CoppellISD-AG010710T H E • C 1 T Y • O F
ITEM CAPTION:
Consider approval of a License Agreement between the City of Coppell and Coppell Independent School
District for the use of right -of -way to have telecommunication lines installed and related appurtenances; and
authorizing the City Manager to sign.
SUBMITT BY: Kenneth M. Griffin, P.
TI E: Dir. o g /Public Works
STAFF COMMENTS:
APPROVED
CITY COUNCIL
DATE � -_-- --
This license agreement will permit the Coppell Independent School District (CISD) to install a private
telecommunication system in the City's right -of -way. On April 10, 2001, City Council approved a variance to
the City of Coppell Subdivision Ordinance to allow the CISD to install the fibe telecommunication system
overhead utilizing the existing TXU power poles. In areas where there is no exi ting TXU power poles, the
fiber telecommunication system will be placed underground. Also at the April 10, 2001 Council meeting, the
City of Coppell approved an Interim Right -of -way Use Agreement to allow the C D to utilize the right -of-
y for the telecommunication lines.
The item before Council this evening is the actual License Agreement that sets forth t e terms of the use of
our right -of -way by the CISD. As part of the License Agreement, a fee is assessed base on the linear foot of
fiber optic cable within the public right -of -way of the City. The City may, in lieu of theee, accept in kind
services or equipment at the election of the City Manager.
Attached to this agenda item is a letter from the CISD requesting a waiver for the right -of -way fees associated
with this License Agreement. Also, attached is a letter from TXU that would permit the CISD to lease or
sublet a portion of the fiber to the City of Coppell for the furtherance of the City's governmental functions.
City Attorney, Bob Hagar will be available to answer any questions regarding this agreement.
BUDGET AMT. $ AMT. EST. $
FINANCIAL COMMENTS: \4
DIR. INITIALS: ' <7 FIN. REVIEW
Agenda Request Form - Revised 5100
+\ -BID $
CITY MANAGER REVIEW:
Document Name: #engl
STATE OF TEXAS §
§ LICENSE AGREEMENT
COUNTY OF DALLAS §
This Agreement ( "AGREEMENT ") is made by and between City of Coppell ( "CITY "), a
home rule municipal corporation organized under the laws of the State of Texas, and acting by
and through its City Manager, its duly authorized agent, and the Coppell Independent School
District ( "LICENSEE "), acting by and through its authorized representative.
WITNESSETH:
WHEREAS, CITY owns the right -of -way depicted in Exhibit "A" attached hereto and
incorporated herein for all purposes; and
WHEREAS, LICENSEE requests the consent of the CITY, to install or cause to be
installed a fiber optic telecommunications cable and innerducts ( "FACILITIES ") within City
right -of -way as shown in Exhibit "A" attached hereto and incorporated herein for all purposes;
and
WHEREAS, LICENSEE has requested the CITY allow the use and occupancy of the
right -of -way for LICENSEE's FACILITIES;
NOW THEREFORE, in consideration of the covenants contained herein and other
valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Purpose. CITY hereby grants LICENSEE a license, pursuant to the terms of this
AGREEMENT, for the purpose of installing a fiber optic telecommunications cable and
innerducts ( "PERMITTED FACILITIES ") within CITY right -of -way being more particularly
shown on the concept plans on the Exhibit "A" attached hereto and incorporated herein for all
purposes; that exact location and descriptions are contained in the plans on file within the City
Engineers office, which are also incorporated herein.
2. Term. The term of this AGREEMENT shall be annual with an annual renewal, subject,
however, to termination by the CITY as provided herein.
3. Fee. (A.) In consideration for the rights and privileges agreed to under this
AGREEMENT, LICENSEE agrees to pay CITY each year a sum (the "rate ") based on lineal
foot of fiber optic cable installed within the Public Right -of -Way of the CITY, including street
crossings, subject to the following rate adjustments as depicted in the attached Exhibit `B ". The
rate set forth above shall be subject to adjustment annually to reflect any increase in the CPI.
"CPI" as used herein shall mean the revised Consumer Price Index for all Urban Consumers
(CPI -U), all items, published by the United States Department of Labor, Bureau of Labor
Statistics 1982 -1984 = 100. In the event the U.S. Department of Labor, Bureau of Labor
Statistics ceases to publish the CPI, the CITY and LICENSEE agree to substitute another equally
LICENSE AGREEMENT
Page 1 41709
authoritative measure of change in the purchasing power of the U.S. dollar as may be then
available so as to carry out the intent of this provision.
The rate as provided herein per lineal foot shall remain effective for a period of one year from
date of the commencement of operations under this AGREEMENT ( "COMMENCEMENT
DATE "). On each anniversary of the COMMENCEMENT DATE, the rate shall be adjusted as
above mentioned by the same percentage as there is a percentage increase, if any, between the
CPI as published either for the month preceding the COMMENCEMENT DATE or the most
recent such CPI, whichever is later, and that published for the month immediately preceding the
current anniversary of the COMMENCEMENT DATE. Such fee shall be due and payable on or
before the beginning of the fiscal year commencing October 1st of each year. Whenever an
application is approved prior to the end of the current fiscal year, said fee shall be pro -rated for
the remainder of the fiscal year and shall be payable upon approval of application. The City
may, in lieu of a fee, accept in kind services or equipment at the election of the City Manager.
B. In the event that LICENSEE shall become a certified telecommunications provider under
Section 283 of the TEXAS LOCAL GOVERNMENT CODE, the fee established by the Texas Public
Utility Commission shall govern and the above stated provisions in Section 3 herein shall no
longer apply.
4. Non - exclusive. This AGREEMENT is nonexclusive and is subject to any existing
utility, drainage or communications facility located in, on, under or upon the right -of -way or
property owned by CITY, any utility or communication company, public or private, to all vested
rights presently owned any utility or communication company, public or private for the use of
the CITY right -of -way for facilities presently located within the boundaries of the right -of -way
and to any existing lease, license, or other interest in the right -of -way granted by CITY to any
individual, corporation or other entity, public or private; further, the CITY reserves the right to
locate or use said right -of -way for any public purpose, including but not limited to traffic control
devices and other appropriate public purposes; in the event of any such use by the City which
would result in relocating the use granted herein, LICENSEE shall remove such use at its sole
expense.
5. Environmental Protection. LICENSEE shall not use or permit the use of the property
for any purpose that may be in violation of any laws pertaining to the health of the environment,
including without limitation, the comprehensive environmental response, compensation and
liability act of 1980 ( "CERCLA "), the resource conservation and recovery act of 1976
( "RCRA "), the Texas Water Code and the Texas Solid Waste Disposal Act. LICENSEE
warrants that the permitted use of the property will not result in the disposal or other release of
any hazardous substance or solid waste on or to the property and that it will take all steps
necessary to ensure that no such hazardous substance or solid waste will ever be discharged onto
the property or adjoining property by LICENSEE. The terms "hazardous substance" and
"release" shall have the meaning specified in CERCLA and the term "solid waste" and "disposal
(or dispose)" shall have the meaning specified in the RCRA; provided, however, that in the event
either CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby,
such broader meaning shall apply subsequent to the effective date of such amendment; and
provided further, to the extent that the laws of the State of Texas establish a meaning for
LICENSE AGREEMENT
Page 2 41709
hazardous substance, release, solid waste, or disposal which is broader than that specified in the
CERCLA or RCRA, such broader meaning shall apply. LICENSEE shall indemnify and hold
CITY harmless against all costs, environmental clean up to the property and surrounding CITY
property resulting from LICENSEE's use of the property under this AGREEMENT.
6. Use of the public right -of -way.
(A) LICENSEE's PERMITTED FACILITIES shall be installed, operated and
maintained in such manner as will, consistent with reasonable necessity, least interfere
with other public uses of the right -of -way, and in accordance with plans and
specifications submitted to and approved by the Engineering Department of the CITY.
No construction shall commence until such plans and specifications have been approved
and a permit has been issued by the Engineering Department of the CITY.
(B) Except in cases of emergency, LICENSEE shall give at least forty -eight (48)
hours notice of its intent to excavate or disturb the surface of any right -of -way to the
Director of Public Works of the CITY. After such excavation or disturbance, the
LICENSEE shall, with due diligence and dispatch, place the right -of -way in a condition
acceptable to the CITY. LICENSEE shall notify CITY the next business day of any
emergency work undertaken.
(C) CITY reserves the right to make and enforce reasonable regulations concerning
the construction, operation, and maintenance of LICENSEE's PERMITTED
FACILITIES located along, across, over, or under the right -of -way and to reasonably
designate where the PERMITTED FACILITIES shall be placed.
(D) All improvements permitted herein shall be placed underground in accordance
with the City Right -of -way Management Ordinance.
7. Minimum Specifications. The PERMITTED FACILITIES shall conform to the
following minimum specifications ( "MINIMUM SPECIFICATIONS "):
(A) The depth of conduit, measured from the top of the conduit to the surface of
ground shall be a minimum depth of soil of sixty (60) inches and at a ditch crossing, a
minimum depth of sixty (60) inches.
(B) Within the street right -of -way, with the exception of road crossings and
driveways, a four (4) inch PVC conduit, with two (2) innerducts, encased with a four (4)
inch cap of concrete shall be used. A three -fourth (3/4) inch fiber cable shall then be
pulled through the conduit in place.
(C) Under all road crossings and driveways a four (4) inch, black steel pipe will be
installed by jacking or dry boring, maintaining a depth of forty -eight (48) inches below
the surface of the road.
LICENSE AGREEMENT
Page 3
41709
(D) Trenching shall be promptly backfilled with earth and tamped with a mechanical
tamper at six (6) inch lifts, so that the earth is restored to original grade to assure no
hazard to vehicular, animal, or pedestrian traffic. All open trenches will be properly
guarded or barricaded to prevent damage or injury.
(E) All cable, where practical, shall be located to cross roadbed at approximately right
angles thereto. No cable shall be placed at any culvert within five (5) feet of the closed
point of same.
(F) In areas of potential erosion the areas are to be sodded and watered for erosion
control.
(G) Operations along roadways, walkways, and sidewalks shall be kept clear of
excavated material or other obstructions at all times. Barricades, warning signs and
lights, and flagmen, when necessary, shall be provided by the contractor or LICENSEE.
One half of the traveled portion of the road must be open at all times.
(H) Damage to banks, ditches, roads, fences, lawns, shrubbery, drives, and any other
property caused from the equipment and installation of the communication system shall
be immediately repaired to the satisfaction of the public authorities having jurisdiction
over the right -of -way involved, at the cost of the LICENSEE.
(G) Upon completion of the installation of the utility, "As Built" or "Record
Drawings" should be provided as per the CITY's Subdivision Ordinance Section XV.
8. Licensee Inspection. Licensee agrees to abide and conform to the requirements of the
Coppell Right -of -Way Management Ordinance, number 2001 -944, as amended and codified.
9. Maintenance. The LICENSEE, or its assignee, agrees to maintain the PERMITTED
FACILITIES to the MINIMUM SPECIFICATIONS for the duration of this AGREEMENT. In
the event that the PERMITTED FACILITIES are not maintained to the MINIMUM
SPECIFICATIONS, CITY will notify LICENSEE in writing of such failure in sufficient detail
so as to apprise LICENSEE. LICENSEE shall have fourteen (14) days to bring the
PERMITTED FACILITIES into compliance with the MINIMUM SPECIFICATIONS.
However, if after fourteen (14) days the PERMITTED FACILITIES have not been brought up to
the MINIMUM SPECIFICATIONS, the CITY may maintain or cause to be maintained the
PERMITTED FACILITIES and assess all costs incurred to CITY for such maintenance against
LICENSEE.
10. Mechanic's liens not permitted/Bond Requirement. LICENSEE shall be required to
provide a Performance Bond in an amount sufficient to fully pay all labor, contractors,
subcontractors and materials used in, on or about the property and will not permit or suffer any
mechanic's or material man's liens of any nature be affixed against the property by reason of any
work done or materials furnished to the property at LICENSEE's instance or request.
LICENSE AGREEMENT
Page 4 41709
11. Future City use. This AGREEMENT is made expressly subject and subordinate to the
right of CITY to use the property for any public purpose whatsoever. In the event that CITY
shall, at any time subsequent to the date of this AGREEMENT, at its sole discretion, determine
that the relocation or removal of the PERMITTED FACILITIES shall be necessary or
convenient for CITY's use of the property, LICENSEE shall at its sole cost and expense make or
cause to be made such modifications or relocate said PERMITTED FACILITIES so as not to
interfere with the CITY's or CITY's assigns use of the property. A minimum of thirty (30) days
written notice for the exercise of the above action shall be given by CITY and LICENSEE shall
promptly commence to make the required changes and complete them as quickly as possible or
reimburse CITY for the cost of making such required changes.
12. Duration of License. This AGREEMENT shall terminate and be of no further force and
effect in the event LICENSEE shall discontinue or abandon the use of the PERMITTED
FACILITIES or in the event LICENSEE shall remove the PERMITTED FACILITIES from the
property or upon termination by CITY whichever event first occurs.
13. Compliance with laws. LICENSEE agrees to abide by and be governed by all laws,
ordinances and regulations of any and all governmental entities having jurisdiction over the
LICENSEE.
14. Indemnification. LICENSEE shall defend, protect and keep CITY forever harmless and
indemnified against and from any penalty, or any damage, or charge, imposed for any violation
of any law, ordinance, rule or regulation arising out of the use of the property by the LICENSEE,
whether occasioned by the neglect of LICENSEE, its employees, officers, agents, contractors or
assigns or those holding under LICENSEE. LICENSEE shall at all times defend, protect and
indemnify and it is the intention of the parties hereto that LICENSEE hold CITY harmless
against and from any and all loss, cost, damage, or expense, including attorney's fee, arising out
of or from any accident or other occurrence on or about the property causing personal injury,
death or property damage resulting from use of property by LICENSEE, its agents, employees,
customers and invitees, except when caused by the negligence or willful misconduct of CITY, its
officers, employees or agents, and only then to the extent of the proportion of any fault
determined against CITY for its willful misconduct. LICENSEE shall at all times defend,
protect, indemnify and hold CITY harmless against and from any and all loss, cost, damage, or
expense, including attorney's fees arising out of or from any and all claims or causes of action
resulting from any failure of LICENSEE, its officers, employees, agents, contractors or assigns
in any respect to comply with and perform all the requirements and provisions hereof.
15. Action upon termination. At such time as this AGREEMENT may be terminated or
canceled for any reason whatsoever, LICENSEE, upon request by CITY, shall either (i) remove
all PERMITTED FACILITIES and appurtenances owned by it, situated in, under or attached to
the CITY and shall restore such property to substantially the condition of the property prior to
LICENSEE's encroachment at LICENSEE's sole expense; or (ii) abandon all PERMITTED
FACILITIES and appurtenances in place.
16. Assignment. LICENSEE shall not assign or transfer its rights under this AGREEMENT
to any other person or entity without the prior written consent of CITY, which consent will not
LICENSE AGREEMENT
Page 5 41709
be unreasonably withheld. Any assignment agreement shall be in writing and a duly executed
copy of same shall be filed with the CITY's City Engineer.
17. Termination. This AGREEMENT may be terminated in any of the following ways:
a. Written agreement of both parties;
b. By CITY giving LICENSEE thirty (30) days prior written notice;
C. By CITY upon failure of LICENSEE to perform its obligations as set forth in this
Agreement, if LICENSEE has not cured any failure within thirty (30) days of
written notification by CITY of such failure.
18. Notice. When notice is permitted or required by this Agreement, it shall be in writing
and shall be deemed delivered when delivered in person or when placed, postage prepaid in the
United States mail, certified return receipt requested, and addressed to the parties at the address
set forth below. Either party may designate from time to time another and different address for
receipt of notice by giving notice of such change or address.
TO THE CITY:
Jim Witt, City Manager
City of Coppell
P.O. Box 478
255 Parkway Boulevard
Coppell, Texas 75019
TO LICENSEE:
Wilburn O. Echols, Jr., Superintendent
Coppell Independent School District
200 S. Denton Tap Road
Coppell, Texas 75019
WITH A COPY TO:
Robert E. Hager, City Attorney
NICHOLS, JACKSON, DILLARD,
HAGER & SMITH, LLP
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
WITH A COPY TO:
Robert E. Luna
4411 N. Central Expressway
Dallas, Texas 75205
19. Attorney's fees. Any signatory to this AGREEMENT, who is the prevailing party in any
legal proceeding against any other signatory brought under or with relation to this Agreement
shall be entitled to recover court cost and reasonable attorney's fees from the non - prevailing
Ply•
20. Governing law. This AGREEMENT is governed by the laws of the State of Texas; and
venue for any action shall be in Dallas County, Texas.
21. Binding effect. This AGREEMENT shall be binding upon and inure to the benefit of the
executing parties and their respective heirs, personal representatives, successors and assigns.
LICENSE AGREEMENT
Page 6 41709
22. Entire Agreement. This AGREEMENT embodies the entire agreement between the
parties and supersedes all prior agreements, understandings, if any, relating to the property and
the matters addressed herein and may be amended or supplemented only by written instrument
executed by the party against whom enforcement is sought.
23. Recitals. The recitals to this Agreement are incorporated herein by reference.
24. Legal construction. The provisions of this AGREEMENT are hereby declared
covenants running with the property and are fully binding on all successors, heirs, and assigns of
LICENSEE who acquires any right, title, or interest in or to the property or any part thereof.
Any person who acquires any right, title, or interest in or to the property, or any part hereof,
thereby agrees and covenants to abide by and fully perform the provisions of this AGREEMENT
with respect to the right, title or interest in such property.
EXECUTED thisHay of , 2001.
CITY OF COPPELL, TEXAS
By:
T, CITY MANAGER
ATTEST:
vwo
EXECUTED this CtZraday of , 2001.
COPPELL
INDEPENDENT SCHOOL DISTRICT
By:
I UGC. �C�- �►dLt1-
Name: Wilburn O. Echols, Jr.
Title: Superintendent
LICENSE AGREEMENT
Page 7
41709
LICENSEE'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the a3 day of , 2001,
by Wilburn O. Echols, Jr., Superintendent of the Coppell Independent School District, on behalf
of said district.
� M LISA A GANZ
NOTARY PUBLIC
State of Texas
Cam. OV. W25.2=
LICENSE AGREEMENT
Page 8
(-Ji-u ha"Irv�
Notary Public, State of Te s
My Commission expires: (alzE C3
41709
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the ��day of ,
2001, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of
said municipality.
Notary Public, St of Texas
My Commission Expires:
11111111111/1
LICENSE AGREEMENT
Page 9 41709
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EXHIBIT "B"
Length of conduit
70812 L.F. (5262 feet underground / 65550 feet aerial)
Conduit Size 4" / Fiber size 0.471 inches
$0.50 / ft. / 1" of conduit
($ 0.50 / ft / 1" of conduit) (70812 ft) (4" of conduit) = $141,624
Total = $141,624
ISD
COPPELL INDEPENDENT SCHOOL DISTRICT
200 S. DENTON TAP ROAD • COPPELL, TX 75019 • 972.471.1111 • www.coppellisd.com
Mr. Jim Witt
City Manager
City of Coppell
P. O. Box 478
Coppell, TX 75019
Dear Jim:
P
JUN 2 6 2001 m �
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k� l�
Or PPE LL
WILBURN 0. EcHoLs, JR.
Superintendent
VONITA WHITE
Assistant Superintendent
RALPH SEELEY
Assistant Superintendent
This letter is to formally request a waiver for all right -of -way fees associated with the
installation and usage of aerial and buried fiber throughout the City of Coppell for
Coppell Independent School District. Capco Communications should start the
installation of aerial and buried fiber at specific locations during the month of July. Once
the installation process has been completed, we will have fiber that will exist within the
right -of -way easements throughout the City of Coppell.
As a school district, we are constantly low on funds and at this time would be unable to
afford the right -of -way fees that would be associated with having the fiber within these
easements. We would greatly appreciate anything that the City can do to help facilitate
the installation and usage of the new network that we are trying to implement.
If you have any questions or concerns, please do not hesitate to contact me.
S ely,
i F Randy u rall
Executive Director of Technology
Coppell Independent School District
/mm
µ AIML
TXU
Business Services
I Bryan Street
Dallas,TX 75201 -3411
June 13, 2001
Ms. Midge Chapman
Director Technical Operations
Capco Communications, Inc.
101 -C North Greenville Avenue #261
Allen, Texas 75002
re: Pole Access for Coppell Independent School District
Dear Midge:
I write on TXU Electric's behalf in response to your request for access to TXU
Electric poles on behalf of the Coppell Independent School District (District). You
have made TXU Electric aware that the District's desire is to own its fiber optic cable
equipment and facilities; therefore, TXU is willing to enter into a license agreement for
pole access with the District subject to the following conditions:
a) The District will only use its equipment or facilities (collectively, the
"Equipment ") attached to TXU Electric poles in furtherance of
educational purposes, and at no time for commercial or profit - making
purposes; and
b) The District shall have no right to lease, sublet, or otherwise allow any
third party to use any portion of the Equipment; "provided, however, that,
subject to their agreement on such additional terms as may be appropriate,
TXU Electric and the District contemplate that the District will be
permitted to lease or sublet a portion of the fiber to the City of Coppell,
solely in furtherance of the City's governmental functions, subject to and
under the terms of a separate agreement between the District and the
City."
C) The District will be responsible for payment of all necessary inspection
and make -ready work to be done by TXU Electric in response to requests
made by the District, subject to the terms and conditions of a license
agreement to be executed.
d) The District will agree to an initial attachment rate of $20.38 per
attachment per year payable in advance in January each year.
Rates for subsequent years will be outlined in the license agreement
to be executed.
If the District is agreeable to the conditions and requirements specified above,
please have appropriate representative of the District sign and return the acknowledgment
below. Per your request, a draft copy of TXU Electric's Distribution Pole License
Agreement will be forwarded to you by e -mail for review.
Respectively,
ckie L. Black
Senior Contracts Representative
1601 Bryan Street, Suite 24090
Dallas, Texas 75201
214 - 812 -3777
Acknowledgment:
COPPELL INDEPENDENT SCHOOL DISTRICT
Signature
Name
Title