2005-085S:\Our Documents\Ordinances\05~Denton Co Fiber Optic lnterlocal Agreement.doc
ORDINANCE NO. 2005-
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR TO
EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF
DENTON, TEXAS AND DENTON COUNTY, TEXAS REGARDING THE USE OF THE
RIGHTS OF WAY FOR DENTON COUNTY'S FIBER OPTIC SYSTEM; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the City of Denton has an agreement with the Denton Independent School
District, (DISD), for use of the City rights of way for a Fiber Optic Network. Denton County has
entered into an agreement with DISD to use part of the DISD Fiber Optic Network or to place a
fiber optic cable into the DISD conduit for transportation education, administrative and other
Denton County communication purposes; and
WHEREAS, the Interlocal Cooperation Act, now contained in Chapter 791 of the Texas
Government Code (Vernon 1994), authorizes the CITY and Denton County to enter into an
Interlocal Agreement for the purpose of achieving the governmental functions and providing the
services represented by Denton County use of City rights of way, NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the Mayor, or in her absence, the Mayor Pro-Tem, is hereby
authorized to execute, on behalf of the City Council of the City of Denton, Texas, an Interlocal
Cooperation Agreement between the City of Denton, Texas and Denton County, Texas for the
use of the rights of way for Denton County fiber optic system, which Interlocal Cooperation
Agreement is attached hereto and incorporated by reference herein.
SECTION 2. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the a~_~ay of .Cf~.~4~ , , 2005.
EULINE BROCK, MAYOR
S:\Our Documents\Ordinances\05\Denton Co Fiber Optic lntedoca] Agreement.doc
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
Page 2 of 2
INTERLOCAL AGREEMENT BETWEEN DENTON COUNTY
AND THE CITY OF DENTON FOR USE OF THE CITY OF DENTON
RIGHTS-OF-WAY FOR DENTON COUNTY FIBER OPTIC NETWORK
THIS AGREEMENT is made and entered into by and between the COUNTY OF DENTON
(hereinafter "County"), organized and existing under the laws of the State of Texas and the CITY
OF DENTON, TEXAS, a Texas Municipal Corporation (hereinafter "City"), acting by mad
through, and under the authority of their respective governing bodies; and
WHEREAS, the County and City are local government entities both of whom have the
authority to perform the services set forth in the Agreement individually and who mutually desire
to enter into an interlocal agreement, as provided for in Chapter 791 of the Texas Government
Code (Vernon 1994) in order to maximize the benefits derived from each taxpayer dollar; and
WHEREAS, the Inteflocal Cooperation Act, now Contained in Chapter 791 of the Texas
Government Code (Vernon 1994), authorizing the County and City to enter into this Agreement
for the purpose of achieving the governmental functions and providing the services represented
by this collective, cooperative undertaking; and,
WHEREAS, the City and the County have participated together in many projects and
desire to continue to work together and participate with the City in many cmTent and future
projects; including but not limited to Brinker Road, Loop 288, Bonnie Brae Road, and future
projects for FM designations, such as Maykill Road, and enter into this Agreement as part of this
continued effort to work together.
NOW, THEREFORE, the County and the City, for an in consideration of the premises
and the mutual covenants set forth in this Agreement, does hereby grant unto Denton County the
permanent use of certain public easements pursuant to the following terms and conditions:
1. COMPENSATION
County shall pay to City upon execution of this Agreement, a one time payment of
$3500.00 as good and valid consideration for this Agreement, given the history
between the parties and the public purpose served by this Agreement, for the
permanent use of certain public easements as described in this Agreement.
County may construct a subsurface optical telecommunications line in conjunction with
Denton Independent School District's construction of its system, which is to be part of
the County's total communications network, (''the facility"). The facility and its use are
described as follows:
a. The facility shall consist of a fiber optic cable placed within a Conduit which shall
be installed using directional boring technology to minimize surface disturbance in
accordance with City code requirements as a separate conduit(s) in addition to or as in
piggyback with the conduit(s) previously authorized by the City to be installed by the
Denton Independent School District in a previous agreement with the City.
b. The facility is to be used exclusively for transportation, educational,
administrative and other County communication purposes by the County. Such uses
include, but are not limited to, voice communications, data transfer and video. All uses
may be upgraded or added to as new technologies develop.
c. The facility shall remain a private network used as described above. It is not to be
offered to the general public as a utility or a device to generate revenue or profit.
d. The Denton County conduit and cable shall connect to the Denton County
network switch at the Denton County Courts Building, 1450 E. McK/nney Street in
Denton County, Texas, and other facilities designated by Denton County, and continue'
generally eastward along the routes used by Denton Independent School District, to the
area of Mayhill Road, where it shall join a conduit running generally north and south
along Mayhill Road, and in other locations or routes as shown on Exhibit A. The
Conduits shall be installed at approximately the same time as the Conduits are installed
by the Denton Independent School District ("DISD".) The County may install and
maintain said fiber optic cable and equipment at any time during the term of this
Agreement.
This Agreement is granted subject to the following additional conditions, terms and
reservations:
a. This Agreement is subject to any existing utilities or communications facilities,
including drainage, presently located within the licensed area, owned and/or operated by
the City or any utility or communications company, public or private, and to any vested
rights presently owned by a utility or communications company, public or private, for the
use of the license area for facilities presently located withiu the boundaries of said
hcensed area.
b. The City reserves the fight, subject to further conditions described In the
paragraph, to lay and permit to be laid, sewer, gas, water, and other pipelines or cables
and conduits, and to do and permit to be done, any underground and overhead installation
or improvement that may be deemed necessary or proper by'the governing body of the
City, on, across, along, over or under any public right of way occupied by Denton
County, and to change any curb or sidewalk or the grade of any street. City shall provide
the Counby with written notice of at least sixty (60) days prior to any such action. If the
City reasonably requires Denton County to remove, alter, change, adapt, or conform its
facilities because of changes in the grade of the street or in the location or manner of
construction of a water pipe, sewer pipe, or other underground or aboveground structure
owned by the City, County shall make the alterations or changes as soon as practicable
when ordered in writing by the City, without claim for reimbarsement or damages
against the City. If these requirements impose a financial hardship upon the County,
County shall have the right to present and implement alternative proposals upon consent
of the City. This Agreement is subject to any existing utility or communications
facilities, public or private, including drainage, presently located within the licensed area,
owned and or operated by the City or any utility or communications company, public or
private, and to any vested rights presently owned by any utility or communications
company, public or private, for the use of the area for facilities presently located within
the boundaries of the licensed area. It is the intent to the foregoing that the permission
herein is made expressly subj eot to the utilization of the licensed area for communication
and public utility purpose, including drainage, over, under, through, across and along the
licensed area.
County is prohibited from using the subject area in any manner which Violates Federal,
State or local laws, regulations, roles and orders, regardless of when they become
effective, including without limitation, those related to health, safety, noise,
environmental protection, waste disposal, and water and air quality, and shall provide
satisfactory evidence of compliance upon request by the City. Should any discharge,
leakage, spillage, emission or pollution of any type occur upon or from the licensed area
due to County's use mad occupancy thereof, County, at its expense, shall be obhgated to
clean up the hcensed area to the satisfaction of the City and any governmental body
having jurisdiction there over.
City does hereby license and demise, subject to the foregoing terms and provisions, the
property depicted on Exhibit "A", herein above referred to as the "premises", which is
attached hereto and made a part hereof.
This Agreement is subject to all State' laws, the provisions of the Charter of the City of
Denton as it now exists, or may hereafter be adopted or amended, and the ordinances of
the City of Denton now in effect or those which may hereafter be passed or adopted.
This Agreement embodies the complete agreement of the parties, superseding all oral or
written previous and contemporary agreements between the parties and relating to
matters in this Agreement cannot be modified without written agreement of the City and
County to be attached and made a part of this Agreement.'
Any Notice under this Agreement shall be in writing and shall be delivered by certified
mail, return receipt, and direct as follows:
For City:
Mike Conduff, City Manger
City of Denton
215 E. McK/nney Street
Denton, Texas 76201
For County:
Honorable Mary Horn
Denton County Judge
110 East Hickory
Denton, Texas 76201
Copy to:
District Attorney's Office/Civil Division
1450 East McKinney
P.O. Box 2850
Denton, Texas 76202
Copy to:
City of Denton City Attorneys Office
215 E. McKinney
Denton, Texas 76201
10.
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¸12.
13.
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15.
This Agreement is not intended to extend the liability of the parties beyor~d that provided
by law. Neither Comity or City waivers, not shall be deemed hereby to waive, any
immunity or defense that would otherwise be available to it against claims arising by
th/rd parties. The parties to this Agreement agree that the exchanges and permitted uses
described in this Agreement constitute payments in amounts that fairly compensate the
other party for the services and functions performed under this Agreement. Further, the
parties to this Agreement stipulate and agree that the parties paying for the performance
of the governmental functions or services will make these payments fi:om current revenue
available to that party.
No waiver or modification of this Agreement or of any covenant, condition, limitation
herein contained shall be valid unless in writing and duly executed by the party to be
charged therewith. No evidence of any waiver or modification shall be offered or
received in evidence in any proceeding arising between the parties hereto out of or
affecting this Agreement, or the rights or obligations of the parties hereunder, unless such
waiver or modification is in writing, duly executed. The parties further agree that the
provisions of this section will not be waived unless as herein set forth.
In the event that any one or more of tt¢e 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.
This Agreement shall be construed under and governed by, and in accordance with the
laws of the State of Texas, and all obligations of the parties hereto, created by this
Agreement are performable in Denton County, Texas. Venue of any suit or cause of
action under this Agreement shall lie exclusively in Denton County, Texas.
This Agreement and the exhibits attached thereto, constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof, and supersedes any prior
understandings or written or oral agreements between the parties with respect to the
subject matter of this Agreement. No amendment, modification, cancellation or
alteration of the terms of this Agreement shall be binding on any party hereto unless the
same is in writing, dated subsequent to the date hereof, and is duly executed by the
parties hereto.
The failure of either party to enforce or insist upon compliance with any of the terms or
conditions of tkis 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.
This Agreement is entered into by the duly authorized officials of each respective
governmental entity.
EXECUTED in triplicate originals on this the O~~ day of ~CIPC .~ , 2005
by Denton County, Texas.
DENTON COUNTY
110 West Hickory
Denton, Texas 7ijr
By: i ~--GVit
H n. NJary Horn, De County Judge
Date: 3~ CAS
Acting on behalf and by the authority of the
Denton County, Texas.
ATTEST: a ~ ; y3
Denton Count Clerk %`~ ~''• ~~o~a
APPROV D - TO LEGA F R ~r~grm~u~~~~~~~
B .
Assistant District Attorne ~/(~
EXECUTED in triplicate originals on this thea,~' ~ day of , 2005
by the City oP Denton, Texas
CITY OF DENTON
215 E. McKinney
Denton, Texas 76201
Hon. Euline Brock a r
Date: _ _ 3~aa. ~~~
Acting on behalf and by the authority of the City of Denton, Denton County, Texas.
ATTEST:
WALTERS, CITY/SECRETARY
BY:
TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
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