, but not limited to, the faithful payment of all of Licensee’s obligations for rentals, fees, inspections, contracts, subcontracts, work, labor, equipment, supplies, materials, and the removal of Licensee's Attachments upon termination of this Agreement, or for any expense that may be incurred by CITY because of any default of Licensee. Licensee agrees to maintain the bond or other financial security in full force and effect during the entire term of this Agreement and until CITY is reimbursed for all Costs incurred as a result of removing Licensee's Attachments upon termination of this Agreement. The bond or other security shall be issued by a solvent company authorized to do business in the State of Texas, and shall meet any other requirements established by law or reasonably established by the CITY pursuant to applicable law. The amount of the bond or financial security does not operate as a limitation upon obligations of the Licensee under this Agreement. 30 Pole Attachment License Agreement - ExteNet Systems, Inc. ARTICLE 16 LIABILITY AND INDEMNITY 16.1 CITY Liability CITY reserves to itself the right to maintain and operate its Poles in such manner as will best enable it to fulfill its own service requirements. CITY shall not be liable for any damages incurred by Licensee for damage or interruption to its Attachments except for actual repair costs caused by the gross negligence or intentional misconduct of CITY; provided, however, that CITY shall not be liable to Licensee for material or financial loss resulting from any interruption of Licensee's service or for interference with the operation of Licensee's Attachments. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, ANY THIRD PARTY, OR ANY CUSTOMER OF THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THE USE OF OR DAMAGE TO, LICENSEE’S FACILITIES, OR THIS AGREEMENT. 16.2 No Warranties by CITY Licensee is expected to inspect the Poles on which its Attachments will be placed and shall rely solely on such inspection to determine the suitability of the Poles for its purposes. CITY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY EXPRESS OR IMPLIED WARRANTIES CONCERNING ANY POLE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACCEPTS THE USE OF ALL POLES AS IS-WHERE IS, AND WITH ALL FAULTS, EXCEPT AS OTHERWISE PROVIDED HEREIN. 16.3 Unsafe Poles Licensee acknowledges and agrees CITY does not warrant the condition or safety of CITY’s Poles, or the premises surrounding the Poles, and LICENSEE HEREBY ASSUMES ALL RISKS OF, AND INDEMNIFIES CITY FROM, ANY DAMAGE, INJURY OR LOSS OF ANY NATURE WHATSOEVER CAUSED BY LICENSEE’S, OR LICENSEE’S CONTRACTORS’ OR SUBCONTRACTORS’ USE OF THE POLES AND ASSOCIATED FACILITIES AND EQUIPMENT ON, WITHIN, OR SURROUNDING THE POLES. Licensee expressly agrees it will undertake responsibility for inspecting and evaluating the condition of any Pole before allowing any employees, whether those of Licensee or Licensee’s Contractors or Subcontractors, to climb or otherwise work on such Pole. If Licensee discovers any Poles that are rotten or otherwise unsafe for climbing or for Attachment installation, Licensee shall report any unsafe condition to CITY immediately. Licensee further acknowledges CITY does not warrant all poles are properly labeled, and agrees CITY is not liable for any injuries or damages caused by or in connection with missing labels or otherwise improperly labeled poles. Licensee further agrees to notify CITY immediately if labels or tags are missing or otherwise improper. 16.4 Dangerous Nature of the Work Licensee acknowledges in performing the work contemplated by this Agreement, Licensee and its agents, servants, employees, Contractors and Subcontractors will work near electrically energized lines, transformers, and other electrical equipment, and it is the intention the power flowing through such facilities will not be interrupted except by CITY. Licensee shall ensure its employees, 31 Pole Attachment License Agreement - ExteNet Systems, Inc. servants, agents, Contractors and Subcontractors have the necessary qualifications, skill, knowledge, training, and experience to protect themselves, their fellow employees, employees of CITY, and the general public, from harm or injury while performing work permitted by this Agreement. In addition, Licensee shall furnish its employees, and shall require its agents, Contractors and Subcontractors to furnish their employees, with competent supervision and sufficient and adequate personal protective equipment, tools and other equipment for their work to be performed in a safe manner. Licensee further warrants it is apprised of, conscious of, and understands the imminent dangers (INCLUDING SERIOUS BODILY INJURY OR DEATH FROM ELECTROCUTION OR FALLS) inherent in the work necessary to make installations on CITY's Poles by Licensee's employees, servants, agents, Contractors and Subcontractors, and accepts as its duty and sole responsibility to notify and inform Licensee's employees, and to require its agents, Contractors and Subcontractors to inform their employees of such dangers and to keep them informed regarding same. 16.5 Disclaimer of Liability CITY shall not at any time be required to pay from its own funds for injury or damage occurring to any person or property from any cause whatsoever arising out of Licensee's construction, reconstruction, maintenance, repair, use, operation, condition or dismantling of Licensee's system or Licensee's provision of service. 16.6 Indemnification Licensee shall, at its sole cost and expense, fully indemnify, defend and hold harmless CITY, its officers, employees, volunteers, agents, contractors, and subcontractors, (CITY and such other persons and entities being collectively referred to herein as "Indemnitees"), from and against: 16.6.1 Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees by reason of any act or omission of Licensee, its personnel, employees, agents, contractors, subcontractors or Affiliates, resulting in economic harm, personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, or any other right of any person, firm or corporation, which may arise out of or be in any way connected with the construction, reconstruction, installation, operation, maintenance or condition of Licensee’s Facilities or other property of Licensee or its Affiliates and any other facilities authorized by or Permitted under this Agreement (including those arising from any matter contained in or resulting from the transmission of programming over the Communications Facilities, but excluding any programming provided by the Indemnitees’ Communications Services or other services authorized by or Permitted under this Agreement); the release of hazardous substances, or; the failure to comply with any Federal, State or local statute, law, code, ordinance or regulation. 32 Pole Attachment License Agreement - ExteNet Systems, Inc. 16.6.2 Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and other consultants), which are imposed upon, incurred by or asserted against the Indemnitees by reason of any claim or lien arising out of work, labor, materials or supplies provided or supplied to Licensee, its contractors or subcontractors, for the installation, construction, reconstruction, operation or maintenance of Licensee’s Facilities (and any other facilities authorized by or Permitted under this Agreement or provision of Communications Services or other services authorized by or Permitted under this Agreement), and, upon the written request of CITY, Licensee shall cause such claim or lien covering CITY's property to be discharged or bonded within thirty (30) days following such request. 16.6.3 Any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees by reason of any financing or securities offering by Licensee or its Affiliates for violations of the common law or any laws, statutes, or regulations of the State of Texas or the United States, including those of the Federal Securities and Exchange Commission, whether by Licensee or otherwise. 16.6.4 Licensee’s obligations to indemnify Indemnitees under this Agreement shall not extend to claims, losses, and other matters covered hereunder that are caused or contributed to by the negligence of one or more indemnitees. In such case the obligation to indemnify shall be reduced in proportion to the negligence of the Indemnitees. By entering into this Agreement, CITY does not consent to suit, waive its governmental immunity or the limitations as to damages contained in the Texas Tort Claims Act. 16.6.5 This Section 16.6 Survives the termination of this License Agreement. 16.7 Assumption of Risk Licensee undertakes and assumes for its officers, agents, contractors and subcontractors and employees (collectively "Licensee" for the purpose of this Section), all risk of dangerous conditions, if any, on or about any CITY-owned or controlled property, the streets and public ways, and Licensee hereby agrees to indemnify and hold harmless the Indemnitees against and from any claim asserted or liability imposed upon the Indemnitees for personal injury or property damage to any person (other than from Indemnitees' gross negligence) arising out of Licensee’s installation, operation, 33 Pole Attachment License Agreement - ExteNet Systems, Inc. maintenance or condition of the Communication Facilities or other facilities or Licensee’s failure to comply with any Federal, State or local statute, law, code, ordinance or regulation. 16.8 Defense of Indemnitees In the event any action or proceeding shall be brought against the Indemnitees by reason of any matter for which the Indemnitees are indemnified hereunder, Licensee shall, upon notice from any of the Indemnitees, at Licensee's sole cost and expense, resist and defend the same with legal counsel selected by Licensee and consented to by CITY, such consent not to be unreasonably withheld; provided, however, that Licensee shall not admit liability in any such matter on behalf of the Indemnitees without their written consent and provided further that Indemnitees shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written consent of Licensee. 16.9 Notice, Cooperation and Expenses The Indemnitees shall give Licensee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Article 16. Nothing herein shall be deemed to prevent the Indemnitees at their own expense from cooperating with Licensee and participating in the defense of any litigation by their own counsel. 16.10 Other Indemnification Provisions No indemnification provision contained in this Article shall be construed in any way to limit any other indemnification provision contained in this Agreement. 16.11 Survival This Article 16 shall survive the termination of this License Agreement. ARTICLE 17 INSURANCE 17.1 Insurance Required During the term of this Agreement, and at all times thereafter when LICENSEE is occupying or using the licensed areas in any way, LICENSEE shall at all times carry insurance issued by companies duly licensed and authorized to provide insurance in the State of Texas rated at least A VIII under the A. M. Best rating system, and approved by CITY (which approval shall not be unreasonably withheld) to protect LICENSEE and the CITY from and against any and all claims, demands, actions, judgments, costs, expenses, or liabilities of every kind that may arise, directly or indirectly, from or by reason of losses, injuries, or damages descr ibed in this Agreement. The CITY reserves the right to review the insurance requirements and to reasonably adjust insurance and limits when the CITY determines that changes in statutory law, court decisions, or the claims history of the industry or the LICENSEE require adjustment of the coverage. 34 Pole Attachment License Agreement - ExteNet Systems, Inc. 17.2 Minimum Coverages At a minimum, Licensee shall carry and maintain the following policies and shall furnish the CITY Risk Manager Certificates of Insurance on the most current State of Texas Department of Insurance-approved certificate form as evidence thereof. A. Commercial General Liability coverage with minimum limits of liability of $2,000,000 per occurrence and $2,000,000 aggregate. The policy shall contain no exclusions without specific reference to same, and shall include coverage for products and completed operations liability; independent contractor’s liability; personal & advertising injury liability; and coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. B. Workers' Compensation coverage with statutory limits of liability as set forth in the Texas Workers' Compensation Act and Employer's Liability coverage, or its equivalent, of not less than $1,000,000 per accident, $1,000,000 per disease and $1,000,000 per disease per employee; C. Business Automobile Liability Insurance for any vehicles, owned vehicles, non-owned vehicles, scheduled vehicles and hired vehicles with a minimum combined single limit of liability of $2,000,000. D. Pollution liability insurance which provides coverage for sudden and accidental environmental contamination with minimum limits of liability of $5,000,000. E. Umbrella or Excess Liability insurance with minimum limits of $5,000,000 combined single limit per occurrence, and $5,000,000 aggregate. 17.3 CITY as Additional Insured All policies, except for Workers’ Compensation policies, or its equivalent, shall list the CITY and all associated, affiliated, allied and subsidiary entities of CITY, now existing or hereafter created, and their respective officers, employees, volunteers, agents, and contractors, as their respective interests may appear, as Additional Insureds (CITY and such other persons and entities being collectively referred to herein as “Additional Insureds”) and shall include cross- liability coverage. Should any of the policies be canceled before the expiration date thereof, written notice shall be given to the City’s Risk Manager in accordance with the policy provisions. The "other insurance" clause shall not apply to the CITY; it being the intention of the parties that the above policies covering Licensee and the Additional Insureds shall be considered primary coverage. Each policy shall contain a waiver of all rights of recovery or subrogation against CITY, its officers, agents, employees, volunteers and elected officials. 17.4 Occurrence Basis Policies All insurance policies other than those for workers’ compensation must be occurrence-based. Claims-made policies will not be accepted. 35 Pole Attachment License Agreement - ExteNet Systems, Inc. 17.5 Combining Policy Amounts The coverage amounts set forth in this section may be met by a combination of underlying (primary) and umbrella policies so long as in combination the limits equal or exceed those stated and the umbrella policy follows the form, or its terms and conditions are at least as broad as those of the primary policies. 17.6 Insurance Primary All policies of the Licensee shall be primary, and any policy of insurance or self-insurance purchased or held by the CITY now or in the future shall be non-contributory. The term “policy of insurance” as applied to the Additional Insureds shall include any self-insurance program, self-insured retention or deductible, or risk pool program or an indemnification, defense, or similar program purchased or maintained by CITY and Additional Insureds. 17.7 Contractors Licensee shall be fully liable for any Contractor or Subcontractor retained by Licensee to perform work or services for Licensee under this Agreement, as a condition of being granted access to Poles and City property. 17.8 No Right of Recovery Against City This Article creates no right of recovery of an insurer against the CITY. The required insurance policies shall protect the LICENSEE and the CITY. The insurance shall be primary coverage for losses covered by the policies. ARTICLE 18 MISCELLANEOUS PROVISIONS 18.1 Integration This Agreement constitutes the entire understanding of the parties relating to the use of Utility Poles hereunder; and there shall be no modification or waiver hereof except by writing, signed by the party asserted to be bound thereby. There are no oral representations or agreements between the parties. All previous agreements, correspondence, statements, and negotiations are superseded by this Agreement. 18.2 No Waiver The failure of either party to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and remain at all times in duly force and effect. 18.3 Applicable Law The parties hereto agree and intend that all disputes that may arise from, out of, under or respecting the terms and conditions of this Agreement, or concerning the rights or obligations of the parties hereunder, or respecting any performance or failure of performance by either party hereund er, shall be governed by the laws of the State of Texas, without application of its Conflict of Laws provisions. The parties further agree and intend that venue shall be proper and shall lie exclusively in state or federal court with jurisdiction in Brazos County, Texas, except where otherwise provided herein and except where the Texas Public Utilities Commission lawfully has jurisdiction. 36 Pole Attachment License Agreement - ExteNet Systems, Inc. 18.4 Severability If any term, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants and provisions of this Agreement shall remain in full force and effect. 18.5 Payments & Interest All monetary payments under this Agreement shall be due and payable within 45 days after receipt of invoice. All overdue balances shall accrue interest at the rate of 1% per month from the due date until paid, or the maximum rate allowed by law, whichever is less. 18.6 Amending Agreement Notwithstanding other provisions of this Agreement, the terms and conditions of this Agreement shall not be amended, changed, or altered except in writing signed by authorized representatives of both Parties. 18.7 Dispute Resolution This procedure shall govern any dispute resolution process between CITY and Licensee arising from or related to the subject matter of this Agreement that is not resolved by agreement between their respective personnel responsible for day-to-day administration and performance of this Agreement. Upon mutual agreement of the Parties, prior to the filing of any suit with respect to such a dispute, other than a suit seeking injunctive relief with respect to intellectual property rights, the Party believing itself aggrieved (“the Invoking Party”) will call for progressive management involvement in the dispute negotiation by giving written notice to the other Party. Such a notice will be without prejudice to the Invoking Party's right to any other remedy permitted by this Agreement. CITY and Licensee will use their best efforts to arrange personal meetings and telephone conferences as needed, at mutually convenient times and places, between their negotiators. If a resolution is not achieved by negotiators at the final management level within allotted reasonable amount of time, then either Party may within ten (10) business days thereafter request non-binding mediation to resolve the dispute. The mediation shall take place in a location mutually agreed to by the Parties. The allotted period for completion of the mediation shall be thirty (30) calendar days. Notwithstanding the foregoing, either Party may file an action in a court of competent jurisdiction within the State of Texas to resolve the dispute at any time unless otherwise agreed. 18.8 Receivership, Foreclosure, or Bankruptcy Licensee shall notify CITY not later than thirty (30) days of the filing of a receivership, reorganization, bankruptcy or other such action or proceeding by or against Licensee. The rights granted to Licensee hereunder, at the option of CITY shall cease and terminate one hundred twenty (120) days after the appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of Licensee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: 18.8.1 to the extent permitted by law, within one hundred twenty (120) days after their election or appointment, such receivers or trustees shall have complied fully with all the terms and provisions of this Agreement granted pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have remedied all defaults under the Agreement, if any; and 37 Pole Attachment License Agreement - ExteNet Systems, Inc. 18.8.2 to the extent permitted by law, within said one hundred twenty (120) days, such receivers or trustees shall execute an agreement duly approved by CITY having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of this Agreement. 18.8.3 In the case of foreclosure or other judicial sale of the plant, property and equipment of Licensee, or any part thereof, including or excluding this Agreement, CITY may serve notice of termination upon Licensee and the successful bidder at such sale, in which event the Agreement herein granted and all rights and privileges of the Agreement hereunder shall cease and terminate thirty (30) days after service of such notice, unless: 18.8.4 CITY shall have approved the transfer of this Agreement, as and in the manner in this Agreement provided; and 18.8.5 Unless such successful bidder shall have agreed with CITY to assume and be bound by all the terms and conditions to this Agreement. 18.9 Incorporation of Recitals and Appendices The Recitals stated above and all appendices, attachments, and exhibits to this Agreement are incorporated into and constitute part of this Agreement. 18.10 Contractors and Agents Bound Licensee shall be fully liable for any contractor or subcontractor retained by Licensee to perform work or services for Licensee under this Agreement, as a condition of being granted access to Poles and City property. 18.11 No Third Party Beneficiaries The terms and provisions of this Agreement are intended to be for the benefit of CITY and Licensee except as otherwise provided in this Agreement, and nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than the parties to this Agreement, any benefits, rights or remedies under or by reason of this Agreement. 18.12 Emergency Contact Each Party shall maintain a staffed 24-hour emergency telephone number where a Party can contact the other Party to report damage to the other Party’s Facilities or other situations requiring immediate communications between the Parties. Failure to maintain an emergency contact shall subject the Licensee to a charge equal to the actual costs incurred by CITY per incident and shall eliminate CITY’s liability to Licensee for any actions that CITY deems reasonably necessary given the specific circumstances. 38 Pole Attachment License Agreement - ExteNet Systems, Inc. 18.13 Notices When notice is required to be given under this Agreement by either party, it shall be in writing mailed or delivered to the other party at the following address or to such other address as either party may from time to time designate in writing for that purpose. All notices shall be effective upon receipt. City City of College Station Attn: Director of Electric Utilities P.O. Box 9960 1601 Graham Rd. College Station, TX 77842 Phone (979) 764-3439 With a copy to: City of College Station Attn: City Attorney P.O. Box 9960 College Station, TX 77842 Phone (979) 764-3507 Licensee ExteNet Systems, Inc. ATTN: CFO 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 Phone (630) 505-3800 With a copy to: ExteNet Systems, Inc. ATTN: General Counsel 3030 Warrenville Road, Suite 340 Lisle, IL 60532 Phone (630) 505-3800 [Remainder of page intentionally blank, signature page to follow] 39 Pole Attachment License Agreement - ExteNet Systems, Inc. IN WITNESS WHEREOF, the undersigned have executed this Agreement at College Station, Brazos County, Texas through their duly authorized representatives. AGREED: EXTENET SYSTEMS, INC. CITY OF COLLEGE STATION By: By: Printed Name: Mayor Title: Date:________________ Date: ATTEST: City Secretary Date:_____________ APPROVED: City Attorney Date:_____________ 40 Pole Attachment License Agreement - ExteNet Systems, Inc. LIST OF EXHIBITS Exhibit A – Pole Attachment Charges Exhibit B – Construction Guidelines (Pole Attachment Specifications) Exhibit C – Licensee’s Certificates of Insurance 41 Pole Attachment License Agreement - ExteNet Systems, Inc. EXHIBIT A POLE ATTACHMENT CHARGES In order to ensure prompt processing of applications, Licensee must submit all required information with each application in accordance with terms and conditions of the Infrastructure Usage Agreement and applicable departmental procedures. Licensee will be subject to the following rates for billable services. Rates may be adjusted by City of College Station (COCS) once per year for the term of the contract. RATES FOR BILLABLE SERVICES TYPE OF FEE BASE RATE OVERTIME CHARGE HOLIDAY CHARGE ADDITIONAL INFORMATION Filing Fee $30/pole N/A N/A Filing fees are charged for each application. The scope of an application shall not exceed 200 poles. Make Ready Assessment/Report Actual costs of COCS and subcontractors include G&A and OH Actual costs of COCS and sub- contractors include G&A and OH, and overtime premium Actual costs of COCS and sub- contractors include G&A and OH, and overtime premium COCS may provide labor and hire such subcontractors as necessary to complete make ready assessments and reports. COCS Support Personnel and Engineers $35.00-$66.00/HR $58.90- $168.30/HR $70.45- $201.30/HR The charge for COCS personnel is the billable hourly rate, with premiums for over-time and holiday charges. Paper Maps of Pole Locations $8.00 Each Maps are a maximum size of 24” by 36” and will show the landbase and pole locations only. Transfer Fee Direct Costs + overhead & general/administrative costs; $100 minimum charge for each category Direct Costs + overhead & general/ administrative costs; $100 minimum charge for each category Direct Costs + overhead & general/ administrative costs; $100 minimum charge for each category Pole Change Out Fee Direct Costs + overhead & general/administrative costs; $100 minimum charge for each category Direct Costs + overhead & general/ administrative costs; $100 minimum charge for each category Direct Costs + overhead & general/ administrative costs; $100 minimum charge for each category Construction Assistance Fee Direct Costs + overhead & general/administrative costs; $100 minimum charge for each category Direct Costs + overhead & general/ administrative costs; $100 minimum charge for each category Direct Costs + overhead & general/ administrative costs; $100 minimum charge for each category Pole Loading Analysis Fee $75-$225 per pole N/A N/A Unauthorized Attachment Fee 5 times the current annual pole attachment fee N/A N/A Mileage associated with COCS personnel support Mileage will be billed at the current Internal Revenue Service allowable rate In the event of conflict between this Exhibit and the then-current City Ordinance regulating Attachment Fees, the City Ordinance Controls. 42 Pole Attachment License Agreement - ExteNet Systems, Inc. EXHIBIT B CONSTRUCTION GUIDELINES College Station Utilities Pole Attachment Specification Page-11 Approved January 2015College Station Utilities POLE ATTACHMENTS ATTACHMENT OF DAS ANTENNA OR EQUIPMENT ON POLES 01/08/2015NTS PAGE 11 College Station Utilities Pole Attachment Specification Page-12 Approved January 2015College Station Utilities POLE ATTACHMENTS LICENSEE METHODS TO ATTACH TO POLES NTS 01/08/2015 College Station Utilities Pole Attachment Specification Page-14 Approved June 2014College Station Utilities POLE ATTACHMENTS SPEC NAME NTS 06/24/2014 Communication Facilities Location and Tagging To facilitate identification of attachments to COCS poles, the following standards apply to all Licensees. These requirements will also assist in contacting the attached party as needed. ORDER OF ATTACHMENT ON POLE: The following is the hierarchy for installing facilities on poles. List is from top of pole down: x Electric Utility Infrastructure x City of College Station fiber x Licensee (3) fiber x Licensee (2) fiber x Licensee (1) fiber x Verizon lines and fiber If a new Licensee applies to contact a pole, they will be responsible for the cost of moving or lowering the facilities as required to maintain this hierarchy. Changing of position from pole to pole will not be allowed. TAGGING: A tag must be installed which includes the following information: 1.Company name or generally recognizable company logo 2.Emergency telephone number Tagging requirements: 1.Locations: a.The starting and dead-end poles of all attached facilities b.The beginning of all lateral taps c.All overhead to underground transitions d.All roadway crossings e.Equipment or antenna facilities Tags should be installed on a minimum of every fourth pole. 2.Tagging must take place upon installation of facilities. 3.Companies are required to tag their facilities as an ongoing practice in order to meet these requirements. 4.Tag must be replaced when the company name and/or contact number are no longer legible from the ground. 5.Missing tags must be replaced as soon as possible. The attaching company may choose the method, color, material, construction, and dimensions of the tag as long as the following requirements are met: a.Tags to remain permanently affixed to the attaching company's facilities. b.Color and text must be designed to last at least 5 years. c.7KHFRPSDQ\QDPHDQGFRQWDFWQXPEHUPXVWEHHDVLO\UHDGDEOHDQGYLVLEOHIURPWKHJURXQG$PLQLPXPRIòLQFKKLJKOHWWHULQJLVUHTXLUHG d.Avoid the use of sharp edges and corners if constructed of metal. e.Tags should be consistent in appearance for a given company throughout COCS's service territory. NOTES: 1.Attachment of telephone and other communication facilities shall be same side of the pole. 2.1RPHWDOFDELQHWODUJHUWKDQ´[´[´GHHSVKDOOEH mounted directly on the pole. Larger cabinets may be pole mounted as shown in the side views on this sheet provided mounting brackets are used which provide a PLQLPXPRI´DQGDPD[LPXPRI´EHWZHHQWKH cabinet and the pole. Only one box shall be allowed. Largest dimensions for box per pole, allowed is ´ZLGH´WDOODQG´GHHS 3.Licensee supply cable shall be in conduit or have an effectively grounded metal sheath or shield. 4.Service shall be furnished by customer. 5.Messenger and metal case of power supply shall be connected to pole ground with #6 SD bare copper bonding wire. 6.Customer's leads shall extend out of weatherhead sufficient for making connections on secondary bus or transformer. 7.Self contained meter socket furnished by communication company. 8.Mount the meter socket so the meter can be read easily from the ground. Meter should not face street, alley, or property side of pole. 9.Recommended position for attachment of communication cable (either self-supporting or supported messenger). 10.Pole must be stabilized 11.If addition equipment or boxes are required, they must be pad mounted at least 3 feet from base of pole. 12.Antenna shall be mounted in the communication space or below and shall not interfere with access to other licensees facilities. 13.Equipment shall not be installed on poles already having other licensees equipment or boxes. 14.Equipment shall not be installed on poles containing electric risers, airbreak switches, capacitor, reclosers or regulators. Secondary Circuits or Transformer Weather Head Open Drip Loop Licensee Equipment (See Notes 2 & 5) See Notes 1, 5 & 9 Service to Power Supply (See Notes 2, 3, 4, 5 & 6) See Note 2 Meter (See Notes 7 & 8) Customer's Service Switch Customer's Grounding Electrode Clearance to Ground as Per NESC4'-0" Min.6'-0" Max.Clearance to Ground as Per NESC or TxDoT12"Min.24" Max.24" Min.12"Min.40"12" Min.52" Min.Supply and Communication Equipment College Station Utilities Pole Attachment Specification Page-15 Approved February 2014College Station Utilities POLE ATTACHMENTS SUPPLY AND COMMUNICATION EQUIPMENT PAGE 15 02/11/2015 Antenna 1.CONDUIT SHALL MATCH COLOR OF STREET LIGHT POLE. 2.CONDUIT SHALL BE STRAPPED TO STREET LIGHT POLE, STRAPS SHALL BE PLACED A MAXIMUM OF 3' APART. STRAPS SHALL MATCH COLOR OF STREET LIGHT POLE. 3.ALL EQUIPMENT, EXCEPT ANTENNA, INCLUDING METER FOR ELECTRICAL SERVICE, SHALL BE PAD MOUNTED. 4.CONDUIT AND STRAPS SHALL BE LOCATED WHERE THEY DO NOT INTERFERE WITH THE STREET LIGHT CONDUCTOR ACCESS PANEL. 5.INSTALL ON ANCHOR BASED METAL STREET LIGHT POLES ONLY. 6.POLE LOADING CALCULATION SHALL BE REQUIRED BASED ON ACTUAL ANTENNA SPECIFICATIONS. COMMUNICATION EQUIPMENT MOUNTED ON ANCHOR BASED METAL STREET LIGHT POLE 18" MIN FROM STREET LIGHT ARM Note 1 & 2 Note 4CLEARANCE TO GROUND AS PER NESCCollege Station Utilities Pole Attachment Specification Page-16 Approved June 2014College Station Utilities POLE ATTACHMENTS SPEC NAME PAGE 16 02/02/2015 ANTENNA 43 Pole Attachment License Agreement - ExteNet Systems, Inc. EXHIBIT C LICENSEE’S CERTIFICATES OF INSURANCE City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0253 Name:3590 Greens Prairie Road West Rezoning Status:Type:Rezoning Agenda Ready File created:In control:5/13/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Public hearing, presentation, possible action, and discussion regarding an ordinance amending Chapter 12, "Unified Development Ordinance," Section 12-4.2, "Official Zoning Map," of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundaries from E Estate to RS Restricted Suburban for approximately 63 acres being specifically Robert Stevenson League, Abstract Number 54, College Station, Brazos County, Texas, said tract being the remainder of a called 101.322 acre tract of land as described by a surface exchange deed to Esther Jane Grant McDougal recorded in Volume 4027, Page 29 of the Official Public Records of Brazos County, Texas, generally located at 3590 Greens Prairie Road West, more generally located north of Greens Prairie Road West and west of the Castlegate II Subdivision. Case #15-00900069 (J Bullock) Sponsors: Indexes: Code sections: Attachments:Background Information Aerial & Small Area Map (SAM) Ordinance Action ByDate Action ResultVer. Public hearing, presentation, possible action, and discussion regarding an ordinance amending Chapter 12, "Unified Development Ordinance," Section 12-4.2, "Official Zoning Map," of the Code of Ordinances of the City of College Station, Texas by changing the zoning district boundaries from E Estate to RS Restricted Suburban for approximately 63 acres being specifically Robert Stevenson League, Abstract Number 54, College Station, Brazos County, Texas, said tract being the remainder of a called 101.322 acre tract of land as described by a surface exchange deed to Esther Jane Grant McDougal recorded in Volume 4027, Page 29 of the Official Public Records of Brazos County, Texas, generally located at 3590 Greens Prairie Road West, more generally located north of Greens Prairie Road West and west of the Castlegate II Subdivision. Case #15-00900069 (J Bullock) Relationship to Strategic Goals:Good Governance,Diverse & Growing Economy,and Neighborhood Integrity Recommendation(s):The Planning and Zoning Commission considered this item at their May 7, 2015 meeting and voted 5-0 to recommend approval of the rezoning. Staff also recommends approval. Summary:This request is to rezone the subject property from E Estate to RS Restricted Suburban. The Unified Development Ordinance provides the following review criteria for zoning map amendments: College Station, TX Printed on 5/22/2015Page 1 of 3 powered by Legistar™ File #:15-0253,Version:1 REVIEW CRITERIA 1. Consistency with the Comprehensive Plan: The rezoning request is consistent with the Comprehensive Plan. The subject property is shown to be within Growth Area IV on the Comprehensive Plan's Concept Map and its Future Land Use and Character designation is shown as Restricted Suburban. As such, the area was planned for less intense suburban activities with larger minimum lot sizes. According to the Plan, more intense uses could be allowed if part of a planned development that would mitigate negative impacts, but the rezoning request solely for RS Restricted Suburban meets the intent of the Plan. The zoning district requires a minimum residential lot size that exceeds the minimum allowed in GS General Suburban, with an average lot size that is twice that required in GS General Suburban. At the time of platting, a developer may also choose to cluster residential lots to create greater shared open spaces, which would further the goals for Growth Area IV. 2. Compatibility with the present zoning and conforming uses of nearby property and with the character of the neighborhood:The rezoning request to RS Restricted Suburban is compatible with the existing zoning and character of the surrounding properties. To the east is the Castlegate II Subdivision zoned for general suburban lots and to the south is the Sweetwater Forest Subdivision which is zoned for estate lots. The character of the remaining area is rural in nature. 3. Suitability of the property affected by the amendment for uses permitted by the district that would be made applicable by the proposed amendment: The applicant is looking to develop single residential lots in compliance with the RS Restricted Suburban zoning district. The proposed rezoning is appropriate for this area given the character of the surrounding properties and compliance with the Comprehensive Plan. The property would be allowed to subdivide into lots with an average 10,000 square feet lot area per dwelling unit with 6,500 square feet as the minimum. The applicant states the property is suitable for development of RS Restricted Suburban given its topography and proximity to Castlegate II. 4. Suitability of the property affected by the amendment for uses permitted by the district applicable to the property at the time of the proposed amendment: The current designation of E Estate allows the property to be subdivided into acreage lots. The property is suitable for large lot development, but such a development pattern would not take full advantage of the infrastructure planned for a higher-density in this growth area. The proposed rezoning would allow for the property to be subdivided into relatively smaller single-family lots than E Estate, and is aligned with the vision of the Comprehensive Plan. 5. Marketability of the property affected by the amendment for uses permitted by the district applicable to the property at the time of the proposed amendment: The applicant states the property is marketable for estate but that is not the largest demand for housing stock at the present time. RS Restricted Suburban will provide transition between the Castegate II Subdivision and the Wellborn Community. 6. Availability of water, wastewater, stormwater, and transportation facilities generally suitable and adequate for the proposed use:Water service will be provided by City of College Station via existing 12-inch main from the Castlegate II Subdivision. There is an 8-inch sanitary sewer line available from the Castlegate II Subdivision. The majority portion of the tract is in the Spring Creek sanitary sewer impact fee area. The majority of the property is in the Spring Creek College Station, TX Printed on 5/22/2015Page 2 of 3 powered by Legistar™ File #:15-0253,Version:1 drainage basin while the remaining portion is in the Peach Creek drainage basin. The natural conveyance path drains towards Peach Creek South Tributary. A two-lane Major Collector, Victoria Avenue, is shown on the thoroughfare plan crossing this tract. Access will be via Victoria Avenue & Greens Prairie Road west. Future Victoria Avenue will connect to Greens Prairie Road West, and will require intersection improvements with this development. Drainage and other public infrastructure required with the site shall be designed and constructed in accordance with the B/CS Unified Design Guidelines. Existing infrastructure appears to currently have capacity to adequately serve the proposed use. Budget & Financial Summary:N/A Attachments: 1. Background Information 2. Aerial & Small Area Map (SAM) 3. Ordinance College Station, TX Printed on 5/22/2015Page 3 of 3 powered by Legistar™ BACKGROUND INFORMATION NOTIFICATIONS Advertised Commission Hearing Date: May 7, 2015 Advertised Council Hearing Date: May 28, 2015 The following neighborhood organizations that are registered with the City of College Station’s Neighborhood Services have received a courtesy letter of notification of this public hearing:  Castlegate II Subdivision  Wellborn Oaks Property owner notices mailed: 30 Contacts in support: Four Contacts in opposition: Three Inquiry contacts: Ten ADJACENT LAND USES Direction Comprehensive Plan Zoning Land Use North Restricted Suburban R Rural Vacant, Residential South Estate E Estate Sweetwater Forest Subdivision East Restricted Suburban GS General Suburban Castlegate II Subdivision West Wellborn Estate R Rural Residential DEVELOPMENT HISTORY Annexation: June 1995 Zoning: A-O Agricultural Open upon annexation (1995) A-OR Rural Residential (2000) Renamed to Estate (2013) Final Plat: Unplatted Site development: Undeveloped ORDINANCE NO. _____ AN ORDINANCE AMENDING CHAPTER 12, “UNIFIED DEVELOPMENT ORDINANCE,” SECTION 12-4.2, “OFFICIAL ZONING MAP,” OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY CHANGING THE ZONING DISTRICT BOUNDARIES FROM E ESTATE TO RS RESTRICTED SUBURBAN FOR APPROXIMATELY 63 ACRES BEING SPECIFICALLY ROBERT STEVENSON LEAGUE, ABSTRACT NUMBER 54, COLLEGE STATION, BRAZOS COUNTY, TEXAS, SAID TRACT BEING THE REMAINDER OF A CALLED 101.322 ACRE TRACT OF LAND AS DESCRIBED BY A SURFACE EXCHANGE DEED TO ESTHER JANE GRANT MCDOUGAL RECORDED IN VOLUME 4027, PAGE 29 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS, GENERALLY LOCATED AT 3590 GREENS PRAIRIE ROAD WEST, MORE GENERALLY LOCATED NORTH OF GREENS PRAIRIE ROAD WEST AND WEST OF THE CASTLEGATE II SUBDIVISION; PROVIDING A SEVERABILITY CLAUSE; DECLARING A PENALTY; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That Chapter 12, “Unified Development Ordinance,” Section 12-4.2, “Official Zoning Map,” of the Code of Ordinances of the City of College Station, Texas, be amended as set out in Exhibit “A” and as shown graphically in Exhibit “B”, attached hereto and made a part of this ordinance for all purposes. PART 2: That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. PART 3: That any person, firm, or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty-five Dollars ($25.00) nor more than Two Thousand Dollars ($2,000.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 35 of the Charter of the City of College Station. PASSED, ADOPTED and APPROVED this 28th day of May, 2015 ATTEST: APPROVED: ____________________________________ _______________________________ City Secretary MAYOR APPROVED: _______________________________ City Attorney ORDINANCE NO.__________________ Page 2 EXHIBIT “A” That Chapter 12, “Unified Development Ordinance,” Section 12-4.2, “Official Zoning Map,” of the Code of Ordinances of the City of College Station, Texas, is hereby amended as follows: The following properties are described by the legal description are rezoned from E Estate to RS Restricted Suburban: ORDINANCE NO.__________________ Page 3 ORDINANCE NO.__________________ Page 4 ORDINANCE NO.__________________ Page 5 EXHIBIT “B” City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0254 Name:Non-Residential Architectural Standards UDO Amendment Status:Type:Ordinance Agenda Ready File created:In control:5/14/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Public hearing, presentation, possible action, and discussion regarding an ordinance amending Chapter 12, "Unified Development Ordinance," Article 2, “Development Review Bodies,” and Article 7, “General Development Standards,” of the Code of Ordinances of the City of College Station, Texas by revising the Non-Residential Architectural Standards and related standards and processes. Sponsors:Jason Schubert Indexes: Code sections: Attachments:Summary of Changes Legistar NRA Revisions 5-28-15.pdf Legistar NRA Revisions 5-28-15.pdf Action ByDate Action ResultVer. Public hearing, presentation, possible action, and discussion regarding an ordinance amending Chapter 12, "Unified Development Ordinance," Article 2, "Development Review Bodies," and Article 7, "General Development Standards," of the Code of Ordinances of the City of College Station, Texas by revising the Non-Residential Architectural Standards and related standards and processes. Relationship to Strategic Goals:Good Governance,Diverse Growing Economy, and Neighborhood Integrity Recommendations: The Bicycle, Pedestrian & Greenways Advisory Board considered the portion of the amendment related to bicycle and pedestrian standards at their May 4, 2015 meeting. The Board recommended approval (6-0) with the condition that a reference be provided to Alternative Parking Plans and the pedestrian plaza requirement be retained for sites or building plots in excess of 10 acres, while removing the allowance for seating in the parking landscape areas to qualify as one of the three minimum plaza elements. The Planning & Zoning Commission considered this item at their May 7, 2015 meeting and recommended approval (5-0) with the changes recommended by the Bicycle, Pedestrian & Greenways Advisory Board. The recommended changes have been incorporated into the proposed ordinance. Summary: The Non-Residential Architecture (NRA) Standards were initially implemented in 2003 with the adoption of the Unified Development Ordinance (UDO) and then expanded to their current scope in 2004. They were originally created as an economic development effort and some revisions to the College Station, TX Printed on 5/22/2015Page 1 of 3 powered by Legistar™ File #:15-0254,Version:1 standards have occurred over the years. Potential UDO amendments were identified in the Planning & Development Services Organization Review performed by Marsh Darcy Partners in 2013. One of the items was revisions to the NRA standards which the report summarized the concerns as follows: "The business community's concerns regarding the NRA and landscaping standards are that they are too complex, difficult to understand, and apply in too many circumstances. The City Council and business community do value the higher standards expected in College Station. The business community wonders if there is a simpler way to get to the same result. "Primary NRA concerns noted during the interview processes include: · Smaller buildings should be exempted. · Buildings not visible from public streets should be exempted. · The architectural elements requirements result in regimented, uncreative designs, summed up by the comment "Does hanging things on your building make it more architecturally interesting?" · There are no provisions for leeway to allow for unique situations. · Concerns over the color palette remain. · Gaining DRB approval for basic plans or waivers is too time consuming; during the feasibility phase of a project, applicants cannot afford the time or cost required for that process, especially if multiple trips to the DRB are required for final approval." The Planning & Zoning Commission Plan of Work also calls for a review of the existing NRA standards to evaluate if updates were needed to reflect current practices and allow more flexibility in design. This ordinance amendment seeks to overhaul the standards to simplify and realign them to reflect the direction received during the amendment process and to address issues identified over the years through application of the standards. Process Staff presented an overview of the existing standards and received initial feedback regarding the appropriate scope and process to utilize at two Planning & Zoning Commission workshops held in the summer of 2014. The Commission provided direction to hold a series of stakeholder meetings to receive input, that having architecture-related standards was of importance, and that the existing standards were not to be thrown out and replaced by a new ordinance framework. A major overhaul of the standards was to occur which would also include adjustments to known issues. The Planning & Zoning Commission hosted a series of stakeholder meetings at an October 2014 workshop meeting to receive input from architects, business interests, and other design professionals regarding potential changes. Staff provided an initial list of items to consider for revision as a starting point. Staff also hosted a lunch meeting with the local chapter of the American Institute of Architects (AIA) in November 2014 to seek further input. The AIA chapter provided a written summary of their input at the meeting and responses to the initial list of potential revisions created by staff. The initial amendment draft was distributed via email to a development community contact list, to the AIA chapter for distribution to their membership, and placed on the Planning & Development Services webpage for a two-week public comment period. Staff received responses from a handful of individuals, including a written response the AIA chapter, and has incorporated some of the comments into the final draft. Budget & Financial Summary:N/A College Station, TX Printed on 5/22/2015Page 2 of 3 powered by Legistar™ File #:15-0254,Version:1 Attachments: 1. Summary of Changes 2. Ordinance College Station, TX Printed on 5/22/2015Page 3 of 3 powered by Legistar™ Summary of the Changes to the Non-Residential Architectural (NRA) Standards The proposed ordinance addresses a variety of items such as changing how the standards apply to different types of buildings, simplifies the manner in which the standards are written and organized, and provides additional design options, flexibility and opportunities to seek relief. The overall purpose of the amendment can be summarized as follows:  Changes the standards to provide emphasis on more prominent areas and image corridors of the City while reducing or eliminating requirements in areas that are not as prominent.  Reduces the complexity of the ordinance by moving non-architecture standards out of the architecture section and into the applicable parking, landscaping, and development standards sections. This also allows architectural reviews to be done independent of site plans and thus allowing greater flexibility in the design process of developing a project.  Increases the flexibility of the types and percentages of architectural features, materials and colors that can be used.  Modifies the applicability of some requirements to apply to specific circumstances and not be a one size fits all approach.  Creates an alternative compliance review path to the prescriptive ordinance requirements by authorizing the Design Review Board to consider architectural designs that are innovative or address other unique circumstances. Description of Specific Changes Purpose  Create a purpose statement for the NRA section. Applicability  Adds an exemption that unenclosed, freestanding structures such as pavilions, canopies, and ATM machines are not required to meet the standards, except for complying with building colors requirements. Standards for Non-Residential Structures Façade Terms  Creates the term ‘primary façade’ for use in applying the various sections. Primary façades are considered to be the primary entrance façades of all primary buildings and all façades facing a public right-of-way, private right-of-way, or public way.  Limits the definition of ‘facing a public right-of-way’ to no longer include when a façade is facing other forms of passageways such as sidewalks and bike paths.  Limits the application of when a façade is considered “visible” from a public right-of-way or public way to not apply to side or rear building façades that are more than 400 feet away.  Removes the requirement that all pad site façades are considered facing a public right-of-way. Required Mechanical Equipment Screening  Adds an exemption that electrical panel boxes attached to the side of the building do not need additional screening if they are painted to match the color of the building.  Adds that mechanical equipment is also to be screened from a public way, in addition to the existing requirement to screen from a public right-of-way and residential property. Building Mass and Design Horizontal Façade Articulation  Changes the requirement for façade articulation (wall plane projections or recessions of at least 4 feet so no more than 33% of the façade is on the same continuous geometric plane) to apply only to primary façades that exceed 200 feet in horizontal length. The current standard requires all façades in building plots that are greater than 50,000 gross square feet that are facing a public right-of-way to meet this requirement, with restaurant pad sites exempt.  Changes the requirement for façade articulation in SC Suburban Commercial districts for buildings over 8,000 square feet to apply to primary façades, instead of façades facing a public right-of-way. The section for articulation is reduced from every 45 feet to every 50 feet. Building Entry Design  Creates a standard that requires public building entrances to have a protected entry feature. Architectural Relief  Consolidates the different section types of 2 elements for every 45-foot section facing a public right-of-way and 2 elements for every 60-foot section of all other façades to be 1 element for every 25 feet of façade length.  Reduces the applicability of architectural relief elements to only be required for primary façades and façades facing or visible from a public right-of-way or public way. The current standard requires elements on all façades so this would eliminate the requirement for architectural relief on façades not visible from a public right-of-way or public way, except for primary entrance façade which would still require the elements.  Eliminates requirement for architectural relief on parts a façade that are screened by another building that is within 15 feet of it.  Eliminates the requirement that elements need to be placed on every 45-foot or 60-foot section of building by allowing elements to be group or spaced anywhere along a façade so long as not more than 75 feet is void of a relief element.  Requires that elements have a functional architectural purpose. This would not allow elements to be placed on a building solely to meet the requirement without being functional (like awnings not being allowed on a wall without an opening).  Expands the exemption for accessory buildings that do not require architectural relief to include buildings with a perimeter less than 100 feet. Currently the exemption is only for buildings in which every façade length is 25 feet or less. These accessory buildings are to use the same material and colors as the primary building.  Specifies that no more than half of the required elements on a façade may consist of the same type of element.  Provides allowance for existing buildings to add architectural relief elements up to 50% of required elements prior to needing to bring that façade into compliance.  Adds that roofline articulation and cornices to the list of qualifying architectural elements a may count as one element on a facade if they are not already required to be placed on the façade.  Specifies that to qualify as an element, overhangs associated with windows must be at least an 18 inch of an overhang.  Specifies that to qualify as an element, pilasters are to project at least 4 inches from a wall. Roof and Roofline Design  Changes the requirement for vertical articulation of flat roofs and parapets to apply only to primary entrance façades and façades facing a public right-of-way that is classified as a minor arterial or greater on the Thoroughfare Plan. The current requirement is for all façades facing public right-of-way so it eliminates the requirement for façades facing a public rights-of-way less than a minor arterial, while keeping or adding the requirement for all primary entrance façades.  Adds that parapet roof lines subject to the vertical articulation stated above are to have a well- defined cornice or architectural termination to cap the building along the roofline. Building Materials  Minimum brick/stone percentage requirement: o Changes the minimum percentage requirement for brick, stone, marble, granite, or concrete products that simulate these to less percentage categories of:  Minimum of 10% on all façades visible from a public right-of-way or public way;  Minimum of 20% on all façades facing a major collector and for primary entrance façades that exceed 200 feet in length; and  Minimum of 30% on all façades facing a minor arterial classification or higher. o The minimums would become based primarily upon the type of street a façade is facing instead of the current standard that increases based upon the gross square feet in the building plot. The existing minimum brick/stone percentages are:  Minimum of 10% on all façades visible from a public right-of-way;  Minimum of 25% on all façades facing a public right-of-way for buildings in a building plot of 20,000 gross square feet more;  Minimum of 50% on all façades facing a public right-of-way for buildings in a building plot of 150,000 gross square feet or more; and  0% on façades in a building plot less than 5,000 gross square feet. o Expands the minimum brick/stone requirement to apply to the entire façade not just the first 2 stories or 28 feet. o The proposed changes result in that all facades visible from a public right-of-way have a minimum brick/stone material and eliminating the exemption for small building plots.  Maximum percentage material requirements: o Consolidates the maximum material percentages from 5 categories (10%, 20%, 30%, 75%, and 80% maximums) to 3 categories (10%, 30%, and 75% maximums). o Increases the allowable metal percentage from 20% maximum to 30% maximum. o Reduces reflective glass percentages from 80% maximum facing right-of-way and 100% when not facing right-of-way by consolidating it into 75% maximum category. o Decreases the allowable amount of tile by moving it from meeting minimum brick/stone material category to the 10% maximum category. o Increases the 100% allowance for painted metal panel siding on rear façades when not visible from a right-of-way, parkland, greenway, or any residential area by removing confusing screening/buffering language.  Classifies split-face concrete masonry that does not simulate brick/stone as a 75% maximum.  Changes the material termed ‘hard board’ to be called ‘fiber cement siding.’  Adds ‘architecturally finished panels (not corrugated metal)’ as a qualifying type of metal.  Changes the threshold for existing buildings to change or replace material without the entire building being brought into material and color compliance from 10% of the area of all façades to 10% of the area of the façades being changed and only that façade needing to comply. Building Colors  Consolidates allowable accent color to a maximum of 10% on any façade. Accent colors are currently limited to 15% on any façade, while being reduced to maximum of 10% on façades in building plots of 50,000 gross square feet or more, and further reduced to maximum of 5% on façades in building plots of 150,000 gross square feet or more. The color palette was significantly expanded in 2011.  Removes prohibition of neon, metallic, and fluorescent colors. All these would be allowed as accent colors. Bicycle Facilities  Moves bicycle-related requirements out of the NRA section by creating UDO Section 12-7.2.J ‘Bicycle Facilities.’  Changes the requirement for bikes racks for at least 8 bikes for multi-tenant buildings in building plots of 50,000 gross square feet or more to be required for multi-tenant buildings in excess of 20,000 gross square feet.  Requires bike racks to be located within 150 feet of primary building entrances. Pedestrian Facilities  Moves pedestrian-related requirements out of the NRA section by creating UDO Section 12- 7.2.K ‘Pedestrian Facilities.’  Reduces the requirement to have a 10-foot sidewalk along the full frontage of any façade facing a public right-of-way in building plots of 50,000 gross square feet or more (except for pad sites) to only apply to public entry façade of retail buildings in which the public entry façades exceeds 200 feet in length.  Changes the requirement for minimum 5-foot sidewalk connections to be required between primary buildings and pad sites in building plots of 50,000 gross square feet or more to be required for building plots in excess of 10 acres in size.  Changes the requirement for a minimum 500 square-foot pedestrian plaza with three elements from building plots of 150,000 gross square feet or more to be required for site or building plots in excess of 10 acres in size, while removing the allowance for seating in the parking landscape areas to qualify as one of the three minimum plaza elements. Parking Lots  Moves parking-related requirements out of the NRA section and into UDO Section 12-7.3 ‘Off- Street Parking Standards.’  Consolidates the existing ‘End Islands’ and ‘Interior Islands’ sections as subsections in a new section called ‘Landscape Islands’ in which another subsection called ‘Large Parking Lots’ contains the 120+ parking lot concepts requirements moved out of the NRA section. Landscaping  Moves landscaping-related requirements out of the NRA section and into UDO Section 12-7.6 ‘Landscaping and Tree Protection.’  Reorganizes the core of the landscaping section to clarify site area and streetscape point requirements and landscape planting/screening requirements.  Simplifies the streetscape point calculation from 300 points for every 50 feet of frontage to 6 points for every 1 foot of frontage.  Clarifies that public ways are required to have streetscape and parking screening along them.  Changes the requirement to double site area landscape points in building plots of 50,000 gross square feet or more to be applicable to building plots in excess of 10 acres.  Changes the requirement to double site area landscape points if berms are not used to screen parking in building plots of 20,000 gross square feet or more to be applicable to building plots in excess of 10 acres.  Tree Well Requirements: o Changes the requirement for tree wells with canopy trees along all façades facing a public right-of-way in building plots of 50,000 gross square feet or more to only apply to façades facing a public right-of-way or public way that exceed 200 feet in length. o Allows the trees associated with the tree well requirement to be planted anywhere within 50 feet of the façade and allows trees used to meet the streetscape to also count toward this requirement. o Simplifies the amount of tree wells from along 15% of the façade to be 1 canopy tree for every 40 feet of façade length. o Removes the requirement that the trees need to be located in a grate or planter box.  Changes the requirement for a minimum 2-inch caliper trees in building plots of 50,000 gross square feet or more to be applicable to building plots in excess of 10 acres.  Changes the requirement for a minimum 2.5-inch caliper trees in building plots of 150,000 gross square feet or more to be applicable to building plots in excess of 15 acres.  Removes the requirement for berms to be used for parking screening in building plots of 150,000 gross square feet or more. A 10% landscape point credit is provided if a site utilizes the option to install berms for parking screening. Alternative Compliance  Adds new section that allows licensed architects to submit an application to have the Design Review Board consider innovative or visually interesting designs or to address unique circumstances in which application of the standards cannot be met. Waivers and Appeals  Removes the prohibition that a regarding a waiver to the brick/stone minimum requirement for building plots in excess of 20,000 gross square feet.  Expands the allowance for alternate color or materials for franchised and/or chain restaurants to include all commercial uses.  Removes the waiver for alternative parking lot concepts.  Adds a waiver request to allow up to 20% accent color be considered by the DRB.  Adds a relief option for building orientation and access requirements for MU Mixed-Use districts.  Adds a relief option for transparency requirements for existing buildings in MU Mixed-Use districts. Review Authority  In UDO Article 2, adds the authority to the Design Review Board to consider Alternative Compliance requests to the Non-Residential Architectural Standards and clarifies the Administrator has the authority to review architectural submittals. ORDINANCE NO. ____________ AN ORDINANCE AMENDING CHAPTER 12, "UNIFIED DEVELOPMENT ORDINANCE," ARTICLE 2, “DEVELOPMENT REVIEW BODIES,” AND ARTICLE 7, “GENERAL DEVELOPMENT STANDARDS,” OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS BY REVISING THE NON-RESIDENTIAL ARCHITECTURAL STANDARDS AND RELATED STANDARDS AND PROCESSES AS SET OUT BELOW; PROVIDING A SEVERABILITY CLAUSE; DECLARING A PENALTY; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STA TION, TEXAS: PART 1: That Chapter 12, “Unified Development Ordinance,” of the Code of Ordinances of the City of College Station, Texas, be amended as set out in Exhibit s “A,” “B,” “C,” “D,” “E,” “F,” “G,” and “H,” attached hereto and made a part of this ordinance for all purposes. PART 2: That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. PART 3: That any person, firm, or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty-five Dollars ($25.00) nor more than Two Thousand Dollars ($2,000.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 35 of the Charter of the City of College Station. PASSED, ADOPTED and APPROVED this 28th day of May, 2015. APPROVED: ____________________________________ Mayor ATTEST: _______________________________ City Secretary APPROVED: _______________________________ Page 2 of 26 City Attorney Page 3 of 26 EXHIBIT “A” That Chapter 12, “Unified Development Ordinance,” Article 2 “Development Review Bodies,” Section 12-2.5 “Design Review Board,” Section 12-2.5.D “Powers and Duties” is amended to have subsections 12-2.5.D.8 and 12-2.5.D.9 to read as follows: 8. Non-Residential Architectural Standards Appeals. The Design Review Board shall hear and decide appeal requests as specified in the Non-Residential Architectural Standards Section. 9. Non-Residential Architectural Standards Alternative Compliance. The Design Review Board shall hear and decide proposals for alternative compliance to the Non-Residential Architectural Standards. Page 4 of 26 EXHIBIT “B” That Chapter 12, “Unified Development Ordinance,” Article 2 “Development Review Bodies,” Section 12-2.8 “Administrator,” Section 12-2.8.B “Powers and Duties,” Section 12-2.8.B.4 “Final Action” is amended to renumber Subsections 12-2.8.B.4.c through 12-2.8.B.4.j to be Subsections 12-2.8.B.4.d through 12-2.8.B.4.k and add subsection 12-2.8.B.4.c to read as follows: c. Architectural reviews; Page 5 of 26 EXHIBIT “C” That Chapter 12, “Unified Development Ordinance,” Article 2 “Development Review Bodies,” Section 12-2.12 “Summary of Review Authority,” is amended to replace the “Gateway Grants” procedure line in the table under Design Review Board and add a new procedure line under Administrator to read as follows: PROCEDURE City Council P&Z Comm. Zoning Bd. of Adj. Design Rev. Bd. Land. Comm. Bike, Ped. & Grnwy Admin. Building Official Dev. Engr. DESIGN REVIEW BOARD (DRB) Non-Residential Arch. Stand. Alt. Compliance D RR ADMINISTRATOR Architectural Reviews D Page 6 of 26 EXHIBIT “D” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.2. “General Provisions” is amended by adding the following new sections to read as follows: J. Bicycle Facilities. 1. Number Required. a. For sites subject to the Non-Residential Architectural Standards of this UDO except for MU Mixed-Use districts: 1. Each primary building shall provide a facility capable of storing a minimum of four (4) bicycles. 2. In multi-tenant buildings in excess of 20,000 gross square feet, one (1) or more facilities capable of storing eight (8) bicycles shall be provided. b. In MU Mixed-Use districts, bicycle storage facilities shall be provided at a rate for one (1) bicycle for every 15,000 square foot of non-residential uses, and one (1) bicycle for every two (2) dwelling units. c. Refer to the Alternative Parking Plan Section for the potential to substitute additional bicycle facilities for vehicular parking. 2. Placement and Design. a. Facilities shall be separated from motor vehicle parking to protect both bicycles and vehicles from accidental damage and shall be sufficiently separated from building or other walls, landscaping, or other features to allow for ease and encouragement of use. This separation shall be a minimum of three (3) feet. b. Where bicycle facilities are provided for four (4) bicycles, the area for such a facility shall be approximately fifty-four (54) square feet in area, approximately nine (9) feet by six (6) feet or as approved by the Administrator. c. Facilities shall be placed in clearly designated, safe, and convenient locations and such that no primary building entrance is further than one hundred fifty (150) feet from a bicycle facility. b. Bicycles may be permitted on sidewalks or other paved surfaces provided that the bicycles do not block or interfere with pedestrian or vehicular traffic. c. Bicycle facilities shall be constructed so as to enable the user to secure a bicycle by locking the frame and one (1) wheel of each bicycle parked therein. Facilities must be easily usable with both U-locks and cable locks and support the bicycle frame at two (2) points. Facilities shall be anchored securely to the ground. K. Pedestrian Facilities. 1. In SC Suburban Commercial districts, pedestrian connections adjacent to residential areas shall be provided as determined by the Administrator so as to enhance pedestrian, bicycle mobility, and connectivity. Page 7 of 26 2. In MU Mixed-Use districts, minimum eight (8) foot wide sidewalks shall be provided along all public rights-of-way, streets, and public ways adjacent to and within the development. 3. For sites subject to the Non-Residential Architectural Standards of this UDO except for MU Mixed-Use districts: a. Public entry façades of retail buildings that exceed 200 feet in horizontal length shall place a minimum ten (10) foot sidewalk along the full frontage of its public entry façade. Tree wells and planter boxes may be placed along this walkway and in a manner that does not obstruct pedestrian movement. Bike parking facilities are allowed in this area. Vehicular parking or cart storage is prohibited. Outside display is allowed but only if it does not occupy more than thirty (30) percent of this area and meets the requirements of Outside Storage and Display Section. b. A site or sites part of a building plot in excess of 10 acres shall provide designated connections among primary buildings and pad sites for pedestrian and bicycle traffic. Locations for sidewalks and bicycle parking facilities shall be provided and shown on the site plan. Pedestrian walkways may be incorporated into the landscape strips separating parking areas only if the strip is ten (10) feet in width. Pedestrian walkways shall be a minimum of five (5) feet wide and shall connect public street sidewalks, transit stops, parking areas and other buildings in a design that ensures safe pedestrian use. c. A site or sites part of a building plot in excess of ten (10) acres shall provide one plaza developed as an integral part of the development and not less than five hundred (500) square feet in area. This area shall not count toward required parking islands or area requirements of a parking concept as described in the Large Parking Lots Section. This area shall incorporate a minimum of three (3) of the following: 1. Seating components 2. Structural or vegetative shading* 3. Water features* 4. Decorative landscape planters* 5. Public Art* 6. Outdoor eating accommodations 7. Hardscape elements at entrances and within the parking area such as decorative pavers, low masonry walls, clock towers, etc. * These public areas may be located within the parking landscape areas. Page 8 of 26 EXHIBIT “E” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.3 “Off-Street Parking Standards,” Section 12-7.3.C “Dimensions, Access, and Location,” is amended to renumber Subsections 12-7.3.C.11 and 12-7.3.C.12 to be Subsections 12-7.3.C.13 and 12-7.3.C.14 and amend Subsections 12-7.3.C.10, 12-7.3.C.11, and 12-7.3.C.12 to read as follows: 10. Parking lots located within fifteen (15) feet of a public right-of-way shall have a maximum of seven (7) contiguous spaces separated by an eighteen- by twenty-foot landscaped island. 11. All parking lots and drive aisles shall be setback a minimum of six (6) feet from any public right-of-way or public way. In sites subject to the Non-Residential Architectural Standards of this UDO, where parking or drive aisles are located between the building and the public right-of-way or public way, there shall be a minimum setback of ten (10) feet from the public right-of-way or public way to the parking area or drive aisle. 12. In SC Suburban Commercial districts, parking shall not be located between the structure and an adjacent single-family use or zoning district. Drive aisles and service aisles shall be permitted between the structures and an adjacent single-family use or zoning district. Page 9 of 26 EXHIBIT “F” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.3 “Off-Street Parking Standards,” is amended to renumber Sections 12- 7.3.F “Requirements Apply to All Parking Areas” through Section 12-7.3.K “Alternative Parking Plans” to be Sections 12-7.3.E “Requirements Apply to All Parking Areas” through Section 12- 7.3.J “Alternative Parking Plans” and Section 12-7.3.D “End Islands” is amended to be renamed and to read as follows: D. Landscape Islands 1. End Islands. a. A raised island, encompassing not less than one hundred eighty (180) square feet in area, shall be located at both ends of every interior and peripheral parking row, regardless of the length of the row. End islands may have sidewalks through them. Examples of interior and peripheral parking are shown in the figure below. b. All end islands must be raised at least six (6) inches and curbed, with the majority of the area of each island planted or treated with enhanced paving. The soil withi n the planted area shall not be compacted or stabilized and shall be contiguous with the soil at the natural grade. 2. Interior Islands. a. All interior islands shall be evenly distributed throughout the interior of the parking area. b. For every fifteen (15) interior parking spaces, one hundred eighty (180) square feet of landscaping must be provided somewhere in the interior rows of the parking lot. Interior island areas may be grouped and configured as desired provided that circulation aisles remain clear and the minimum island area is not less than one hundred eighty (180) square feet. Interior islands may have sidewalks through them. Page 10 of 26 c. End island areas that exceed the minimum required may be counted toward the interior parking island requirement. d. All interior islands must be raised at least six (6) inches and curbed, with the majority of the area of each island planted or treated with enhanced paving. The soil within the planted area shall not be compacted or stabilized and shall be contiguous with the soil at the natural grade. 3. Large Parking Lots. This subsection shall apply only to sites subject to the Non-Residential Architectural Standards of this UDO except for MU Mixed-Use districts: a. In order to break up the parking lot area and minimize visual impact, one (1) of the following parking concepts is required on any parking lot with greater than one hundred twenty (120) parking spaces. Parking concepts shall be approved by the Administrator provided that it meets one (1) of the following minimum criteria. Pedestrian walkways are allowed within the below-described areas. 1. Concept 1. Every one hundred twenty (120) parking spaces shall be a separate and distinct parking area connected by driving lanes but separated by landscaping strips a minimum of eight (8) feet wide and the full length of the parking row. Where pedestrian facilities are located within landscape strips or where vehicles would overhang these strips, the strip shall be a minimum of ten (10) feet wide; or, 2. Concept 2. For every one hundred twenty (120) parking spaces, a one thousand eight hundred (1,800) square foot landscaped island shall be installed (Landscape Pods). Such island(s) shall be located internal to the parking lot and shall be located so as to visually break up each one hundred twenty (120) parking spaces. The landscaping square footage calculation for parking lots greater than one hundred twenty (120) parking spaces shall be pro-rated at fifteen (15) square feet of landscaping per parking space; or, 3. Concept 3. For every one hundred twenty (120) parking spaces, an additional one thousand eight hundred (1,800) square feet of landscaped area shall be added/distributed to the interior row(s) end island(s) located closest to the right-of-way line (i.e. in conjunction with the minimum setback creating a double row of landscaping) but in no event shall the additional landscaped area be located farther than one hundred (100) feet from the right-of-way frontage. The landscaping square footage calculation for parking lots greater than one hundred twenty (120) parking spaces shall be pro-rated at fifteen (15) square feet of landscaping per parking space. b. Interior island area requirements may be consolidated into end islands, landscape strips, and landscape pods. Page 11 of 26 c. Shopping cart storage spaces shall be identified on the site plan. These spaces shall not be located in landscape islands or any areas designed for plantings or pedestrian or bike access. d. All landscaping strips, islands, pods, and areas used to segregate the one hundred twenty (120) space parking areas as provided for above under "Parking Lots" must include canopy trees or structural shading. This requirement shall not apply to auto sales lots. Page 12 of 26 EXHIBIT “G” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.6 “Landscaping and Tree Protection” is amended to rename Section 12- 7.6.C “Landscaping Requirements” to “Landscaping Point Requirements,” rename Section 12- 7.6.D “Streetscape Requirements” to “Planting and Screening Requirements,” and amend these Sections to read as follows: C. Landscaping Point Requirements. 1. The landscaping point requirements for a site is determined by the combined point total of Site Area and Streetscape subtotals. 2. Site Area Points. a. Minimum thirty (30) landscape points per one thousand (1,000) square feet of site area. For sites subject to the Non-Residential Architectural Standards of this UDO, the minimum points are increased to sixty (60) points per one thousand (1,000) square feet if the development or building plot exceeds of 10 acres or if a development or building plot in excess of 10 acres does not utilize berms to screen parking areas; b. The minimum total number of points for any development is eight hundred (800) points; c. Undeveloped floodplains may be removed from site size calculations; in such case, existing trees within that floodplain shall not be claimed for points; and d. Projects may be phased with the phase lines being drawn twenty (20) feet beyond any new site amenity. The portion left for subsequent phases shall be of developable size and quality. 3. Streetscape Points. a. Six (6) additional landscape points shall be required for every one (1) linear foot of frontage on a right-of-way or public way; and b. Driveway openings, visibility triangles, and other traffic control areas may be subtracted from total streetscape frontage. 4. Point Credits. The following point credits will apply to the total landscaping point requirement: a. A ten (10) percent point credit will be awarded where the irrigation system employed is a recognized water-conserving system. b. A ten (10) percent point credit will be awarded if twenty-five (25) percent or more of parking area consists of enhanced paving. c. A ten (10) percent point credit will be awarded for every one (1) percent of site area devoted to special facilities including water features, public art, or other public features determined by the Administrator. Page 13 of 26 d. A ten (10) percent point credit will be awarded for landscape plans that are prepared by a landscape architect registered in Texas, an International Society of Arboriculture (ISA) certified arborist or other professional as deemed appropriate by the Administrator. e. A ten (10) percent point credit will be awarded where berms are utilized for parking screening. 5. Point Values. a. Point values will be awarded for any type of canopy tree, non-canopy tree, or shrub, except for those listed on the Non-Point Tree List as prepared by the Administrator. No point value shall be awarded for ground cover. b. All caliper measurements shall be twelve (12) inches above grade. The minimum caliper for non-canopy trees are measured on a single cane of a multi-trunk tree. c. Landscaping points are accrued as follows: Plant Material Point Values Plant Material Points Accrued (per Plant) Installed Size Caliper (Inches) New Plantings Canopy Tree 75 1.5 to 2 150 2.1 to 3.4 300 3.5 and larger Non-Canopy Tree 40 1.25 and larger Shrubs 10 Min. 5 gallon Shrubs, not for screening 1 Min. 1 gallon Existing Trees with no Barricade Protection Area Canopy Tree 40 4 to 14.5 Non-Canopy Tree 35 2 and larger Page 14 of 26 Existing Trees Within Barricade Protection Area Canopy Tree 400 Between 4 and 8 500 8 and larger Non-Canopy Tree 150 Between 2 and 4 200 4 and larger d. To receive landscape points for existing trees, all existing trees must be in good form and condition and reasonably free of damage by insects and/or disease. e. To receive additional points for barricaded trees, such trees must be barricaded to the dripline of the tree. A barricade detail must be provided on the landscape plan. Barricades must be in place prior to any activity on the property including, but not limited to, grading. If the required barricades are not in place prior to any activity and maintained during construction, barricaded points will be forfeited. D. Planting and Screening Requirements. 1. General Requirements. a. Every project must expend a minimum of fifty (50) percent of its point total on canopy trees. b. For sites subject to the Non-Residential Architectural Standards of this UDO, canopy trees in a site or as part of a building plot in excess of 10 acres shall have a minimum allowable tree caliper of at least two (2) inches. Canopy trees in a site or as part of a building plot in excess of 15 acres shall have an increased minimum allowable tree caliper of at least two and one-half (2.5) inches. c. Landscaping must be reasonably dispersed throughout all visible areas of the site. d. One hundred (100) percent coverage of groundcover, decorative paving, decorative rock, or a perennial grass is required in parking lot islands, swales and drainage areas, and the parking lot setback unless otherwise landscaped or existing plants are preserved. When decorative rock is used, it shall be designed such that it will not migrate into sidewalks or other paved areas. One hundred (100) percent coverage of groundcover or perennial grass is also required in all unpaved portions of street or highway right-of-way or on adjacent property that has been disturbed during construction. If grass is to be used for groundcover, one hundred (100) percent live grass groundcover is required whether by solid sod overlay or pre-planting and successful takeover of grasses. e. All landscape materials shall be installed in accordance with the current planting procedures established by the most recent addition of The American Standard for Nursery Stock, as published by the American Association of Nurserymen. Page 15 of 26 f. For existing plantings, the Administrator may require a health appraisal. g. All new plantings must be irrigated. An irrigation system shall be designed so that it does not negatively impact existing trees and natural areas. Soaker hose and drip irrigation system designs may be permitted as the Administrator deems appropriate. 2. Streetscape. a. Within fifty (50) feet of the property line along all major arterials, freeways, and expressways as designated on the Thoroughfare Plan, one (1) canopy tree for every twenty-five (25) linear feet of frontage shall be installed; b. Within fifty (50) feet of the property line along all other roadways including public ways, one (1) canopy tree for every thirty-two (32) feet of frontage shall be installed; c. Fractional amounts shall be increased to the nearest whole number; d. Two (2) non-canopy trees may be substituted for one (1) canopy tree; e. Trees used to meet the requirement along one streetscape frontage shall not be counted toward another frontage; f. Canopy and non-canopy trees must be selected from the Administrator's Streetscape Plant List and may be grouped as desired so long as the trees are reasonably dispersed across each frontage; and g. One (1) existing tree (minimum four-inch caliper) may be substituted for a new tree. Existing trees must be of acceptable health, as determined by the Administrator. 3. Additional Landscaping along Large Building Façades. This subsection applies to sites subject to the Non-Residential Architectural Standards of this UDO: a. Sites with building façades that face a public right-of-way or public way and that exceed 200 feet in length shall place landscaping between the façade and roadway; b. One (1) canopy tree is required for every forty (40) feet of façade length. Fractional amounts shall be increased to the nearest whole number; c. The trees shall be placed within fifty (50) feet of the building façade; d. Two (2) non-canopy trees may be substituted for one (1) canopy tree; and e. Trees counting toward Streetscape planting requirements may also count toward the Additional Landscaping along Large Building Façades requirement. 4. Parking Screening. a. Parking areas adjacent to a right-of-way or public way shall be screened from the right-of-way or public way. b. Screening may be accomplished using plantings, berms, structural elements, or combinations thereof as described below, and must be a minimum of three (3) feet above the parking lot pavement elevation. Page 16 of 26 c. Walls and planting strips shall be located at least two (2) feet from any parking area. d. Where the street and the adjacent site are at different elevations, the Administrator may alter the height of the screening to ensure adequate screening. e. A minimum fifty (50) percent of all shrubs used for screening shall be evergreen. f. The following options are allowed as parking lot screening methods: i. A solid hedgerow (such as ten (10) shrubs for every thirty (30) linear feet of frontage) to screen the parking to a height of three (3) feet. The screening must be a minimum of twenty-four (24) inches at planting and reach thirty-six (36) inches within one (1) calendar year of planting, and such method is certified to meet these requirements by a registered Landscape Architect, landscape designer, or landscape contractor; ii. Berms with a minimum height of three (3) feet as measured from the parking lot pavement, and a maximum slope of 1:3. Berms may be designed around trees that are barricaded for tree preservation. Where there will be gaps in berm screening for the preservation of existing trees, other screening methods shall be used to meet the minimum three-foot screening requirement; or iii. Half-berms with a minimum height of three (3) feet as measured from the parking lot pavement, and a maximum allowable slope of 1:3. Retaining walls shall be designed to face the parking lot and sidewalks located between the retaining wall and right-of-way or public way may not be closer than three (3) feet to the top of a retaining wall. g. For redeveloping sites maintaining existing parking lot perimeters, the Administrator may authorize the use of masonry walls, or lower the minimum berm height to a height that may be safely maintained in the existing parking setback when additional parking lot screening is provided. The cumulative height of plant material and berm shall be a minimum of three (3) feet. h. Variations to the requirements of this Section may be approved if the landscape/streetscape plan is sealed by a registered Landscape Architect and approved by the Administrator. Such plans must show reasonable evidence that the requirements, as set forth in this Section were used as a guide. 5. Dumpsters, concrete retaining walls where more than six (6) vertical inches of untreated concrete are visible, off-street loading areas, utility connections, and any other site characteristics that could be considered visually offensive must be adequately screened. 6. Detention ponds shall be integrated into the overall landscaping theme and design of the site as described in Section 12-7.9.B. Detention Pond Aesthetic Design. Page 17 of 26 EXHIBIT “H” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.10 “Non-Residential Architectural Standards” is amended to read as follows: Sec. 12-7.10. Non-Residential Architectural Standards. A. Purpose. The intent of the design standards provided in and related to this Section are to: 1. Protect and enhance the character and quality of non-residential buildings and associated site elements in the interest of the general welfare of the City; 2. Establish minimum design parameters for the appearance of non -residential buildings including heightened standards for more visible and prominent areas of the community; 3. Not limit architectural creativity or prescribe a specific architectural style; and 4. Provide a balance between the community’s economic and aesthetic concerns. B. Applicability. Except as expressly set forth otherwise herein, the design standards of this Section shall apply to development, redevelopment, and façade changes to all non-residential buildings including single tenant buildings, multiple tenant buildings, and any grouping of attached or stand-alone buildings and associated pad sites. The portions of structures containing non-residential uses located in the MF Multi-Family zoning district shall comply with the Non-Residential design standards of this Section. The following are exempt from this section of the UDO as defined below: 1. BP Business Park. Any building located within BP Business Park districts is required to comply with this Section if it is along the periphery of the zoning district. All other interior buildings located within BP Business Park districts are exempt from this Section. 2. Districts. Uses located within the following districts are exempt from this Section: BPI Business Park Industrial, M-1 Light Industrial, M-2 Heavy Industrial, R&D Research & Development, NG-1 Core Northgate, NG-2 Transitional Northgate, and NG-3 Residential Northgate. 3. Uses. The following uses are exempt from this Section: Churches; Primary & Secondary Educational Facilities; Municipal Industrial facilities; and private utility buildings that are screened from public or private rights-of-way and adjacent properties. 4. Types of Structures. The following structures must adhere to Building Colors but are exempt from the other provisions of this Section: Freestanding structures such as pavilions, canopies, gazebos, ATM machines, etc. that are unenclosed buildings and do not have walls. Unenclosed structures that are attached or functionally appear part of an Page 18 of 26 enclosed building are to be integrated with and meet the requirements associated with the building. C. Standards for Non-Residential Structures. 1. Façade Terms. a. Primary Façade. A façade is considered to be a "primary façade” when it is the primary entrance façade of a primary building (not accessory buildings) or when any façade of a primary building is facing a public right -of-way, private right-of- way, or public way. b. Facing. A façade is considered facing a public right-of-way, private right-of-way, or public way when an imaginary plane could be extended unobstructed by a wall or structure in the building plot from at least 25% of the façade into the public right - of-way, private right-of-way, or public way adjacent to the building plot, as illustrated below. c. Visible. The term visible is used in application of this Section. A side or rear façade of a building shall not be considered visible from a public right-of-way or public way if it is located more than four-hundred (400) feet away. 2. Required Screening. a. All mechanical equipment shall be screened from view or located so as not to be visible from any public right-of-way, public way, or residential district when viewed within one hundred fifty (150) feet of the perimeter boundary of the subject lot or tract, measured from a height five (5) feet above grade. Such screening shall be coordinated with the building architecture, materials, colors and scale to Page 19 of 26 maintain a unified appearance. Acceptable methods of screening are: encasement, parapet walls, partition screens, brick/stone/masonry walls or fences. Electrical panel boxes attached to the side of a building that are painted to match the building color do not require additional screening. b. In SC Suburban Commercial, roof-mounted mechanical equipment shall be screened from any right-of-way, public way, or adjacent property by either the roof itself (including within a cut-out) or by a false roof element (i.e. - chimney, cupola). In SC Suburban Commercial districts, components of a mechanical equipment system, such as vents or exhaust pipes, protruding from the roof that are no larger than twelve (12) inches in diameter nor exceeding the height of the roof line are not required to be screened, but must be painted to match the roof color. 3. Building Mass and Design. a. Horizontal Façade Articulation. 1. Façade articulation (wall plane projections or recessions) is required on the first two (2) stories of any primary façade that exceeds two -hundred (200) feet in horizontal length. No more than thirty-three (33) percent of any primary façade shall be on the same continuous geometric plane. Wall plane projections or recessions shall have a minimum depth of four (4) feet. 2. For all properties zoned SC Suburban Commercial: For buildings over eight thousand (8,000) square feet, primary façades shall have articulation of minimum four-foot (4’) depth within each fifty-foot (50’) section of façade. 3. For all properties zoned MU Mixed-Use: The vertical wall plane of any façade visible from a public right-of-way, street, or public way shall project and/or recess by a minimum of two (2) feet so that no more than sixty-six (66) percent of the façade is on the same plane. b. Building Entry Design 1. In order to provide a sense of arrival and shelter, public building entrances are to feature a protected entry through the use of an awning, canopy, porte- cochere, recessed entry or other similar architectural element. 2. Buildings that have multiple ground floor tenants or multiple primary building entrances shall have all entrances treated architecturally. c. Architectural Relief. 1. In order to provide visual interest, the first two (2) stories of any primary façade or façade visible from a public right-of-way or public way shall use at least one (1) architectural relief element for every twenty-five (25) horizontal feet, or part thereof, of façade length. 2. Façades requiring architectural relief shall provide a minimum of two (2) different types of relief elements per façade. Page 20 of 26 3. To avoid monotony, no more than one-half (½) of the required minimum number of elements on a façade may consist of the same type of relief element. 4. The design elements may be grouped or spaced as needed along the façade, though in no case shall more than seventy-five (75) feet of continuous horizontal length be void of a relief element. 5. Design elements used to meet architectural relief must have a functional architectural purpose such as awnings may not be located over faux windows or a wall area that does not have an opening. 6. A relief element counted to meet the requirement of one façade may not also be counted toward another façade. 7. Architectural relief is not required for façades, or parts of a façade, that are within fifteen (15) feet of another building that screens the façade. 8. Accessory buildings to a primary use, where each façade is equal to or less than twenty-five (25) horizontal feet in length or the perimeter of all façades is less than one-hundred (100) horizontal feet in length, and where each façade incorporates the same building materials and colors as the primary structure, are not required to provide architectural relief elements. 9. Architectural relief elements may be added to a non-conforming façade of an existing building subject to the following limitation: if more than fifty (50) percent of the required number of elements on a façade are added, removed, or altered, including on a cumulative basis, the façade must be brought into compliance for architectural relief. 10. Qualifying Architectural Relief Elements. a. For all applicable properties other than those located in SC Suburban Commercial and MU Mixed-Use districts, the following types of architectural relief may be utilized to meet the requirements of this section: 1) Canopies, permanent decorative awnings, or windows accompanied by overhangs that exceed eighteen (18) inches; 2) Wall plane projections or recessions with a minimum of four-foot depth; 3) Pilasters that project from a wall at least four (4) inches or columns; 4) Roofline articulation as described below may count as one (1) element for a façade if it is used on a façade where the articulation is not already required; Page 21 of 26 5) A well-defined cornice or other architectural termination to visually cap the building along a parapet may count as one (1) element for a façade if it is used on a façade where this feature is not already required; 6) Recessed entries, stoops, porches, or arcades; 7) Balconies that extend from the building; 8) Boxed or bay windows; or 9) Decorative stormwater management initiatives physically integrated with the building, as approved by the Administrator. b. For all properties zoned SC Suburban Commercial, the following types of architectural relief may be utilized to meet the requirements of this section: 1) Decorative or functional window shutters; 2) Covered front Porch extending along at least fifty (50) percent of building façade and projecting a minimum of four (4) feet from the face of the building; 3) Eaves in excess of eighteen (18) inches; 4) Window planter boxes; 5) Window canopy; 6) Dormers; 7) Transom windows; 8) Decorative façade lighting; 9) Chimneys or cupolas; 10) Cross gables; or 11) Entry Portico. c. For all properties zoned MU Mixed-Use, the following types of architectural relief may be utilized to meet the requirements of this section: 1) Canopies or permanent decorative awnings; 2) Wall plane projections or recessions with a minimum of four-foot depth; 3) Pilasters that project from a wall at least four (4) inches or columns; 4) Recessed entries, stoops, porches, or arcades; 5) Balconies that extend from the building; 6) Boxed or bay/oriel windows; 7) Hood/drip molding over windows; Page 22 of 26 8) Cornices, corbelling, quoining, or stringcourses, 9) Decorative or functional window shutters; 10) Window planter boxes; 11) Transom windows; 12) Decorative façade lighting; or 13) Chimneys or cupolas. d. Other Mass and Design Requirements. 1. For all properties zoned SC Suburban Commercial: Gross Floor Area of a single structure shall not exceed fifteen thousand (15,000) square feet in area. 2. For all properties zoned MU Mixed-Use: a. The ground-floor shall have a minimum floor-to-ceiling height of twelve (12) feet. b. The commercial portions of any façade facing a public right-of-way, street, or public way shall be at least thirty (30) percent transparent between zero (0) feet and eight (8) feet above ground level. c. Public entry is required on all façades facing a public right -of-way, street, or public way. In the event that more than two (2) facades require a public entrance, the Administrator may determine which two (2) facades require entrances. The Administrator may also forward the question to the Design Review Board for any reason. d. Loading docks, overhead doors and service entries shall not be located on a façade facing a public right-of-way, street, or public way. In the case that more than two (2) facades face a public right-of-way, street, or public way, the Administrator shall determine the most appropriate façade for such activities. e. Roof and Roofline Design. 1. On buildings three (3) stories or less, the horizontal line of a flat roof or parapet along a primary entrance façade, along any façade facing a public right-of-way of a street classified as a minor arterial or greater on the Thoroughfare Plan, and on all façades visible from a public right-of-way for properties that are zoned MU Mixed Use, shall vary by a minimum of two (2) feet up or down so that no more than sixty-six (66) percent of the roofline is on the same elevation, as represented below. Page 23 of 26 2. For all rooflines that are required to articulate as described above, the parapet roof line shall feature a well-defined cornice or other architectural termination to visually cap the building along the roofline. 3. For all properties zoned SC Suburban Commercial: Roofs shall be similar to residential roof types. Flat roofs are not permitted. Shed roofs are only permitted as part of a peaked roof network. A peaked parapet is permitted if it gives the appearance of a pitched roof from all sides. Roof slope must be a maximum of 8:12 and a minimum of 4:12. 4. Building Materials. a. The following minimum amount of fired brick, natural stone, marble, granite, or any concrete product so long as it has an integrated color and is textured or patterned (not aggregate material) to simulate brick, stone, marble, or granite shall be provided: 1. A minimum of ten (10) percent on any façade visible from a public right-of- way or public way; 2. A minimum of twenty (20) percent on primary entrance façades (single or multiple tenant building) that exceed two-hundred (200) feet in horizontal length; 3. A minimum of twenty (20) percent on any façade facing a public right-of-way of a street classified as a major collector on the Thoroughfare Plan; and 4. A minimum of thirty (30) percent on any façade facing a public right-of-way of a street classified as a minor arterial or greater on the Thoroughfare Plan. b. Building materials used to meet the minimum material requirements as provided above may not be painted. c. The following building materials are allowed on all façades subject to the following limitations: 1. Stucco, EIFS, high build textured paint on concrete to simulate the appearance of stucco, split-face concrete masonry that does not simulate brick or stone, fiber cement siding, reflective glass, or any material equivalent in appearance and quality as determined by the Design Review Board, shall not cover more than seventy-five (75) percent of any façade. 2. Wood or cedar siding, stainless steel, chrome, standing seam metal, premium grade architectural metal, or architecturally finished metal panels (not corrugated metal) shall not cover more than thirty (30) percent of any façade. 3. Tile or smooth face, tinted concrete blocks shall only be used as an accent and shall not cover more than ten (10) percent of any façade. 4. Painted metal panel siding is allowed without limitation on a rear façade of a building when the façade is not visible from a right-of-way, parkland, greenway, or any residential area. Page 24 of 26 5. Galvanized steel and painted steel are allowed on doors, including roll-up doors. 6. Metal, standing seam metal, architectural metal or steel may be used as a roof and or canopy/awnings with no limitation on percentage. d. When determining the area of a façade, doors, windows, and other openings are included and roof area is not included. e. Existing buildings may continue to utilize materials other than those listed provided that any material replacement is for maintenance purposes only and the existing material is continued. Any material change or replacement of more than ten (10) percent of the total area of a façade, including on a cumulative basis, shall require that all building materials and color be brought into compliance on that façade. f. All architectural submittals shall provide elevation drawings for each façade and a material legend (see sample below) for each façade. SAMPLE LEGEND USE OF MATERIALS ON FAÇADE 'A' Total Square Footage of Façade 'A': 10,000 s.f. Material Area in Square Feet Percent of Overall Façade Stucco 2,000 s.f. 20% Brick 5,000 s.f. 50% Doors and Windows 3,000 s.f. 30% 5. Building Colors. a. All building façades and roofs shall consist of only colors from the color palette approved by the City Council as amended by the Design Review Board and maintained in the Office of the Administrator. All other colors shall be considered accent colors and may be used on no more than ten (10) percent of the façade on which the accent color is applied. c. When applying brick, colors normally found in manufactured fired brick are permitted. All colors of natural stone are permitted. d. Building and roof color requirements apply to all new buildings, redeveloped buildings, and façade work. Color samples shall be submitted for approval to the Office of the Administrator. e. Existing buildings may continue to utilize colors that are not from the approved color palette provided that repainting is done for maintenance purposes only and Page 25 of 26 the existing color is continued. Any color change on existing buildings shall be brought into compliance with this ordinance and color samples shall be submitted as provided herein. D. Alternative Compliance Permitted. The Design Review Board (DRB) may authorize variation to the overall requirements of the Non-Residential Architectural Standards through application from a licensed architect for an alternative compliance approval that would allow innovative or visually interesting design or to address unique circumstances not otherwise permitted through strict adherence to this Section. Such requests must show reasonable evidence that the purposes of the requirements as set forth in this Section were maintained and the additional design flexibility afforded does not provide a means to permit design of lesser quality. E. Waivers and Appeals. The Design Review Board (DRB) shall review requests for deviations from the Non- Residential Architectural Standards. The DRB shall approve waivers or appeals found meeting the intent and general purposes of the standards as it is recognized that unique and unforeseen design circumstances exist in application of the standards. Financial hardship may not be considered in the review or determination of a waiver proposal. DRB may review and grant approval of the following: 1. Substitutions of building materials if the applicant shows that: a. The building material is a new or innovative material manufactured that has not been previously available to the market or the material is not listed as an allowed or prohibited material herein; or b. The material is similar and comparable in quality and appearance to the materials allowed in this Section 12-7.10; or c. The material is an integral part of a themed building (example 50's diner in chrome). 2. Alternate colors or materials on each façade if the applicant shows that: a. The applicant is a franchised and/or chain commercial use to be developed as a single detached building (not integrated into a multi-tenant building); and b. The proposed colors/materials are part of its corporate branding; and c. The applicant provides all of the alternative color/materials schemes the chain or franchise has used. 3. Alternative materials on façade work that does not involve an expansion of an existing building as defined in Chapter 12, Article 9 of the UDO or constitute redevelopment if the applicant shows that: a. The materials allowed in this Section cannot be utilized without a structural alteration(s) to the existing building; and b. A licensed professional engineer or architect verifies in writing that a structural alteration is required to apply the permitted façade materials to the building. Page 26 of 26 c. The DRB may grant a variance of up to one hundred (100) percent from the façade articulation or roofline standards herein if the applicant shows that it is not financially or structurally feasible. 4. Alternatives to the options for required screening of mechanical equipment. 5. Alternatives to the design elements available to provide architectural relief. 6. An increase in the percentage of accent colors that may be used on a façade, not to exceed a total of twenty (20) percent of the façade. 7. Relief from the building orientation and access for buildings in MU Mixed-Use districts when physical characteristics limit the site or provide unique orientation and access opportunities. 8. Reduction in the percentage of required building transparency for the rehabilitation or expansion of existing buildings in MU Mixed-Use districts if it can be proven by the applicant that inherent site characteristics constrain the proposed project from meeting the transparency requirement. F. Submittal Requirements. When the non-residential architectural standards are applicable, submitted building elevations shall include the following: 1. Scaled building elevations for each façade, depicting the following: a. Required architectural relief and other design elements; and b. Location of building materials. 2. Accurate building footprint(s) and general orientation of the building façades in relation to adjacent rights-of-way, public ways, and properties; 3. Sample building materials and color details as required by the Administrator; and 4. Table of vertical square footage and percentage of building materials for each façade. ORDINANCE NO. ____________ AN ORDINANCE AMENDING CHAPTER 12, "UNIFIED DEVELOPMENT ORDINANCE," ARTICLE 2, “DEVELOPMENT REVIEW BODIES,” AND ARTICLE 7, “GENERAL DEVELOPMENT STANDARDS,” OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS BY REVISING THE NON-RESIDENTIAL ARCHITECTURAL STANDARDS AND RELATED STANDARDS AND PROCESSES AS SET OUT BELOW; PROVIDING A SEVERABILITY CLAUSE; DECLARING A PENALTY; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STA TION, TEXAS: PART 1: That Chapter 12, “Unified Development Ordinance,” of the Code of Ordinances of the City of College Station, Texas, be amended as set out in Exhibit s “A,” “B,” “C,” “D,” “E,” “F,” “G,” and “H,” attached hereto and made a part of this ordinance for all purposes. PART 2: That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. PART 3: That any person, firm, or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty-five Dollars ($25.00) nor more than Two Thousand Dollars ($2,000.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 35 of the Charter of the City of College Station. PASSED, ADOPTED and APPROVED this 28th day of May, 2015. APPROVED: ____________________________________ Mayor ATTEST: _______________________________ City Secretary APPROVED: _______________________________ Page 2 of 26 City Attorney Page 3 of 26 EXHIBIT “A” That Chapter 12, “Unified Development Ordinance,” Article 2 “Development Review Bodies,” Section 12-2.5 “Design Review Board,” Section 12-2.5.D “Powers and Duties” is amended to have subsections 12-2.5.D.8 and 12-2.5.D.9 to read as follows: 8. Non-Residential Architectural Standards Appeals. The Design Review Board shall hear and decide appeal requests as specified in the Non-Residential Architectural Standards Section. 9. Non-Residential Architectural Standards Alternative Compliance. The Design Review Board shall hear and decide proposals for alternative compliance to the Non-Residential Architectural Standards. Page 4 of 26 EXHIBIT “B” That Chapter 12, “Unified Development Ordinance,” Article 2 “Development Review Bodies,” Section 12-2.8 “Administrator,” Section 12-2.8.B “Powers and Duties,” Section 12-2.8.B.4 “Final Action” is amended to renumber Subsections 12-2.8.B.4.c through 12-2.8.B.4.j to be Subsections 12-2.8.B.4.d through 12-2.8.B.4.k and add subsection 12-2.8.B.4.c to read as follows: c. Architectural reviews; Page 5 of 26 EXHIBIT “C” That Chapter 12, “Unified Development Ordinance,” Article 2 “Development Review Bodies,” Section 12-2.12 “Summary of Review Authority,” is amended to replace the “Gateway Grants” procedure line in the table under Design Review Board and add a new procedure line under Administrator to read as follows: PROCEDURE City Council P&Z Comm. Zoning Bd. of Adj. Design Rev. Bd. Land. Comm. Bike, Ped. & Grnwy Admin. Building Official Dev. Engr. DESIGN REVIEW BOARD (DRB) Non-Residential Arch. Stand. Alt. Compliance D RR ADMINISTRATOR Architectural Reviews D Page 6 of 26 EXHIBIT “D” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.2. “General Provisions” is amended by adding the following new sections to read as follows: J. Bicycle Facilities. 1. Number Required. a. For sites subject to the Non-Residential Architectural Standards of this UDO except for MU Mixed-Use districts: 1. Each primary building shall provide a facility capable of storing a minimum of four (4) bicycles. 2. In multi-tenant buildings in excess of 20,000 gross square feet, one (1) or more facilities capable of storing eight (8) bicycles shall be provided. b. In MU Mixed-Use districts, bicycle storage facilities shall be provided at a rate for one (1) bicycle for every 15,000 square foot of non-residential uses, and one (1) bicycle for every two (2) dwelling units. c. Refer to the Alternative Parking Plan Section for the potential to substitute additional bicycle facilities for vehicular parking. 2. Placement and Design. a. Facilities shall be separated from motor vehicle parking to protect both bicycles and vehicles from accidental damage and shall be sufficiently separated from building or other walls, landscaping, or other features to allow for ease and encouragement of use. This separation shall be a minimum of three (3) feet. b. Where bicycle facilities are provided for four (4) bicycles, the area for such a facility shall be approximately fifty-four (54) square feet in area, approximately nine (9) feet by six (6) feet or as approved by the Administrator. c. Facilities shall be placed in clearly designated, safe, and convenient locations and such that no primary building entrance is further than one hundred fifty (150) feet from a bicycle facility. b. Bicycles may be permitted on sidewalks or other paved surfaces provided that the bicycles do not block or interfere with pedestrian or vehicular traffic. c. Bicycle facilities shall be constructed so as to enable the user to secure a bicycle by locking the frame and one (1) wheel of each bicycle parked therein. Facilities must be easily usable with both U-locks and cable locks and support the bicycle frame at two (2) points. Facilities shall be anchored securely to the ground. K. Pedestrian Facilities. 1. In SC Suburban Commercial districts, pedestrian connections adjacent to residential areas shall be provided as determined by the Administrator so as to enhance pedestrian, bicycle mobility, and connectivity. Page 7 of 26 2. In MU Mixed-Use districts, minimum eight (8) foot wide sidewalks shall be provided along all public rights-of-way, streets, and public ways adjacent to and within the development. 3. For sites subject to the Non-Residential Architectural Standards of this UDO except for MU Mixed-Use districts: a. Public entry façades of retail buildings that exceed 200 feet in horizontal length shall place a minimum ten (10) foot sidewalk along the full frontage of its public entry façade. Tree wells and planter boxes may be placed along this walkway and in a manner that does not obstruct pedestrian movement. Bike parking facilities are allowed in this area. Vehicular parking or cart storage is prohibited. Outside display is allowed but only if it does not occupy more than thirty (30) percent of this area and meets the requirements of Outside Storage and Display Section. b. A site or sites part of a building plot in excess of 10 acres shall provide designated connections among primary buildings and pad sites for pedestrian and bicycle traffic. Locations for sidewalks and bicycle parking facilities shall be provided and shown on the site plan. Pedestrian walkways may be incorporated into the landscape strips separating parking areas only if the strip is ten (10) feet in width. Pedestrian walkways shall be a minimum of five (5) feet wide and shall connect public street sidewalks, transit stops, parking areas and other buildings in a design that ensures safe pedestrian use. c. A site or sites part of a building plot in excess of ten (10) acres shall provide one plaza developed as an integral part of the development and not less than five hundred (500) square feet in area. This area shall not count toward required parking islands or area requirements of a parking concept as described in the Large Parking Lots Section. This area shall incorporate a minimum of three (3) of the following: 1. Seating components 2. Structural or vegetative shading* 3. Water features* 4. Decorative landscape planters* 5. Public Art* 6. Outdoor eating accommodations 7. Hardscape elements at entrances and within the parking area such as decorative pavers, low masonry walls, clock towers, etc. * These public areas may be located within the parking landscape areas. Page 8 of 26 EXHIBIT “E” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.3 “Off-Street Parking Standards,” Section 12-7.3.C “Dimensions, Access, and Location,” is amended to renumber Subsections 12-7.3.C.11 and 12-7.3.C.12 to be Subsections 12-7.3.C.13 and 12-7.3.C.14 and amend Subsections 12-7.3.C.10, 12-7.3.C.11, and 12-7.3.C.12 to read as follows: 10. Parking lots located within fifteen (15) feet of a public right-of-way shall have a maximum of seven (7) contiguous spaces separated by an eighteen- by twenty-foot landscaped island. 11. All parking lots and drive aisles shall be setback a minimum of six (6) feet from any public right-of-way or public way. In sites subject to the Non-Residential Architectural Standards of this UDO, where parking or drive aisles are located between the building and the public right-of-way or public way, there shall be a minimum setback of ten (10) feet from the public right-of-way or public way to the parking area or drive aisle. 12. In SC Suburban Commercial districts, parking shall not be located between the structure and an adjacent single-family use or zoning district. Drive aisles and service aisles shall be permitted between the structures and an adjacent single-family use or zoning district. Page 9 of 26 EXHIBIT “F” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.3 “Off-Street Parking Standards,” is amended to renumber Sections 12- 7.3.F “Requirements Apply to All Parking Areas” through Section 12-7.3.K “Alternative Parking Plans” to be Sections 12-7.3.E “Requirements Apply to All Parking Areas” through Section 12- 7.3.J “Alternative Parking Plans” and Section 12-7.3.D “End Islands” is amended to be renamed and to read as follows: D. Landscape Islands 1. End Islands. a. A raised island, encompassing not less than one hundred eighty (180) square feet in area, shall be located at both ends of every interior and peripheral parking row, regardless of the length of the row. End islands may have sidewalks through them. Examples of interior and peripheral parking are shown in the figure below. b. All end islands must be raised at least six (6) inches and curbed, with the majority of the area of each island planted or treated with enhanced paving. The soil withi n the planted area shall not be compacted or stabilized and shall be contiguous with the soil at the natural grade. 2. Interior Islands. a. All interior islands shall be evenly distributed throughout the interior of the parking area. b. For every fifteen (15) interior parking spaces, one hundred eighty (180) square feet of landscaping must be provided somewhere in the interior rows of the parking lot. Interior island areas may be grouped and configured as desired provided that circulation aisles remain clear and the minimum island area is not less than one hundred eighty (180) square feet. Interior islands may have sidewalks through them. Page 10 of 26 c. End island areas that exceed the minimum required may be counted toward the interior parking island requirement. d. All interior islands must be raised at least six (6) inches and curbed, with the majority of the area of each island planted or treated with enhanced paving. The soil within the planted area shall not be compacted or stabilized and shall be contiguous with the soil at the natural grade. 3. Large Parking Lots. This subsection shall apply only to sites subject to the Non-Residential Architectural Standards of this UDO except for MU Mixed-Use districts: a. In order to break up the parking lot area and minimize visual impact, one (1) of the following parking concepts is required on any parking lot with greater than one hundred twenty (120) parking spaces. Parking concepts shall be approved by the Administrator provided that it meets one (1) of the following minimum criteria. Pedestrian walkways are allowed within the below-described areas. 1. Concept 1. Every one hundred twenty (120) parking spaces shall be a separate and distinct parking area connected by driving lanes but separated by landscaping strips a minimum of eight (8) feet wide and the full length of the parking row. Where pedestrian facilities are located within landscape strips or where vehicles would overhang these strips, the strip shall be a minimum of ten (10) feet wide; or, 2. Concept 2. For every one hundred twenty (120) parking spaces, a one thousand eight hundred (1,800) square foot landscaped island shall be installed (Landscape Pods). Such island(s) shall be located internal to the parking lot and shall be located so as to visually break up each one hundred twenty (120) parking spaces. The landscaping square footage calculation for parking lots greater than one hundred twenty (120) parking spaces shall be pro-rated at fifteen (15) square feet of landscaping per parking space; or, 3. Concept 3. For every one hundred twenty (120) parking spaces, an additional one thousand eight hundred (1,800) square feet of landscaped area shall be added/distributed to the interior row(s) end island(s) located closest to the right-of-way line (i.e. in conjunction with the minimum setback creating a double row of landscaping) but in no event shall the additional landscaped area be located farther than one hundred (100) feet from the right-of-way frontage. The landscaping square footage calculation for parking lots greater than one hundred twenty (120) parking spaces shall be pro-rated at fifteen (15) square feet of landscaping per parking space. b. Interior island area requirements may be consolidated into end islands, landscape strips, and landscape pods. Page 11 of 26 c. Shopping cart storage spaces shall be identified on the site plan. These spaces shall not be located in landscape islands or any areas designed for plantings or pedestrian or bike access. d. All landscaping strips, islands, pods, and areas used to segregate the one hundred twenty (120) space parking areas as provided for above under "Parking Lots" must include canopy trees or structural shading. This requirement shall not apply to auto sales lots. Page 12 of 26 EXHIBIT “G” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.6 “Landscaping and Tree Protection” is amended to rename Section 12- 7.6.C “Landscaping Requirements” to “Landscaping Point Requirements,” rename Section 12- 7.6.D “Streetscape Requirements” to “Planting and Screening Requirements,” and amend these Sections to read as follows: C. Landscaping Point Requirements. 1. The landscaping point requirements for a site is determined by the combined point total of Site Area and Streetscape subtotals. 2. Site Area Points. a. Minimum thirty (30) landscape points per one thousand (1,000) square feet of site area. For sites subject to the Non-Residential Architectural Standards of this UDO, the minimum points are increased to sixty (60) points per one thousand (1,000) square feet if the development or building plot exceeds of 10 acres or if a development or building plot in excess of 10 acres does not utilize berms to screen parking areas; b. The minimum total number of points for any development is eight hundred (800) points; c. Undeveloped floodplains may be removed from site size calculations; in such case, existing trees within that floodplain shall not be claimed for points; and d. Projects may be phased with the phase lines being drawn twenty (20) feet beyond any new site amenity. The portion left for subsequent phases shall be of developable size and quality. 3. Streetscape Points. a. Six (6) additional landscape points shall be required for every one (1) linear foot of frontage on a right-of-way or public way; and b. Driveway openings, visibility triangles, and other traffic control areas may be subtracted from total streetscape frontage. 4. Point Credits. The following point credits will apply to the total landscaping point requirement: a. A ten (10) percent point credit will be awarded where the irrigation system employed is a recognized water-conserving system. b. A ten (10) percent point credit will be awarded if twenty-five (25) percent or more of parking area consists of enhanced paving. c. A ten (10) percent point credit will be awarded for every one (1) percent of site area devoted to special facilities including water features, public art, or other public features determined by the Administrator. Page 13 of 26 d. A ten (10) percent point credit will be awarded for landscape plans that are prepared by a landscape architect registered in Texas, an International Society of Arboriculture (ISA) certified arborist or other professional as deemed appropriate by the Administrator. e. A ten (10) percent point credit will be awarded where berms are utilized for parking screening. 5. Point Values. a. Point values will be awarded for any type of canopy tree, non-canopy tree, or shrub, except for those listed on the Non-Point Tree List as prepared by the Administrator. No point value shall be awarded for ground cover. b. All caliper measurements shall be twelve (12) inches above grade. The minimum caliper for non-canopy trees are measured on a single cane of a multi-trunk tree. c. Landscaping points are accrued as follows: Plant Material Point Values Plant Material Points Accrued (per Plant) Installed Size Caliper (Inches) New Plantings Canopy Tree 75 1.5 to 2 150 2.1 to 3.4 300 3.5 and larger Non-Canopy Tree 40 1.25 and larger Shrubs 10 Min. 5 gallon Shrubs, not for screening 1 Min. 1 gallon Existing Trees with no Barricade Protection Area Canopy Tree 40 4 to 14.5 Non-Canopy Tree 35 2 and larger Page 14 of 26 Existing Trees Within Barricade Protection Area Canopy Tree 400 Between 4 and 8 500 8 and larger Non-Canopy Tree 150 Between 2 and 4 200 4 and larger d. To receive landscape points for existing trees, all existing trees must be in good form and condition and reasonably free of damage by insects and/or disease. e. To receive additional points for barricaded trees, such trees must be barricaded to the dripline of the tree. A barricade detail must be provided on the landscape plan. Barricades must be in place prior to any activity on the property including, but not limited to, grading. If the required barricades are not in place prior to any activity and maintained during construction, barricaded points will be forfeited. D. Planting and Screening Requirements. 1. General Requirements. a. Every project must expend a minimum of fifty (50) percent of its point total on canopy trees. b. For sites subject to the Non-Residential Architectural Standards of this UDO, canopy trees in a site or as part of a building plot in excess of 10 acres shall have a minimum allowable tree caliper of at least two (2) inches. Canopy trees in a site or as part of a building plot in excess of 15 acres shall have an increased minimum allowable tree caliper of at least two and one-half (2.5) inches. c. Landscaping must be reasonably dispersed throughout all visible areas of the site. d. One hundred (100) percent coverage of groundcover, decorative paving, decorative rock, or a perennial grass is required in parking lot islands, swales and drainage areas, and the parking lot setback unless otherwise landscaped or existing plants are preserved. When decorative rock is used, it shall be designed such that it will not migrate into sidewalks or other paved areas. One hundred (100) percent coverage of groundcover or perennial grass is also required in all unpaved portions of street or highway right-of-way or on adjacent property that has been disturbed during construction. If grass is to be used for groundcover, one hundred (100) percent live grass groundcover is required whether by solid sod overlay or pre-planting and successful takeover of grasses. e. All landscape materials shall be installed in accordance with the current planting procedures established by the most recent addition of The American Standard for Nursery Stock, as published by the American Association of Nurserymen. Page 15 of 26 f. For existing plantings, the Administrator may require a health appraisal. g. All new plantings must be irrigated. An irrigation system shall be designed so that it does not negatively impact existing trees and natural areas. Soaker hose and drip irrigation system designs may be permitted as the Administrator deems appropriate. 2. Streetscape. a. Within fifty (50) feet of the property line along all major arterials, freeways, and expressways as designated on the Thoroughfare Plan, one (1) canopy tree for every twenty-five (25) linear feet of frontage shall be installed; b. Within fifty (50) feet of the property line along all other roadways including public ways, one (1) canopy tree for every thirty-two (32) feet of frontage shall be installed; c. Fractional amounts shall be increased to the nearest whole number; d. Two (2) non-canopy trees may be substituted for one (1) canopy tree; e. Trees used to meet the requirement along one streetscape frontage shall not be counted toward another frontage; f. Canopy and non-canopy trees must be selected from the Administrator's Streetscape Plant List and may be grouped as desired so long as the trees are reasonably dispersed across each frontage; and g. One (1) existing tree (minimum four-inch caliper) may be substituted for a new tree. Existing trees must be of acceptable health, as determined by the Administrator. 3. Additional Landscaping along Large Building Façades. This subsection applies to sites subject to the Non-Residential Architectural Standards of this UDO: a. Sites with building façades that face a public right-of-way or public way and that exceed 200 feet in length shall place landscaping between the façade and roadway; b. One (1) canopy tree is required for every forty (40) feet of façade length. Fractional amounts shall be increased to the nearest whole number; c. The trees shall be placed within fifty (50) feet of the building façade; d. Two (2) non-canopy trees may be substituted for one (1) canopy tree; and e. Trees counting toward Streetscape planting requirements may also count toward the Additional Landscaping along Large Building Façades requirement. 4. Parking Screening. a. Parking areas adjacent to a right-of-way or public way shall be screened from the right-of-way or public way. b. Screening may be accomplished using plantings, berms, structural elements, or combinations thereof as described below, and must be a minimum of three (3) feet above the parking lot pavement elevation. Page 16 of 26 c. Walls and planting strips shall be located at least two (2) feet from any parking area. d. Where the street and the adjacent site are at different elevations, the Administrator may alter the height of the screening to ensure adequate screening. e. A minimum fifty (50) percent of all shrubs used for screening shall be evergreen. f. The following options are allowed as parking lot screening methods: i. A solid hedgerow (such as ten (10) shrubs for every thirty (30) linear feet of frontage) to screen the parking to a height of three (3) feet. The screening must be a minimum of twenty-four (24) inches at planting and reach thirty-six (36) inches within one (1) calendar year of planting, and such method is certified to meet these requirements by a registered Landscape Architect, landscape designer, or landscape contractor; ii. Berms with a minimum height of three (3) feet as measured from the parking lot pavement, and a maximum slope of 1:3. Berms may be designed around trees that are barricaded for tree preservation. Where there will be gaps in berm screening for the preservation of existing trees, other screening methods shall be used to meet the minimum three-foot screening requirement; or iii. Half-berms with a minimum height of three (3) feet as measured from the parking lot pavement, and a maximum allowable slope of 1:3. Retaining walls shall be designed to face the parking lot and sidewalks located between the retaining wall and right-of-way or public way may not be closer than three (3) feet to the top of a retaining wall. g. For redeveloping sites maintaining existing parking lot perimeters, the Administrator may authorize the use of masonry walls, or lower the minimum berm height to a height that may be safely maintained in the existing parking setback when additional parking lot screening is provided. The cumulative height of plant material and berm shall be a minimum of three (3) feet. h. Variations to the requirements of this Section may be approved if the landscape/streetscape plan is sealed by a registered Landscape Architect and approved by the Administrator. Such plans must show reasonable evidence that the requirements, as set forth in this Section were used as a guide. 5. Dumpsters, concrete retaining walls where more than six (6) vertical inches of untreated concrete are visible, off-street loading areas, utility connections, and any other site characteristics that could be considered visually offensive must be adequately screened. 6. Detention ponds shall be integrated into the overall landscaping theme and design of the site as described in Section 12-7.9.B. Detention Pond Aesthetic Design. Page 17 of 26 EXHIBIT “H” That Chapter 12, “Unified Development Ordinance,” Article 7 “General Development Standards,” Section 12-7.10 “Non-Residential Architectural Standards” is amended to read as follows: Sec. 12-7.10. Non-Residential Architectural Standards. A. Purpose. The intent of the design standards provided in and related to this Section are to: 1. Protect and enhance the character and quality of non-residential buildings and associated site elements in the interest of the general welfare of the City; 2. Establish minimum design parameters for the appearance of non -residential buildings including heightened standards for more visible and prominent areas of the community; 3. Not limit architectural creativity or prescribe a specific architectural style; and 4. Provide a balance between the community’s economic and aesthetic concerns. B. Applicability. Except as expressly set forth otherwise herein, the design standards of this Section shall apply to development, redevelopment, and façade changes to all non-residential buildings including single tenant buildings, multiple tenant buildings, and any grouping of attached or stand-alone buildings and associated pad sites. The portions of structures containing non-residential uses located in the MF Multi-Family zoning district shall comply with the Non-Residential design standards of this Section. The following are exempt from this section of the UDO as defined below: 1. BP Business Park. Any building located within BP Business Park districts is required to comply with this Section if it is along the periphery of the zoning district. All other interior buildings located within BP Business Park districts are exempt from this Section. 2. Districts. Uses located within the following districts are exempt from this Section: BPI Business Park Industrial, M-1 Light Industrial, M-2 Heavy Industrial, R&D Research & Development, NG-1 Core Northgate, NG-2 Transitional Northgate, and NG-3 Residential Northgate. 3. Uses. The following uses are exempt from this Section: Churches; Primary & Secondary Educational Facilities; Municipal Industrial facilities; and private utility buildings that are screened from public or private rights-of-way and adjacent properties. 4. Types of Structures. The following structures must adhere to Building Colors but are exempt from the other provisions of this Section: Freestanding structures such as pavilions, canopies, gazebos, ATM machines, etc. that are unenclosed buildings and do not have walls. Unenclosed structures that are attached or functionally appear part of an Page 18 of 26 enclosed building are to be integrated with and meet the requirements associated with the building. C. Standards for Non-Residential Structures. 1. Façade Terms. a. Primary Façade. A façade is considered to be a "primary façade” when it is the primary entrance façade of a primary building (not accessory buildings) or when any façade of a primary building is facing a public right -of-way, private right-of- way, or public way. b. Facing. A façade is considered facing a public right-of-way, private right-of-way, or public way when an imaginary plane could be extended unobstructed by a wall or structure in the building plot from at least 25% of the façade into the public right - of-way, private right-of-way, or public way adjacent to the building plot, as illustrated below. c. Visible. The term visible is used in application of this Section. A side or rear façade of a building shall not be considered visible from a public right-of-way or public way if it is located more than four-hundred (400) feet away. 2. Required Screening. a. All mechanical equipment shall be screened from view or located so as not to be visible from any public right-of-way, public way, or residential district when viewed within one hundred fifty (150) feet of the perimeter boundary of the subject lot or tract, measured from a height five (5) feet above grade. Such screening shall be coordinated with the building architecture, materials, colors and scale to Page 19 of 26 maintain a unified appearance. Acceptable methods of screening are: encasement, parapet walls, partition screens, brick/stone/masonry walls or fences. Electrical panel boxes attached to the side of a building that are painted to match the building color do not require additional screening. b. In SC Suburban Commercial, roof-mounted mechanical equipment shall be screened from any right-of-way, public way, or adjacent property by either the roof itself (including within a cut-out) or by a false roof element (i.e. - chimney, cupola). In SC Suburban Commercial districts, components of a mechanical equipment system, such as vents or exhaust pipes, protruding from the roof that are no larger than twelve (12) inches in diameter nor exceeding the height of the roof line are not required to be screened, but must be painted to match the roof color. 3. Building Mass and Design. a. Horizontal Façade Articulation. 1. Façade articulation (wall plane projections or recessions) is required on the first two (2) stories of any primary façade that exceeds two -hundred (200) feet in horizontal length. No more than thirty-three (33) percent of any primary façade shall be on the same continuous geometric plane. Wall plane projections or recessions shall have a minimum depth of four (4) feet. 2. For all properties zoned SC Suburban Commercial: For buildings over eight thousand (8,000) square feet, primary façades shall have articulation of minimum four-foot (4’) depth within each fifty-foot (50’) section of façade. 3. For all properties zoned MU Mixed-Use: The vertical wall plane of any façade visible from a public right-of-way, street, or public way shall project and/or recess by a minimum of two (2) feet so that no more than sixty-six (66) percent of the façade is on the same plane. b. Building Entry Design 1. In order to provide a sense of arrival and shelter, public building entrances are to feature a protected entry through the use of an awning, canopy, porte- cochere, recessed entry or other similar architectural element. 2. Buildings that have multiple ground floor tenants or multiple primary building entrances shall have all entrances treated architecturally. c. Architectural Relief. 1. In order to provide visual interest, the first two (2) stories of any primary façade or façade visible from a public right-of-way or public way shall use at least one (1) architectural relief element for every twenty-five (25) horizontal feet, or part thereof, of façade length. 2. Façades requiring architectural relief shall provide a minimum of two (2) different types of relief elements per façade. Page 20 of 26 3. To avoid monotony, no more than one-half (½) of the required minimum number of elements on a façade may consist of the same type of relief element. 4. The design elements may be grouped or spaced as needed along the façade, though in no case shall more than seventy-five (75) feet of continuous horizontal length be void of a relief element. 5. Design elements used to meet architectural relief must have a functional architectural purpose such as awnings may not be located over faux windows or a wall area that does not have an opening. 6. A relief element counted to meet the requirement of one façade may not also be counted toward another façade. 7. Architectural relief is not required for façades, or parts of a façade, that are within fifteen (15) feet of another building that screens the façade. 8. Accessory buildings to a primary use, where each façade is equal to or less than twenty-five (25) horizontal feet in length or the perimeter of all façades is less than one-hundred (100) horizontal feet in length, and where each façade incorporates the same building materials and colors as the primary structure, are not required to provide architectural relief elements. 9. Architectural relief elements may be added to a non-conforming façade of an existing building subject to the following limitation: if more than fifty (50) percent of the required number of elements on a façade are added, removed, or altered, including on a cumulative basis, the façade must be brought into compliance for architectural relief. 10. Qualifying Architectural Relief Elements. a. For all applicable properties other than those located in SC Suburban Commercial and MU Mixed-Use districts, the following types of architectural relief may be utilized to meet the requirements of this section: 1) Canopies, permanent decorative awnings, or windows accompanied by overhangs that exceed eighteen (18) inches; 2) Wall plane projections or recessions with a minimum of four-foot depth; 3) Pilasters that project from a wall at least four (4) inches or columns; 4) Roofline articulation as described below may count as one (1) element for a façade if it is used on a façade where the articulation is not already required; Page 21 of 26 5) A well-defined cornice or other architectural termination to visually cap the building along a parapet may count as one (1) element for a façade if it is used on a façade where this feature is not already required; 6) Recessed entries, stoops, porches, or arcades; 7) Balconies that extend from the building; 8) Boxed or bay windows; or 9) Decorative stormwater management initiatives physically integrated with the building, as approved by the Administrator. b. For all properties zoned SC Suburban Commercial, the following types of architectural relief may be utilized to meet the requirements of this section: 1) Decorative or functional window shutters; 2) Covered front Porch extending along at least fifty (50) percent of building façade and projecting a minimum of four (4) feet from the face of the building; 3) Eaves in excess of eighteen (18) inches; 4) Window planter boxes; 5) Window canopy; 6) Dormers; 7) Transom windows; 8) Decorative façade lighting; 9) Chimneys or cupolas; 10) Cross gables; or 11) Entry Portico. c. For all properties zoned MU Mixed-Use, the following types of architectural relief may be utilized to meet the requirements of this section: 1) Canopies or permanent decorative awnings; 2) Wall plane projections or recessions with a minimum of four-foot depth; 3) Pilasters that project from a wall at least four (4) inches or columns; 4) Recessed entries, stoops, porches, or arcades; 5) Balconies that extend from the building; 6) Boxed or bay/oriel windows; 7) Hood/drip molding over windows; Page 22 of 26 8) Cornices, corbelling, quoining, or stringcourses, 9) Decorative or functional window shutters; 10) Window planter boxes; 11) Transom windows; 12) Decorative façade lighting; or 13) Chimneys or cupolas. d. Other Mass and Design Requirements. 1. For all properties zoned SC Suburban Commercial: Gross Floor Area of a single structure shall not exceed fifteen thousand (15,000) square feet in area. 2. For all properties zoned MU Mixed-Use: a. The ground-floor shall have a minimum floor-to-ceiling height of twelve (12) feet. b. The commercial portions of any façade facing a public right-of-way, street, or public way shall be at least thirty (30) percent transparent between zero (0) feet and eight (8) feet above ground level. c. Public entry is required on all façades facing a public right -of-way, street, or public way. In the event that more than two (2) facades require a public entrance, the Administrator may determine which two (2) facades require entrances. The Administrator may also forward the question to the Design Review Board for any reason. d. Loading docks, overhead doors and service entries shall not be located on a façade facing a public right-of-way, street, or public way. In the case that more than two (2) facades face a public right-of-way, street, or public way, the Administrator shall determine the most appropriate façade for such activities. e. Roof and Roofline Design. 1. On buildings three (3) stories or less, the horizontal line of a flat roof or parapet along a primary entrance façade, along any façade facing a public right-of-way of a street classified as a minor arterial or greater on the Thoroughfare Plan, and on all façades visible from a public right-of-way for properties that are zoned MU Mixed Use, shall vary by a minimum of two (2) feet up or down so that no more than sixty-six (66) percent of the roofline is on the same elevation, as represented below. Page 23 of 26 2. For all rooflines that are required to articulate as described above, the parapet roof line shall feature a well-defined cornice or other architectural termination to visually cap the building along the roofline. 3. For all properties zoned SC Suburban Commercial: Roofs shall be similar to residential roof types. Flat roofs are not permitted. Shed roofs are only permitted as part of a peaked roof network. A peaked parapet is permitted if it gives the appearance of a pitched roof from all sides. Roof slope must be a maximum of 8:12 and a minimum of 4:12. 4. Building Materials. a. The following minimum amount of fired brick, natural stone, marble, granite, or any concrete product so long as it has an integrated color and is textured or patterned (not aggregate material) to simulate brick, stone, marble, or granite shall be provided: 1. A minimum of ten (10) percent on any façade visible from a public right-of- way or public way; 2. A minimum of twenty (20) percent on primary entrance façades (single or multiple tenant building) that exceed two-hundred (200) feet in horizontal length; 3. A minimum of twenty (20) percent on any façade facing a public right-of-way of a street classified as a major collector on the Thoroughfare Plan; and 4. A minimum of thirty (30) percent on any façade facing a public right-of-way of a street classified as a minor arterial or greater on the Thoroughfare Plan. b. Building materials used to meet the minimum material requirements as provided above may not be painted. c. The following building materials are allowed on all façades subject to the following limitations: 1. Stucco, EIFS, high build textured paint on concrete to simulate the appearance of stucco, split-face concrete masonry that does not simulate brick or stone, fiber cement siding, reflective glass, or any material equivalent in appearance and quality as determined by the Design Review Board, shall not cover more than seventy-five (75) percent of any façade. 2. Wood or cedar siding, stainless steel, chrome, standing seam metal, premium grade architectural metal, or architecturally finished metal panels (not corrugated metal) shall not cover more than thirty (30) percent of any façade. 3. Tile or smooth face, tinted concrete blocks shall only be used as an accent and shall not cover more than ten (10) percent of any façade. 4. Painted metal panel siding is allowed without limitation on a rear façade of a building when the façade is not visible from a right-of-way, parkland, greenway, or any residential area. Page 24 of 26 5. Galvanized steel and painted steel are allowed on doors, including roll-up doors. 6. Metal, standing seam metal, architectural metal or steel may be used as a roof and or canopy/awnings with no limitation on percentage. d. When determining the area of a façade, doors, windows, and other openings are included and roof area is not included. e. Existing buildings may continue to utilize materials other than those listed provided that any material replacement is for maintenance purposes only and the existing material is continued. Any material change or replacement of more than ten (10) percent of the total area of a façade, including on a cumulative basis, shall require that all building materials and color be brought into compliance on that façade. f. All architectural submittals shall provide elevation drawings for each façade and a material legend (see sample below) for each façade. SAMPLE LEGEND USE OF MATERIALS ON FAÇADE 'A' Total Square Footage of Façade 'A': 10,000 s.f. Material Area in Square Feet Percent of Overall Façade Stucco 2,000 s.f. 20% Brick 5,000 s.f. 50% Doors and Windows 3,000 s.f. 30% 5. Building Colors. a. All building façades and roofs shall consist of only colors from the color palette approved by the City Council as amended by the Design Review Board and maintained in the Office of the Administrator. All other colors shall be considered accent colors and may be used on no more than ten (10) percent of the façade on which the accent color is applied. c. When applying brick, colors normally found in manufactured fired brick are permitted. All colors of natural stone are permitted. d. Building and roof color requirements apply to all new buildings, redeveloped buildings, and façade work. Color samples shall be submitted for approval to the Office of the Administrator. e. Existing buildings may continue to utilize colors that are not from the approved color palette provided that repainting is done for maintenance purposes only and Page 25 of 26 the existing color is continued. Any color change on existing buildings shall be brought into compliance with this ordinance and color samples shall be submitted as provided herein. D. Alternative Compliance Permitted. The Design Review Board (DRB) may authorize variation to the overall requirements of the Non-Residential Architectural Standards through application from a licensed architect for an alternative compliance approval that would allow innovative or visually interesting design or to address unique circumstances not otherwise permitted through strict adherence to this Section. Such requests must show reasonable evidence that the purposes of the requirements as set forth in this Section were maintained and the additional design flexibility afforded does not provide a means to permit design of lesser quality. E. Waivers and Appeals. The Design Review Board (DRB) shall review requests for deviations from the Non- Residential Architectural Standards. The DRB shall approve waivers or appeals found meeting the intent and general purposes of the standards as it is recognized that unique and unforeseen design circumstances exist in application of the standards. Financial hardship may not be considered in the review or determination of a waiver proposal. DRB may review and grant approval of the following: 1. Substitutions of building materials if the applicant shows that: a. The building material is a new or innovative material manufactured that has not been previously available to the market or the material is not listed as an allowed or prohibited material herein; or b. The material is similar and comparable in quality and appearance to the materials allowed in this Section 12-7.10; or c. The material is an integral part of a themed building (example 50's diner in chrome). 2. Alternate colors or materials on each façade if the applicant shows that: a. The applicant is a franchised and/or chain commercial use to be developed as a single detached building (not integrated into a multi-tenant building); and b. The proposed colors/materials are part of its corporate branding; and c. The applicant provides all of the alternative color/materials schemes the chain or franchise has used. 3. Alternative materials on façade work that does not involve an expansion of an existing building as defined in Chapter 12, Article 9 of the UDO or constitute redevelopment if the applicant shows that: a. The materials allowed in this Section cannot be utilized without a structural alteration(s) to the existing building; and b. A licensed professional engineer or architect verifies in writing that a structural alteration is required to apply the permitted façade materials to the building. Page 26 of 26 c. The DRB may grant a variance of up to one hundred (100) percent from the façade articulation or roofline standards herein if the applicant shows that it is not financially or structurally feasible. 4. Alternatives to the options for required screening of mechanical equipment. 5. Alternatives to the design elements available to provide architectural relief. 6. An increase in the percentage of accent colors that may be used on a façade, not to exceed a total of twenty (20) percent of the façade. 7. Relief from the building orientation and access for buildings in MU Mixed-Use districts when physical characteristics limit the site or provide unique orientation and access opportunities. 8. Reduction in the percentage of required building transparency for the rehabilitation or expansion of existing buildings in MU Mixed-Use districts if it can be proven by the applicant that inherent site characteristics constrain the proposed project from meeting the transparency requirement. F. Submittal Requirements. When the non-residential architectural standards are applicable, submitted building elevations shall include the following: 1. Scaled building elevations for each façade, depicting the following: a. Required architectural relief and other design elements; and b. Location of building materials. 2. Accurate building footprint(s) and general orientation of the building façades in relation to adjacent rights-of-way, public ways, and properties; 3. Sample building materials and color details as required by the Administrator; and 4. Table of vertical square footage and percentage of building materials for each façade. City Hall 1101 Texas Ave College Station, TX 77840 College Station, TX Legislation Details (With Text) File #: Version:115-0246 Name:Appointment of Joint Annexation Task Force Members and Chair Status:Type:Subcommittee Appointments Agenda Ready File created:In control:5/11/2015 City Council Regular On agenda:Final action:5/28/2015 Title:Presentation, possible action, and discussion regarding the appointment of three City Council members and a Chair to the Joint Annexation Task Force. Sponsors:Lance Simms Indexes: Code sections: Attachments: Action ByDate Action ResultVer. Presentation, possible action, and discussion regarding the appointment of three City Council members and a Chair to the Joint Annexation Task Force. Relationship to Strategic Goals: ·Good Governance ·Financially Sustainable City ·Core Services and Infrastructure ·Neighborhood Integrity ·Diverse Growing Economy ·Improving Mobility ·Sustainable City Recommendation(s): Staff recommends that the City Council appoint three members and a Chair to the Joint Annexation Task Force. Summary:Consistent with the Resolution on the consent agenda,Council needs to appoint three members to the Joint Annexation Task Force,one of which will serve as Chair.The three appointed Council members will serve with three Planning and Zoning Commissioners to update the timing, priorities, and phasing of future annexations. Budget & Financial Summary: N/A Attachments: N/A College Station, TX Printed on 5/22/2015Page 1 of 1 powered by Legistar™