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HomeMy WebLinkAboutR-2027-2-02RESOLUTION NO. 2027-2-02(R) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF AN INTERLOCAL COOPERATION AGREEMENT BY AND BETWEEN THE CITY OF ALLEN, TEXAS, AND COLLIN COUNTY COMMUNITY COLLEGE DISTRICT, CONCERNING A ROUTE SPECIFIC AGREEMENT TO INSTALL FACILITIES WITHIN THE RIGHTS-OF-WAY TO PROVIDE NETWORK TELECOMMUNICATIONS SERVICES TO DISTRICT FACILITIES; AUTHORIZING ITS EXECUTION BY THE CITY MANAGER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Allen, Texas, has been presented a proposed Interlocal Cooperation Agreement ("Agreement') by and between Collin County Community College District, Texas, and the City of Allen, Texas, for a route specific agreement to install facilifies within the rights-of-way to provide network telecommunications services to district facilities, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference; and, WHEREAS, upon full review and consideration of the Agreement, and all matters related thereto, the City Council is of the opinion and finds that the terms and conditions thereof should be approved, and that the City Manager should be authorized to execute the Agreement on behalf of the City of Allen, Texas; and, WHEREAS, the attached Agreement shall remain in effect for five (5) years unless terminated by a party upon giving thirty (30) days written notice to the other party of its intent to terminate the agreement. ' NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, THAT: SECTION 1: The terms and conditions of the Agreement, having been reviewed by the City Council of the City of Allen and found to be acceptable and in the best interests of the City of Allen and its citizens, be, and the same is hereby, in all things approved. SECTION 2: The City Manager is hereby authorized to execute the Agreement and all other documents in connection therewith on behalf of the City of Allen, substantially according to the terms and conditions set forth in this Agreement. SECTION 3: The City Secretary shall forward a certified copy of this Resolution to Ralph Hall, Collin County Community College District Vice President of Administration. SECTION 4: This Resolution shall become effective from and after its passage. DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, ON THIS THE 21"' DAY OF FEBRUARY, 2002. APPROVED: Stephen, MAYOR ' ATTEST: Jao Mor son, CMC/AAE, CITY SECRETARY ' EXHIBIT "A" Resolution No. 2027-2-02(R) ROUTE SPECIFIC AGREEMENT BETWEEN CITY OF ALLEN AND COLLIN COUNTY COMMUNITY COLLEGE DISTRICT This Agreement ("Agreement") is made and entered into as of the jj�rday of 2002, by and between the CITY OF ALLEN, a municipal corporation of the State of Texas, hereinafter called the "City" and COLLIN COUNTY COMMUNITY COLLEGE DISTRICT, hereinafter called the "District." WHEREAS, the District plans to install Facilities (hereinafter defined) within the Rights - of -Way of the City (hereinafter defined) in order for the District to provide Network Telecommunications Services (hereinafter defined) to the District facilities located in Plano and ' McKinney; and WHEREAS, the City does not desire to require the District to pay compensation to the City for such use and occupancy of the Rights -of -Way; and WHEREAS, the City and the District agree that the District's provision of Network Telecommunications Services within the City is encouraged and will be accomplished under the provisions of this Agreement; and WHEREAS, the Facilities will benefit those citizens of the City attending courses at either of the District's campuses; NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained it is hereby agreed by and between the parties hereto as follows: 1. Purpose. The City hereby grants to the District, its successors and permitted assigns, ' the non-exclusive right and privilege to use the Rights -of -Way in the City in order to provide 1 ' EXHIBIT "A" Resolution No. 2027-2-02(R) Network Telecommunications Services in the City as the District's business may from time to time require, and after obtaining appropriate permits from the City and complying with all City ordinances and regulations. This Agreement, and the rights granted hereunder, shall not be exclusive, and the City reserves the right to grant a similar use of the Rights -of -Way to any person or any corporation duly authorized by the City to occupy or use the Rights -of -Way during the term of this Agreement. This Agreement grants the District the right to construct, reconstruct, maintain, and operate, subject to the terms of this License Agreement the single sheath 48 -strand fiber optic cable plant consisting of both aerial on existing utility pole infrastructure and underground placement within 4" conduits under the below listed public streets in the City of Allen, Collin County, Texas, as shown in Exhibit "A' attached hereto and ' incorporated herein for all purposes: Street Miles of Richt-of-Way State Highway 5 6 miles Bethany .1 mile Jupiter 2.8 miles 2. Definitions. Whenever used in this Agreement, the following words and terms shall have the definitions and meanings provided in this section: (a) "City" means the City of Allen, Texas. (b) "District" means the Collin County Community College District. N EXHIBIT "A" Resolution No. 2027-2-02(R) (c) "Effective Date" means the date this Agreement has been executed by the City and the District. If the City and the District execute this Agreement on different dates, then the Effective Date shall be the last date of execution. (d) "Emergency" means a reasonably unforeseen occurrence with a potential to endanger personal safety or health, or cause substantial damage to property that calls for immediate action. (e) "Facilities" means all duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurtenances and all associated transmission media used in the provision of Network Telecommunications Services. (f) "Rights -of -Way" means all present and future streets, alleys, highways and public roads in the City, but excluding railroads rights-of-way and parks, within the city limits of the City. (g) "Network Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received. (h) "Network Telecommunications Services" means the offering of private Telecommunications directly to the user, or to such classes of users as to be effectively available directly to the user, regardless of the Facilities used. The term shall not include the offering of any services to the general public. Ll 3 ' EXHIBIT "A" Resolution No. 2027-2-02(R) (i) "Use" means any occupation, acquisition, construction, reconstruction, maintenance or operation of any Facilities in, over, under, along, through or across the Rights -of - Way for the provision of Network Telecommunications Services. 3. Term. This Agreement shall remain in effect for a period of five (5) years from and after the Effective Date, unless sooner terminated pursuant to the provisions hereof. In the event the District and the City have not, on or before the date of expiration, agreed to the terms of a subsequent agreement for the use of the Rights -of -Way for the provision of Network Telecommunications Services, the term of this Agreement may be extended by the mutual written agreement of the City and the District. The District shall have the right to terminate this ' Agreement, upon thirty (30) days notice to the City, provided that the District, and all entities affiliated with the District, discontinue the use and occupancy of the Rights -of -Way for the purpose of providing Network Telecommunications Services. 4. Additional Authority Required. Nothing in this Agreement grants the District the right to operate or to provide telephone service, cable television service or Open Video Service in the City, or to use the Rights -of -Way for any purpose other than the provision of Network Telecommunications Services, other than in support of the District's governmental functions, unless and until the District makes application for and is granted a franchise or appropriate authorization by the City. 5. General Conditions of Use. Except in an Emergency, the District shall not install facilities in the Right -of -Way or excavate any Right -of -Way without first notifying the Engineering Department of the City and obtaining a permit therefor as required by City 4 ' EXHIBIT "A" Resolution No. 2027-2-02(R) ordinances. If approval is required, it shall be given if the proposed excavation is in compliance with the requirements of City ordinances. The Director of Engineering or designee shall be notified in writing within two (2) business days regarding work performed under Emergency conditions. The District shall comply with the requirements of the City as described in the Right - of -Way Management Ordinance for the restoration of the Rights -of -Way. The failure of the District to request and obtain a permit from the City prior to excavation of any Right -of -Way, except in an Emergency, will subject the District to a stop -work order from the City or enforcement action pursuant to the City's ordinances. 6. Construction and Maintenance. In all matters relating to this Agreement, the District agrees to comply with the City of Allen Land Development Code and the Right -of -Way rManagement Ordinance, and as amended from time to time, and all other applicable laws and ordinances of the City. Approval by City of this Agreement shall not constitute a warranty by City that the District's plans conform with federal, state and/or local codes and regulations applicable thereto. All work upon or in connection with the Facilities shall be done at such times and in such manner as determined by the Director of Engineering so as not to unreasonably interfere with the use of the Rights -of -Way and to interfere as little as practical with the surface use of the Rights -of -Way by the City and traveling public. For street crossings, construction shall be by boring under the Rights -of -Way without disturbing the surface. In construction, reconstruction, maintenance and operation of the Facilities, the District shall keep the Rights -of - Way in a neat and safe condition and in good order and operating condition. E ' EXHIBIT "A" Resolution No. 2027-2-02(R) If, the City determines that the District has not complied with the requirements of this agreement or with the Right -of -Way Management Ordinance, the City shall so notify the District, in writing, stating the specific deficiencies and giving the District reasonable time to correct said deficiencies, such time to be determined within the sole and reasonable discretion of the City. If the District fails to correct said deficiencies within the time allotted by the City, City may correct said deficiencies itself, at the District's expense. 7. Use of District Facilities by the City and Third Parties. The District shall have no right to lease, sublet, or otherwise allow any third party to use any portion of the Facilities; provided, however, that, subject to their agreement on such additional terns as may be appropriate, the City and the District contemplate that the District will be permitted to connect ' its Facilities to governmental entities, the Cities of Allen, Frisco, McKinney, and /or Plano and Independent District Districts solely in furtherance of the District's educational purposes. In conjunction with the granting this license agreement and as consideration for the use of the Rights -of -Way, the District shall connect City Facilities for a mutual benefit to provide interconnectivity of the District's and City's Network Telecommunications and to assist in the development of the City's independent fiber network. Such connection shall include Facilities along the common path of the District's construction for its Facilities, as depicted in Exhibit A, attached hereto and incorporated herein for all purposes, and includes the following City owned or controlled buildings and facilities: ❖ Don Rodenbaugh Natatorium Fire Station #3 R1 EXHIBIT "A" Resolution No. 2027-2-02(R) Animal Shelter > Joe Farmer Recreation Center :• City Hall Fire Station #2 ❖ Stacy Road Pump Station The District shall connect agreed upon City Facilities in which the interconnectivity between District and City Facilities shall consist of a common demarcation point to be determined after the engineering specifications have been prepared and the independent City Network Telecommunications shall consist of 12 -strand single mode fiber cable which shall be for the sole and exclusive use of the City. The District's connection of the City's independent Network Telecommunications shall include engineering the route, obtaining pole attachment agreements, and constructing and installing the fiber optic network to the pole closest to the designated City facilities. The District will provide specifications to the City for the fiber. The City will be responsible for costs associated with pole attachment agreements, the provision of fiber that meets the District's specifications, installing conduit from the last pole to the designated facility, and terminating fiber in designated facility. The District will also fusion splice all fiber in existing Right -of -Way. After termination of the fiber to designated facility, the District will test and certify the City's entire fiber network. The City is responsible for the maintenance and restoration of the City's fiber network where it is not along the common path. The City will work with the District to identify a route to determine whether additional City facilities can be 7 ' EXHIBIT "A" Resolution No. 2027-2-02(R) connected to the Network Telecommunications that are not along the common path of the District's Facilities. Interconnection of the City Facilities shall include the dedication of two pair fiber by the District, for future interconnection opportunities. 8. Relocation of Facilities. (a) The District is allowed to place Facilities above ground on existing utilities, but the District agrees to place Facilities underground where there is no existing above ground facilities and to cross public streets. If existing utilities are relocated or placed underground in the future, the District shall pay all costs for such relocation or placement underground. (b) The City reserves the right to lay, and permit to be laid, sewer, gas, water, electric, storm drainage, Telecommunications Facilities, and other pipelines, cables, conduits, or other Facilities and to do, and to permit to be done any underground and overhead installation or improvement that may be deemed necessary or proper by the City in, across, along, above, or under any Rights -of -Way occupied by District Facilities, and to change, alter, improve, expand or improve any curb, sidewalk, alley or street, or the grade of any street, curb, sidewalk or alley. Conformance with public improvements shall be consistent with the Right -of -Way Management Ordinance. (c) The District recognizes that it is allowed to place Facilities in the Rights -of -Way at the City's convenience, and shall relocate its Facilities at the request of the City. Such relocation shall be completed within 60 days after notification or within a mutually agreed time period. Such relocation shall be made by the District at the District's expense. 8 ' EXHIBIT "A" Resolution No. 2027-2-02(R) (d) Upon notice in writing from the City that changes in the Rights -of -Way are required pursuant to the City's police power in such a manner as will necessitate the relocation of the District's or the City's Facilities in the Rights -of -Way, the District shall relocate its Facilities at no expense to the City so as to permit the construction of such improvements when ordered; and, should the District fail to comply with such notice, the Facilities may be relocated by the City and the cost thereof recovered from the District within thirty (30) calendar days after notification to District. 9. Miscellaneous Oblieations of the District. (a) The District shall maintain a complete set of "as built" plans of its Facilities which ' shall be available to the City for inspection at all reasonable times. The District shall furnish copies of the same to City within thirty (30) days after completion of work in, on, above, under any portion of the Rights -of -Way. (b) The District shall designate and maintain an agent who shall be knowledgeable of the District Facilities, whose name, address and telephone number shall be furnished in writing annually, (and upon any change in agent or address), to the Director of Engineering. The District's agent shall be responsible for providing all information reasonably requested by the City. (c) The District shall maintain membership in the area wide "Texas One Call System". 10. Indemnification. (a) TO THE EXTENT ALLOWED BY LAW, THE DISTRICT SHALL SAVE, ' DEFEND, INDEMNIFY AND KEEP HARMLESS THE CITY, ITS OFFICERS, ELECTED 9 ' EXHIBIT "A" Resolution No. 2027-2-02(R) OFFICIALS, EMPLOYEES, AGENTS AND CONTRACTORS FROM ANY AND ALL CLAIMS AND LIABILITY BY REASON OF DAMAGE OR INJURY (INCLUDING DEATH) ARISING FROM OR ON ACCOUNT OF THE NEGLIGENCE OF THE DISTRICT IN ITS PROVISION OF NETWORK TELECOMMUNICATIONS SERVICES IN THE CITY AND THE USE OF THE RIGHTS-OF-WAY, EXCEPT AND TO THE EXTENT SUCH DAMAGE OR INJURY ARISES OUT OF THE CITY'S SOLE NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE DISTRICT BE LIABLE TO THE CITY FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGE, OR LOST PROFITS ALLEGED TO HAVE BEEN INCURRED BY ANYONE. ' (b) TO THE EXTENT ALLOWED BY LAW, THE CITY SHALL SAVE, DEFEND, INDEMNIFY AND KEEP HARMLESS THE DISTRICT ITS OFFICERS, ELECTED OFFICIALS, EMPLOYEES, AGENTS AND CONTRACTORS FROM ANY AND ALL CLAIMS AND LIABILITY BY REASON OF DAMAGE OR INJURY ARISING FROM OR ON ACCOUNT OF THE NEGLIGENCE OF THE CITY IN CONNECTION WITH THE CITY'S EXERCISE OF ITS AUTHORITY HEREUNDER EXCEPT AND TO THE EXTENT SUCH DAMAGE OR INJURY ARISES OUT OF THE DISTRICT'S SOLE NEGLIGENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CITY BE LIABLE TO THE DISTRICT FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGE, OR LOST PROFITS ' ALLEGED TO HAVE BEEN INCURRED BY ANYONE. 10 EXHIBIT "A" Resolution No. 2027-2-02(R) (c) IN ALL INSTANCES IN WHICH A PARTY IS OBLIGATED TO INDEMNIFY AND HOLD HARMLESS THE OTHER AS PROVIDED FOR IN THIS AGREEMENT, THE INDEMNITOR'S OBLIGATION SHALL BE CONDITIONED UPON (i) THE INDEMNITEE GIVING THE INDEMNITOR WRITTEN NOTICE OF ALL CLAIMS, DAMAGES, LOSSES, SUITS AND ANY OTHER EVENTS WHICH ARE IN ANY WAY RELATED TO OR ASSERTED BY INDEMNITEE AS A BASIS FOR SUCH OBLIGATION, WHICH NOTICE SHALL BE GIVEN PROMPTLY AFTER INDEMNITEE BECOMES AWARE THEREOF, AND (ii) THE INDEMNITOR SHALL HAVE THE RIGHT TO CONTROL THE DEFENSE OF SUCH MATTER AND TO DETERMINE THE DISPOSITION OF SUCH MATTER. 11. Assignment. This Agreement and any rights or privileges hereunder shall not be assignable to any other entity, other than any successor of the District, without the express written consent of the City. Such consent shall be evidenced by an ordinance or resolution, which shall fully recite the terms and conditions, if any, upon which such consent is given. This Agreement is for the sole use of the District. This Agreement does not permit the extension of any fibers and/or facilities outside the District Facilities at any point within the City as defined in Section 1. 12. Enforcement Provisions. (a) Neither party shall be in default under this Agreement or in breach of any provision hereof unless and until the other party shall have given such party written notice of such default and the defaulting party shall have failed to cure the default within thirty (30) days after receipt ' of such notice; provided, however, that where such default cannot reasonably be cured within 11 EXHIBIT "A" Resolution No. 2027-2-02(R) such thirty (30) day period, if the defaulting party shall proceed promptly to commence the cure of the default and shall prosecute such cure with due diligence, the time for curing such default shall be extended for such period of time as may be reasonably necessary under the circumstances to complete such cure. (b) Notwithstanding any other provisions of this Agreement to the contrary, the City and the District shall have the option to bring suit for specific performance, injunction, or damages at any time for failure of the District or the City to comply with any terms, conditions, or provisions of this Agreement and the City may, in its discretion, bring an appropriate enforcement action if the District should fail to comply with any provisions of any ordinances of ' the City regulating the use by the District of the Rights -of -Way. The rights and remedies of the City and District set forth in this Agreement, shall be in addition to and not in limitation of any other rights and remedies provided by law or in equity. (c) The District or the City shall not be excused from complying with any of the terms and conditions of this Agreement because of any failure of the City or the District upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. (d) This Agreement shall terminate: (i) Upon the expiration of the term hereof; (ii) Upon the abandonment of the Facilities or discontinuance of the use thereof; (iii) Upon the failure of the District to correct any violation or cure any default under this Agreement after written notice of said violation or default from ' City; 12 ' EXHIBIT "A" Resolution No. 2027-2-02(R) (iv) Upon the adoption of a Franchise Agreement that is specifically made applicable to the District; or (v) Upon the mutual agreement of the parties. (e) Upon termination of this Agreement, the District shall either, remove said Facilities and restore the Rights -of -Way to City's reasonable satisfaction, failing which, City may cause such removal at District's expense, or with the consent of the City, leave and abandon said Facilities, less any personal property contained within the conduit, in place for use by the City. 13. Notice. For the purpose of this Agreement, notice to the City will be to: City Manager City of Allen ' One Allen Civic Plaza Allen, Texas 75013 With a copy to: 1 Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Lincoln Plaza 500 N. Akard St. Dallas, Texas 75201 Notice to the District will be to: Ralph Hall, V.P. Administration Collin County Community College 4800 Preston Park Boulevard Plano, TX 75092 13 ' EXHIBIT "A" Resolution No. 2027-2-02(R) With a copy to: Bob Roeder Abernathy, Roeder, Boyd & Joplin 1700 Red Bird Boulevard, #300 McKinney, TX 75069-1210 Notice shall be effective upon delivery by hand -delivery or first class mail with return receipt requested at the above address until the City or the District notifies the other, in writing, of a change in the address. 14. Severability. If any section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this Agreement is for any reason held invalid or unenforceable ' by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby but shall be deemed as a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof, and each remaining section, subsection, sentence, clause, phrase term, provision, condition, covenant and portion of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 15. Venue. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties hereunder are performable in Collin County, Texas. In the event that any legal proceeding is brought to enforce the terms of this Agreement, the same shall be brought in a competent Court of law in Collin County, Texas. 16. Amendments. The parties hereto may from time to time consider it in their best interest to change, modify, or extend a term, condition or covenant of this Agreement. Any such ' change, addition, deletion, extension or modification, which is mutually agreed upon by and 14 EXHIBIT "A" Resolution No. 2027-2-02(R) between the City and District shall be incorporated in written amendments ("Amendments") to this Agreement. Such Amendments shall not invalidate this Agreement nor relieve or release either party of any of their respective obligations under this Agreement except as expressly stated in such Amendment. No Amendment to this Agreement shall be effective and binding upon the parties unless it expressly makes reference to this Agreement. 17. Terminoloev. Unless the context otherwise expressly requires, the words "herein," "hereof," and "hereunder" and any other words of similar import refer to this Agreement as a whole and not to any particular section or other subdivision. 18. Captions. The headings of the paragraphs in this Agreement are for convenience only to facilitate reading and reference to its provisions and shall not be used to construe or interpret the scope or intent of this Agreement or in any way affect the same. 19. Entire Aereement. This Agreement shall constitute the entire Agreement between the City and the District and may not be modified or amended other than by a written instrument executed by both parties. 15 I EXHIBIT "A" Resolution No. 2027-2-02(R) CITY OF ALLEN By: mo1�.— PRINT NAME: et . Vargas TITLE: CITY MANAGER COLLIN COUNTY COMMUNITY COLLEGE DIS By: 7Q- PRINT NAME: Ralph G. Hall TITLE: VP Ad"'^"tration 16 ' � S U ROPH "M N <N 9 N LL Visa ulViunod n E w 2 N y N G C y N s8uutlg Buueoy E' nlldnr Qry c .......... ............................ 1 mluau uiddoVs 0111AU JO X Pana W JE ' e c w uo. .u.. 6 O LL C Y L d 1L u U O F U 1tlYa � % o = c ¢ U ......... awm ■im 1 4Viu� si