2016-036S: \Legal \Our Documents \Ordinances \16 \County ICA Ordinance.dou
ORDINANCE NO 2016 -036
AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR
AUTHORIZATION OF AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE
CITY OF DENTON, TEXAS ( "CITY ") AND DENTON COUNTY, TEXAS ( "COUNTY ")
REGARDING THE COUNTY'S USE OF THE CITY'S DARK FIBER FACILITIES; AND
PROVIDING FOR AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by
reference into the body of this ordinance as if fully set forth herein.
SECTION 2. The Mayor, or his designee, is hereby authorized to execute the Interlocal
Cooperation Agreement, attached hereto and incorporated herein, and to carry out the duties and
responsibilities of the City under the Agreement, including the expenditure of funds as provided
in the Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the m day of ,�, _.._, 2016.
i
M
CHRIS WATTS...... .
....___ .. ... . .
......__.
, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
mm
APPRMF' AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY....._ .......................
DENTON COUNTY
COMMISSIONERS COURT
Approval of Interlocal Cooperation Agreement for the lease of dark fiber optic cable with the City of
Denton in the amount of $1,870.00 per month with funding to come from Telephone Service, Auditor
Line Item #01- 6211- 50 -95, and any appropriate action.
Motionby, �ku\\ Seconded by
CountvJudtr Yes 44
Mary Horn Abstain _
Other Action: Puled from Consent_
BY+t R114.It f' THE COMMISSIONERS
Prosidin�g /t�Pb'ir�s�s° p
APW&) ED AS ro
No Action _ Postponed
ATTEST:
WYMWT MWy t� .
+ r1% JuliLuke,CountyClerk
Mnd Exofficio Clerk of the
on"'issioners Courtof
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galon Can nty,'rexas
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P0101 1111 I" ,
Denton County Page 3 of 3 Printed on 112112016
154 of 290
RECEIVED JAN 2 8 1.016
No ,......,.,.,
Absent
misslonerPetNoI
Commissioner Pct No2
0
Yes,,,,,,
Co
Hugh
Abstain
n Mardsant
Abstain
.....
NoNo
_ .................
Absen t
Absent
Commissioner Pct No 3
Yes
Commis sioner Pd No 4
Yes
Bob bieJ.Mitdsell
Abstain _
Andy Eads
Abstain,,,,,,,,,,_,
No
1140
...................
Absen t _
Absent
Motion Carried_ � .WW
Other Action: Puled from Consent_
BY+t R114.It f' THE COMMISSIONERS
Prosidin�g /t�Pb'ir�s�s° p
APW&) ED AS ro
No Action _ Postponed
ATTEST:
WYMWT MWy t� .
+ r1% JuliLuke,CountyClerk
Mnd Exofficio Clerk of the
on"'issioners Courtof
M
galon Can nty,'rexas
M � �
W +W
W My
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P0101 1111 I" ,
Denton County Page 3 of 3 Printed on 112112016
154 of 290
RECEIVED JAN 2 8 1.016
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ARTICLE I
INCORPORATION OF PREAMBLES
The preamble to this Agreement is wholly incorporated into this Agreement and the
recitations contained therein are found and determined to be true and correct.
ARTICLE 11
SCOPE OF AGREEMENT
A. COUNTY intends iocontinue utilizing the leased dark fiber optic cable owned bvand
provided by the CITY, which is contained iu Paragraph ILC.below. The COUNTY will own and
provide all of the electronic equipment needed to implernent its wide-area network at its sole cost
and expense.
B. CITY and COUNTY agree that CITY may lease its dark fiber optic excess capacity to
others, and that this Agreement is non-exclusive bunature.
C. The leased dark fiber optic cable owned by the CITY, the "fiber pair" as referred to in this
Agreement, consists of the fb)|ovvioO specific COUNTY xbco ocoLorod on the County Courts
Building at 1450 East McKinney Street. The dedicated fiber pairs are to originate from the County
Courts Building (the "Hub Facility") to:
D the Denton Museum uL3l7 West Mulberry;
2) the Denton County Courthouse outhe Square at|l0West Hickory Street;
3) the Joseph Carroll - Denton County Office Building a14Ol West Hickory Street; and
4) the T)P8 Office a1820N Loop 288.
D. The CITY shall furnish o1 the CD]!"s own cost and expense, except aootherwise provided
herein, all labor, services, and material for the creation, construction, and 000zyketiou) of the fiber
pair and all additional lines emanating therefrom as provided within this Agreement.
E. The CITY shall furnish atCDT'oown cost and expense, except as otherwise provided
herein, all labor, services, and material relating ho the termination o[ the fiber optic cabling with
"ST^" style uonueoiocm into patch panels at each of the C()lJNTl, sites. The exact point of
demarcation oc placement of the patch panel u1each of the COD]NTl, sites nbnU be Mutually
determined by the CITY and COUNTY, which determination shall be evidenced by a letter signed
hy authorized representatives of the CITY and COUNTY.
E COUNTY shall furnish, atC0UNTY'nown cost and expense, unless otherwise provided
herein, all labor, services, and material necessary for the installation and connection of COUNTY's
o/erbouico equipment /no( to include ^`87`^ connectors) 0n the pu1nb panel at the point of
demarcation a1 each o[ the COUNTY odca.
G. COUNTY shall promptly provide the CITY with any additional instructions, hv means o[
drawings orhy other written documents, uo the CITY may require in order to be able toproceed
with the work ao provided for iu this Agreement. All such drawings and written documents shall
bo consistent with, and reasonably inferable from this Agreement.
B. CITY and COUNTY agree thutheCD-Y`ssomke1oCOONTY is limited tnupoint-to-
point dark fiber connectivity. CITY and COUNTY further agree that [V{JNTY`n use o[ the fibcc
pair shall be limited to COUNTY personnel; that the fiber pair leased to COUNTY shall transi-nit
data only; and, that COUNTY will not offer access tothe fiherpair to the public.
A. With respect to the fiber pairs referenced in Article D. C. 1-3, this Agreement shall be
effective asnrOctober |, 2015 and shall continue in force and effect for aterm of five (5) ycum
from the effective date. The pmtico shall he deemed to have elected to ceoep/ this /\grccnuoo1
annually on the anniversary of the effective date of this Agreement unless the parties each elect to
terminate this Agreement, as permitted under the provisions of Article IV hereunder. lfunyfaoi|)iy
is added during the \cmo of this Agreement it is expressly understood that the tcrnu of this
Agreement shall apply.
B. With respect to the fiber pair referenced in Article OLC.4`this Agreement shall hueffective
as of October 1, 2015 and shall continue in force and effect month-to-month. The parties shall bc
doonood to have elected to n:oep/ this Agreement monthly on the l" of each 000u1h un|cyo the
parties each elect 10 Lcrrulou10 this Agreement, as permitted under the provisions of Article l\/
becouodoc If any facility is added during the term of this /\gre00000i it is expressly understood
that the term of this Agreement shall apply.
ARTICLE IV
TERMINATION OF AGREEMENT
D. Either party hereto may terminate this Agreement for cause by reason ofthe other party's
material breach or default iuthe performance of this Agreement. The party seeking to terminate
this Agreement under this provision shall provide the defaulting party written notice, specifically
ideudfviogthe breach nrdcfaobconzp)uioed of, vvbiobonduenbaUprovide the defaulting party u
yodod'of not less than thirty (30) days from the date of receipt of such notice iu which to cure such
breach or default. In the uvcu1 such breach Vr default io not fully cured within the time period
specified, then the party seeking to tscouiom1c this Agrecuzoo1 oba8 provide the defaulting party
with further vvrit1ou uoboo expressly specifying that this Agreement will be terminated if the
hcuoch or default is not `pboUy cured vvidbiu not less than ten (lO) days oltcr the receipt of the
further written notice by the alleged defaulting party. In the event that the defaulting party fails to
cure the breach or default complained of, within the time specified, then this Agreement shall be
terminated, and the party terminating this Agreement may seek appropriate legal relief.
C. At the time of expiration ortermination of this Agreement, the no|a1iouobip between the
CITY and COUNTY regarding the leased fiber pair shall immediately cease, and the CITY shall
tbocoaftoc remove all fiber optic connections at the COUNTY sites in ucare[b), prudent manner.
The timeline for removal will be determined by the City and be performed during normal business
hours.
D. C(}DNT,/ may terminate the use of fiber pair rc{er000cd in Article D.C4. upon fi0eoo
(15) days written notice to the CITY.
ARTICLE V
CONSIDERATION TOBE PAID Bl, COUNTY TO THE CITY OFDENT0N
A. C[8]NT`/ shall pay 0n the CITY, beginning on the effective date of this Agreement, as
identified in this Agreement, u monthly payment of$l,070.0O, and shall continue io pay such
ouootb/y payment amount to the CITY outhe same date ofeach successive month thereafter, for
the primary term nf this Agreement, so long as this /\gr000ueui is in force and effect. The monthly
lease payment rate of $1,870.00 per month takes into account a45Y4discount from the standard
rate of $3,400 per month, because of the COUNTY'S willingness to obligate itself to the CITY
for a five-year term by this Agreement. This monthly payment is based upon the rate for the basic
fiber optic cable pair furnished by the CITY to each site, all as depicted and set forth in Exhibit
'^/\" attached hereto and incorporated herewith by reference. If additional facilities are added to
this /\grncnzout the additional nuoodbly payment obaU he calculated in aounrduuoc with the
provisions expressed in this /\dio1e V. If the use of fiber pair referenced in Article lI.C.4. in
terminated the COUNTY'S monthly payment shall be $1,199.00 per month for the remainder of
the term of this Agreement.
B. The CITY and C()lJNT,/ cocdooup)ede that the fiber pair lease provided for in this
/igcponuoot will pnooih}y he expanded in the foreseeable fhU^ro as the number of COUNTY
facilities increase, move, or change. Accordingly, the CITl, and C[)[DNT,/ desire to rcrnniu
flexible and provide for such eventuality and agree that any new COUNTY facility may be added
to the list of fiber pair facilities network at a odo of $400 per fiber pair, per month, per ouUo, per
new facility, plus o building charge of $180 for ntotal rate of $580 per month, for the first mile
for each new facility; with u ouioiouncn ouo-nuUe c000001iou obarAo for each new fboi/hv, being
$580 per oonutb. The rates stated in this /\diu|o V.B. are only applicable if any new COUNTY
facilities are along the CITY'S established fiber paths. After the first mile connection charge nf
$580, rates are calculated ouu one-tenth o[u mile basis, beginning with one-mile per each new
facility.
C. The CITY shall, at its sole option, decide within sixty (60) days of COUNTY'S application
for adding additional fiber pair facilities, vvhetboc it desires to extend such fiber pair unrequested.
Such requests will be considered oououoe-by-ouoe basis. The CITY and COUNTY expressly
stipulate and understand that the CITY may not extend fiber pair facilities outside of the city limits
of the CITY.
D. The COUNTY may, after the expiration nf the first year oythe term of this Agreement, and
upon ninety days further advance written notice, elect to disconnect a particular facility from the
fiber pair facilities because u facility uo longer serves a COUNTY function. The CITY iawilling
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to consent to such disconnections totaling a maximum of three (3) occurrences during the
remaining tern of this Agreement, and will allow the COUNTY to connect a new facility in place
of the disconnected facility. It is understood that the rental payment for the disconnected facility
shall continue until such time as the new replacement facility has been added as a covered rental -
paying facility under this Agreement. At the time of addition of a new facility to this Agreement
(in lieu of the disconnected facility), COUNTY will no longer be liable for rental on the
disconnected facility. In the event the COUNTY elects not to establish a fiber pair connection to
a new facility, then the COUNTY would still be financially liable to the CITY for the rental for
the disconnected facility until the term of the Agreement has expired.
E. It is agreed and understood that the option of the COUNTY regarding the termination of a
facility, and its replacement by a new COUNTY facility, contained in Article V.D. hereinabove,
may only be exercised by the COUNTY three (3) times during the term of this Agreement.
F. The monthly rental payments provided for in this Article V are due and payable to the
CITY at: Denton Municipal Electric, 1701 -C Spencer Road, Denton, Texas 76205; or at such other
address which the CITY may inform the COUNTY of in writing.
G. The CITY does not require that COUNTY pay to CITY any security deposit respecting
this Agreement.
ARTICLE VI
f-411ifPLEYDOV OF # • PAIR
The CITY may utilize such persons as may be necessary to act as inspectors or agents for
the purpose of supervising, in the interest of the CITY, the materials furnished and the work done
by COUNTY as any construction involved in this project proceeds.
ARTICLE VII
The CITY agrees to submit to COUNTY sufficient test data respecting all aspects of the
connection (the fiber pair) in order to establish satisfactory performance prior to utilization of the
connections and acceptance by COUNTY. Once any such requested testing is complete and the
COUNTY reasonably approves the test results, the COUNTY's acceptance of the fiber pair is
complete. Acceptable test results will be defined as follows:
The end -to -end optical budget of the fiber segment should not exceed 9db. The fiber cable
shall support both wavelengths at 1310 and 1550 nanometers. The COUNTY reserves the
right to have fiber performance tested by an independent test organization for conformance
with the optical specifications stated above. A hard copy of the final document, consisting
of a complete set of end -to -end power attenuation and Optical Time Domain Reflector
( "OTDR ") readings for each single -mode fiber end at 1310 and 1550 nanometers, shall be
provided to the COUNTY along with the actual cable route and total footage for each fiber
segment.
All data exchanged between CITY and COUNTY iu connection with this Agreement or in
utilization nf the fiber pair, which is identified aa proprietary information, shall he safeguarded hv
CITY and COUNTY to the same extent as the CITY or COUNTY safeguards like information
relating to the ClTl/'o or C{}ONTY's ovvo business. If, however, such data is publicly available
under the Public Information Act (Chapter 552 of the Texas Government Code) or other applicable
1uvva, is already in either party's yooaoosiou oc known to either party, or was rightfully obtained by
either party [ionu third parties, uekbcr CTT\, or COUNTY shall hour any responsibility for its
disclosure of such information, inadvertent orotherwise.
CITY uckuovv)cJves that certain data is peculiar to D000IY and which contains
porsuuu||y identifiable iufbmuo1inu. CITY agrees that iu the event that such data comes into
ClTl''s pnuaouoiou that CITY oba1| not disclose to any individual or entity any personally
identifiable information ofCOUNTY, unless the CITY ie required to disclose this information as
u result ofan Order issued by u Court nfcompetent jurisdiction.
ARTICLE IX
A. The CITY shall own and maintain all fiberoptic cables that terminate at the points of
demarcation u1 each COUNTY site.
B. COUNTY shall own and maintain all electronic equipment located at each COUNTY site.
C. COUNTY shall have the right to utilize the leased dark fihoroptic cables comprising the
fiber pair, no long as this Agreement is io force and effect. COUNTY agrees that d will not aoU,
lease, alienate, or otherwise assign bandwidth to any other party. COUNTY further agrees that its
use of the fiber pair will be consistent with that ofoprivate-line service user, and that COUNTY
shall not offer access tothe fiber pair to the public, and the COUNTY shall take reasonable actions
to establish procedures and protocols to assure that only authorized COUNTY personnel 0000ao
the fiber pair.
The COUNTY shall bosolely responsible to determine the location o[any problem within
the COUNTY oloobouico ootvvock and to remedy such problem at C()lJN]Y's an1e cost and
expense. In the event that a problem arises solely within the fiber optic cable (any additional )bueo
emanating from the core) or connections at any patch panels, COUNTY shall promptly notify the
CITY and the CITY shall resolve the problem iuu timely and 0001-etfioieu1manner ut the Cl7Y'o
sole cost and expense. The CITY covenants tu commence repairs within one /l\ hour ofactual
notification from the COUNTY, vvbioh repairs shall be completed an ospodioudy as possible,
utilizing vvbcce possible spare resources from the CIIl,`o perpetual inventory. ^^&x expediently
as possible" for purposes of this Article sbo|| nuouu in u time period of twelve or fewer hours
fb||ovviug actual oo1illca1inu of the request tnthe ClIl/ by the C()DNIl,. }fa circuit repair or
problem takes the CITY greater than twelve hours to complete, then for each 24 hour period
thereafter, the parties agree that the COUNTY may deduct for that particular circuit, the sum equal
to 3.5% of the net "Monthly Payment" as specified in Exhibit "A" attached hereto, for the next
month of this Agreement, for each 24 hour period thereafter, until the repair or problem to that
circuit is completed.
ARTICLE XI
CITY MAINTENANCE • FIBER OPTIC CABLE
In the event that the CITY determines that it is reasonably necessary to perfor
maintenance on the fiber optic cable or within the CITY's network, then the CITY shall noti
COUNTY at least twenty-four (24) hours in advance, if reasonably possible, of any periods
time the CITY determines is necessary for CITY's network to be down. I
I W I 6TA M I a to EA W-We WA a to
In the event of a disconnection of the fiber pair due to a natural disaster, such as a tornado,
flood, or other catastrophic event, the CITY will re-establish connections to COUNTY at the
earliest reasonable opportunity, taking into account, however, that the safety and welfare of the
citizens of the CITY shall be the CITY's utmost priority in determination of restoration of service.
AR,TICLE XIV
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties hereto may agree to settle any disputes under this Agreement by submitting
their dispute to arbitration or other means of alternate dispute resolution such as mediation. No
arbitration or other alternate dispute resolution arising out of or relating to, this Agreement
involving one party's disagreement may include the other party to the disagreement without the
other's approval.
COUNTY shall not assign any interest in this Agreement and shall not transfer any interest
in this Agreement to another governmental entity (whether by assignment, novation or otherwise)
without the prior written consent of the CITY, which consent shall not be unreasonably withheld.
COUNTY may not assign any interest in this Agreement to any other entity, other than a Texas
governmental entity. CITY shall not assign any interest in this Agreement and shall not transfer
any interest in this Agreement (whether by assignment, novation or otherwise) without the prior
written consent of COUNTY, which consent shall not be unreasonably withheld. CITY, likewise,
may only transfer any interest in this Agreement to another Texas governmental entity.
ARTICLE XVI
NOTICE
Any notice given by one party to the other in connection with this Agreement shall be in
writing and shall be by personal delivery; sent by registered mail or certified mail; or by U.S. Mail,
return receipt requested, postage prepaid; or by facsimile transmission actually received, to:
CITY: City Manager
City of Denton, Texas
215 East McKinney Street
Denton, Texas 76201
Fax: (940) 349-8596
MIR
IV I VAMMAW 9W Few W71"I1
90 1 -A Texas Street
Denton, Texas 76209
Fax: (940) 349-8476
COUNTY: County Judge
Denton County, Texas
110 West Hickory Street
Denton, Texas 76201
Fax (940) 349-2821
Notice shall be deemed to have been received on the date of receipt as shown on the return receipt
or other written evidence of receipt.
I I lei 93 1 a 16A'1=
In the event that any one or more of the provisions hereof concerning the subject matter of
this Agreement should be held by a court or administrative agency of competent jurisdiction to be
illegal, invalid or unenforceable in any respect, the parties agree to make a good faith effort to
renegotiate another agreed provision to fulfill the purpose and intent of the present Agreement.
ARTICLE XIX
CIOVERNING LAW AND VENUE
This Agreement shall be construed under and governed by, and in accordance with the
IMM Me tate of Texas and all obli ations of the %arties hereto,_UILted b
9 jp, this Agreement are
performable in Denton !'u unty, Texas. Venue of any suit or cause of action under this Agreement
shall lie exclusively in Denton County, Texas.
ARTICLE XX
MUTUAL TERMINATION OF PRIOR INTERLOCAL COOPERATION AGREEMENTS
The Interlocal Cooperation Agreements referenced in Denton City Ordinances No. 2005-
0220 and No. 2007-0195 are hereby mutually terminated, are • no further force effect, and that
R'iAl 2-4 4 Wil-A
been either satisfied • performed.
I1110111 ILA WAN11111 a 0741 a LIN I
This Agreement and the exhibits attached thereto, constitutes the entire agreement amonq
the parties hereto with respect to the subject matter hereof, and supersedes any prior
of this Agreement. No amendment, modification, cancellation or alteration of the terms of this
10
Agreement shall be binding on any party hereto unless the same is in writing, dated subsequent to
the date hereof, and is duly authorized and executed by the parties hereto.
ARTICLE XXII
WAIVER OF TERMS AND CONDITIONS
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 full force and effect.
ARTICL � XXIII
AUTHORITY OF PARTIES
This Agreement is made by and entered into by the duly- authorized officials of each
respective governmental entity, upon the proper governmental authority.
ARTICIgI, XXIV
CAPTIONS
The captions contained in this Agreement are for informational purposes only and shall
not in any way affect the substantive terms or conditions of this Agreement.
IN WITNESS WHEREOF, the City of Denton, Texas has caused this Interlocal
t,()operatioii Agreetnetil to be executed by its duly- authorized and empowered Mayor on this the
_ 2, day o1' ��__ , 2016; and Denton County, Texas has caused this Interlocal
Cooperation Agreement to be executed by its duly- authorized and empowered County Judge on
this the Z day of," v � , 2016, to be effective as of the 1st day of October 2015.
-- SIGNATURE PAGES FOLLOW --
11
"CITY"
CITY OF DFV l( , "I I; 'AS
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By
Cl I %IS WATTS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
12
"COUNTY"
DENTON CO
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