TNMP-CN050810STATE OF TEXAS §
§ LICENSE AGREEMENT
COUNTY OF DALLAS §
This Agreement ( "AGREEMENT ") is made by and between the 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 Texas New Mexico
Power Company (TNMP), a Texas Corporation ( "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 construct, maintain and
operate pertinent facilities for purposes of providing electric and streetlight services
( "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, to construct, maintain and operate pertinent facilities ( "PERMITTED
FACILITIES ") within CITY right -of -way as shown in Exhibit "A" attached hereto and
incorporated herein for all purposes; exact location and description as shown on the plans on file
within the City Engineer's office, which is also incorporated herein.
2. Term. This agreement shall remain in force so long as the LICENSEE is in compliance
with the City of Coppell Right of way Management Ordinance #2001 -944 or unless terminated in
accordance with Section 15.
3. Fee. (A.) In consideration for the rights and privileges agreed to under this
AGREEMENT, LICENSEE agrees to pay to the CITY each calendar quarter a sum (the "rate")
equal to four (4) percent of the total gross receipts received from the retail sale of electric power
and energy by TNMP within the corporate limits of CITY.
LICENSE AGREEMENT
Page 1
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 or relocate 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
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 constructed, maintained and
operated 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.
LICENSE AGREEMENT
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(C) CITY reserves the right to make and enforce reasonable regulations concerning
the construction, maintenance and operation 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.
7. Licensee Inspection. Licensee agrees to abide and conform to the requirements of the
City of Coppell Right of way Management Ordinance #2001 -944, as amended and codified.
Licensee further agrees that all improvements shall be constructed, maintained and operated in
accordance with the City of Coppell Right of way Management Ordinance #2001 -944.
8. 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 MIMMUM
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.
9. 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.
10. 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 expiration of this Agreement or upon termination in accordance with Section 15
of the agreement, whichever event first occurs.
11. 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.
LICENSE AGREEMENT
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12. 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.
13. 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.
14. 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
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.
15. Termination. This AGREEMENT may be terminated in any of the following ways:
a. Written agreement of both parties;
b. Expiration of Agreement;
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.
LICENSE AGREEMENT
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16. 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:
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:
17. 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
party.
18. 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.
19. 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.
20. 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.
LICENSE AGREEMENT
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21. Recitals. The recitals to this Agreement are incorporated herein by reference.
22. 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 this - i-•day of , 2005.
CITY OF COPPELL, TEXAS
By: s`
y INT WITT, CITY MANAGER
ATTEST:
L BBY B L, CITY SECRETARY
EXECUTED this day of 2005.
TEXAS NEW MEXICO POWER COMPANY
LOSE
Name:
Title:
LICENSE AGREEMENT
Page 6
LICENSEE'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the _ day of , 2005,
by
COMPANY, on behalf of said district.
LICENSE AGREEMENT
Page 7
of the TEXAS NEW MEXICO POWER
Notary Public, State of Texas
My Commission expires:
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the /0`0�-day of t '(c-
2005 , by Jim Witt , City Manager of the City of Co
ppell, Texas, a Texas municipali , on behalf of
said municipality.
My Commission Expires:
LICENSE AGREEMENT
Page 8
Notary Pu , 1 , State of Texas
LIBBY BALL
Notary Public
State of Texas
Comm. Expires 06 -11 -2008
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