Item 5BCity of Southlake, Texas
MEMORANDUM
March 4, 2005
TO: Shana Yelverton, City Manager
FROM: Malcolm Jackson, Director of Community Services
SUBJECT: Authorize the Mayor to execute a non - exclusive license agreement with Wil-
Tel Communications for the installation of fiber optic cable in park property
adjacent to Kirkwood Hollow
Action Requested: Authorize the Mayor to execute a non - exclusive license agreement with
Wil -Tel Communications for the installation of fiber optic cable in park
property adjacent to Kirkwood Hollow.
Background
Information: The City of Southlake has been approached by the contractor for a fiber
optic utility company to provide for the installation of a fiber optics cable
in linear park property that was dedicated to the city during the
development of the Kirkwood Hollow residential subdivision. The subject
linear park property is adjacent to Kirkwood Hollow Ph. III on the north
side of Dove Road between Kirkwood Hollow Blvd. and N. White Chapel,
and adjacent to Kirkwood Hollow along the west side of N. White Chapel
north of Dove Road. (see area map). The applicant, Wil -Tel
Communications, wishes to install a fiber optic line in these areas to reach
from the Verizon operations center at S.H. 114 and Dove to extend to the
planned DPS North Facility and beyond. The applicant plans to place the
fiber in these park areas, then around the existing water tower site in
separate utility easements, then back north on the west side of N. White
Chapel. This avoids placing fiber in the right -of -way of Dove Road, which
will undergo significant construction around the intersection of N. White
Chapel. By avoiding the Dove right -of -way and placing the cable in a 5'
wide area closest to the subdivision, the applicant will most likely not
need to relocate the lines when the design and construction of that
intersection begins.
Both the Engineering and Community Services Departments have
reviewed the alignment and license agreement documents and are satisfied
that the easement will place no burden or detrimental encumbrance on the
linear park areas, which have no amenities planned other than existing or
proposed trails. Any subsequent construction in the easement by the
applicant would require restoration of the disturbed areas to original
conditions. The addition of fiber optic lines also obviously assists the DPS
North Facility and any others who may tie -in greatly.
The salient points of the agreement are as follows:
• Wil -Tel will provide a $6,000 license fee
• A license fee paid at $1 per linear foot of cable per year
• Wil -Tel will reserve fiber capacity of 6 fibers from DPS North Facility
to terminate near the Verizon Network Operation Center.
• Covenant to use existing 10 foot utility easement to the north and west
of the White Chapel / Dove Water Tower to connect the two license
areas
• The allowance of only one conduit not to exceed nine inches in
diameter
• Should fiber optic cable relocation be necessary, it will be at the
Licensee's expense upon 18 months' notice from city.
Financial
Considerations: As noted above.
Financial Impact: The city bears no expense and will gain fiber optic capability in the area.
Citizen Input/
Board Review: Item tabled at the March 1, 2005, City Council meeting to change legal
agreement from creation and use of a public utility easement to a license
agreement
Park Board recommended (9 -0) to approve the agreement in principle (it
was framed as an easement, rather than license agreement, at the time) at
their February 17, 2005, meeting.
Legal Review: License agreement extensively reviewed and negotiated by City
Attorneys.
Alternatives: Recommend alternatives or denial.
Supporting
Documents: Supporting documents include:
■ License Agreement with Will -Tel
■ Exhibit showing location of fiber optic cable route and legal
description of the area
Staff
Recommendation: Council approval to authorize the Mayor to execute a non - exclusive
license agreement with Wil -Tel Communications for the installation of
fiber optic cable in park property adjacent to Kirkwood Hollow.
NON- EXCLUSIVE LICENSE AGREEMENT
THIS NON- EXCLUSIVE LICENSE AGREEMENT ( "Agreement ") is made this
day of ' 2005 between the CITY OF SOUTHLAKE, TEXAS ( "Licensor")
and WILTEL COMMUNICATIONS, LLC ( "Licensee ").
WITNESSETH
For and in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Licensor and
Licensee agree as follows:
1. Licensor hereby grants to Licensee a non - exclusive license to occupy and use,
subject to all of the terms and conditions hereof, that portion of Licensor's
property located in Tarrant County, Texas, as more specifically described in
Exhibit "A" and Exhibit "B ", attached hereto and incorporated herein by
reference (the "License Area ").
2. Licensor's property may be occupied and used by Licensee solely for the purpose
of installing, repairing, maintaining, altering, replacing, relocating, rebuilding,
removing, and operating Licensee's underground telecommunications facilities
which shall include six (6) innerducts which combined will not exceed nine
inches in diameter, fiber optic cables and any appurtenances thereto (collectively,
the "Telecommunications System "). Licensee agrees to install the
Telecommunications System across Licenser's property and utilize the existing
drainage and utility easement located to the north and west of the above - ground
water storage tank at White Chapel Road and Dove Road as shown in Exhibit B.
3. The term of the license granted herein is ten (10) years, beginning on the
Effective Date (as defined in Section 15) and terminating at midnight on the tenth
anniversary of the Effective Date. As compensation for the rights and privileges
herein conferred, Licensee shall (i) pay to Licensor a one -time license fee of
$6,000; (ii) reasonable attorneys' fees incurred by Licensor in connection with
this Agreement; (iii) pay to Licensor an annual fee equal to $1.00 per linear foot
of Licensee's Telecommunications System installed on Licensor's property per
year, commencing on the Effective Date and (iv) grant Licensor an indefeasible
right to use six (b) strands of dark optical fiber installed in the Licensee's
innerduct within. the License Area located between the exterior of the Verizon
Network Operation Center to the handhole north of the intersection of White
Chapel Road and Dove Road as shown on the construction plans approved by the
Licensor and situated approximately 200 feet from the proposed Southlake
Department of Public Safety north facility; (v) splice and, upon Licensor's
request, connect the fibers in the innerduct to the fibers of the City of Southlake's
fibers; and (vi) maintain the fiber optic cable strands pursuant to a separate
Agreement by and between the parties.
4. Licensee shall have the right to maintain, repair and replace the
Telecommunications System during the term of this Agreement. Licensee must
give at least ten (1 D) days' notice, except in an emergency, to Licensor prior to
any such maintenance, repair or replacement and Licensor must approve the
methods and time of any such maintenance, repair or replacement, which
approval shall not be unreasonably withheld or delayed. Licensee shall comply
with all requirements for Class I utilities imposed by Texas statute, including
notification and marking.
5. If Licensee undertakes any maintenance, repair, replacement, relocation or
removal relating to the Telecommunications System, Licensee shall restore the
surface of Licenser's property, as soon as reasonably possible, to as good or better
condition than the original grade, level, and condition existing prior to Licensee's
activity, and shall pay Licensor for actual damages to Licensoe's property or
improvements to Licensoe's property resulting directly from the exercise, now or
in the future, of the rights herein granted.
6. Licensee shall place no above- ground structures or improvements upon Licensee's
property.
7. Licensee agrees to comply with all State and Federal laws relating to the exercise
of rights herein granted.
LICENSEE, AT LICENSEES SOLE COST AND EXPENSE, SHALL
INDEMNIFY AND HOLD HARMLESS LICENSOR, ITS OFFICERS,
BOARDS, COMMISSIONS, AGENT'S, AND EMPLOYEES
( "INDEMNIT'EES'}, FROM AND AGAINST ANY AND ALL DAMAGES
WHICH MAYARISE OUT OF OR BE IN ANY WAY CONNECTED WITH (I)
THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE
OR CONDITION OF THE FIBER OPTIC CABLE OR ANY RELATED
FACILITIES OR APPURTENANCES; (II) ANY CLAIM OR LIEN ARISING
OUT OF WORR', LABOR, MATERIALS OR SUPPLIES PROVIDED OR
SUPPLIED TO LICENSEE, ITS CONTRACTORS OR SUBCONTRACTORS;
OR (III) LICENSEE'S FAILURE TO COMPLY WITH ANY FEDERAL,
STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION, ACT(S)
EXCEPT TO THE EXTENT CAUSED BY THE INTENTIONAL
MISCONDUCT OF THE LICENSOR, ITS OFFICERS AND EMPLOYEES.
For purposes of this Agreement, "damages" shall include damages, losses,
liabilities (joint or several), payments, obligations, penalties, claims, litigation,
demands, defenses, judgments, lawsuits, proceedings, costs, disbursements or
expenses (including, without limitation, fees, disbursements and reasonable
expenses of attorneys, accountants and other professional advisors and of expert
_2
witnesses and costs of investigation and preparation) of any kind or nature
whatsoever.
If an action is brought against any Indemnitee by reason of any matter for which
the Indernnitees are indemnified hereunder, Licensor shall give Licensee prompt
written notice of the making of any claim or commencement of any such action,
lawsuit or other proceeding, and Licensee, at its sole cost and expense, shall
defend the same with reasonable participation by Licensor and with legal counsel
selected by Licensee. In such an event, Licensee shall not admit liability in any
matter on behalf of any Indemnitee without the advance written consent of
Licensor.
8. Prior to undertaking any maintenance, repair, replacement, relocation or removal,
Licensee shall provide Licensor with certificates of insurance, acceptable to the
Licensor, of all contractors or subcontractors of Licensee using the Licensor's
premises. Said policies of insurance shall name Licensor, its officers, and
employees as additional insureds, and provide for waiver of all rights of
subrogation against Licensor, its officers and employees.
9. Licensee agrees that it does not and shall not claim, at any time, any interest or
estate of any kind or extent whatsoever in the premises, by virtue of this license.
10. The making, execution, and delivery of this Agreement by Licensor have been
induced by no representations, statements, warranties, or agreements other than
those herein expressed. This Agreement embodies the entire understanding of the
parties and there are no further agreements or understandings, written or oral, in
effect between the parties, relating to the subject matter hereof. This instrument
may be amended or modified only by an instrument of equal formality signed by
the respective parties.
11. Any notices under this Agreement shall be sent via certified mail, return receipt
requested, overnight delivery service or personal delivery and shall be effective
upon receipt to the following addresses:
Licensor:
City of Southlake, Texas
Attention: City Manager
1400 Main Street, Suite 460
Southlake, Texas 76092
Licensee:
WilTel Communications, LLC
Attention: Right of Way Admin
One Technology Center, Suite 1 1 X
Tulsa, Oklahoma 74103
With copy to:
WilTel Communications, LLC
Attention: Legal Department — ROW
One Technology Center, Suite 15
Tulsa, Oklahoma 74103
_3
12. (a) The occurrence at any time during the term of this Agreement of one or
more of the following events shall constitute an "Event of Default" under this
Agreement: if Licensee (i) breaches or violates any of the terms or covenants set
forth in this Agreement, (ii) fails to perform any obligation required by this
Agreement, or (iii) violates any existing or future federal, state or local laws or any
existing or future ordinances, rules and regulations of the Licensor. If an Event of
Default occurs, Licensor shall provide Licensee written notice and shall give
Licensee thirty (30) days from Licensee's receipt of such notice, to cure such
Event of Default. If the Event of Default is not capable of being cured within
thirty (30) days, and Licensee is working diligently to effect a cure, Licensor shall
extend the cure period for an additional thirty (30) days.
(b) If any Event of Default is not cured within the time period specified
herein, such Event of Default shall, without further notice from Licensor, become
an "Uncured Default" and Licensor may immediately, at the same time or at
different times, on the occurrence of an Uncured Default, terminate this
Agreement. Upon such termination, Licensee shall forfeit all rights granted to it
under this Agreement, and, except as to Licensee's unperformed obligations and
existing liabilities as of the date of termination, this Agreement shall
automatically be deemed null and void and shall have no further force or effect.
Licensee shall remain obligated to pay and Licensor shall retain the right to
receive License Fees and any other payments due hereunder up to the date of
termination. Licensee shall, if requested by the Licensor, remove the
Telecommunications System from and restore the surface of Licensor's property
as soon as reasonably possible, to as good or better condition than the original
grade, level, and condition existing prior to Licensee's activity. Licensor's right to
terminate this Agreement under this Section does not and shall not be construed to
constitute any kind of limitation on Licensor's right to terminate this Agreement
for other reasons as provided by and in accordance with this Agreement,
including an action at law for monetary damages or in equity, for injunctive relief
or specific performance of any of the provisions of this Agreement which, as a
matter of equity, are specifically enforceable.
13. Licensee may not assign or otherwise transfer any of its rights or obligations under
this Agreement unless specifically authorized in writing by Licensor, which
authorization shall not be unreasonably withheld, conditioned or delayed. Any
assignment or transfer shall not become effective unless the assignee or transferee
agrees to accept the rights and obligations imposed upon Licensee herein.
I4. This Agreement shall be construed pursuant to and in accordance with the laws of
the United States and the State of Texas. If any action, whether real or asserted, at
law or in equity, arises out of the terms of this Agreement, venue for such action
shall lie exclusively in state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas, Fort Worth Division.
_4
1 S. Notwithstanding any provision herein, in the event that Licensor determines it is
necessary to widen or reconstruct Dove Road or White Chapel Road and
Licensee's Telecommunications System interferes with such project, in
Licenser's sole opinion, Licensor may terminate this Agreement by giving
Licensee eighteen months' notice.
15. This Agreement shall become effective upon the last to occur of the following: (i)
execution of this Agreement by both parties and (ii) Licensor's approval of the
form of the Indefeasible Right of Use Agreement pursuant to which Licensee
shall grant Licensor and indefeasible right to use six (b) fiber optic cable strands
as provided in Section 3 hereof (the "Effective Date ").
IN WITNESS WHEREOF, Licensor and Licensee have entered into this Agreement
effective the day and year above set forth.
WITNESSES-
1 1 1 - 1 , 1t:
WITNESSES:
I'r] Tit .
LICENSOR:
CITY OF SOUTHLAKE, TEXAS
M
LICENSEE:
WILTEL COMMUNICATIONS, LLC
BY:
Print: DAVID NILSSON, Director of Real
Estate
E
ACKNOWLEDGEMENTS
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority in and for said County, Texas, on this
day personally appeared Mayor Andy Wambsganss, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that the same
was executed for the purposes and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of
, 2005.
Notary Public in and for the State of Texas
My Commission Expires:
Typed or Printed Name of Notary
STATE OF OKLAHOMA §
COUNTY OF TULSA §
BEFORE ME, the undersigned personally appeared David Nilsson, Director of
Real Estate for WilTel Communications, LLC, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that the same
was executed for the purposes and consideration therein expressed, and in the capacity
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _ _ day of
. 2005
Notary Public in and for the State of Oklahoma
My Commission Expires:
Typed or Printed Name of Notary
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westr) aloe the above said
U 4y 3 T �G V. ;y l circular curve to the right thru a central angle of 15° 19' 50"
an arc distance of 324.54 feet and having a chord bearing and
distance of S 83 11' 20 W, 323.59 feet to a 1/2" iron rod set
for the point of tangency;
THENCE N 89" 08' 45" W, 364.23 feet to a 1/2 iron rod set for a
BEING a 0.0993. acre 5.0 wide easement out of the R.D. Price corner in the above referenced east line of Kirkwood Boulevard;
Survey, Abstract No. 1207 and being a part of a 20 foot strip of THENCE N 0 25 42 E, along the above said east line of Kirkwood
land dedicated to the City of Southlake, Texas for Park land by Boulevard, 5.00 feet to the PLANT CF BEGINNING and CONTAINING
the plat of Kirkwood Hollow Phase III, an addition tc the City of 43250 square feet or 0.0993 acres of land.
Southlake, Texas, as recorded in Cabinet A, Slide 7474 and 7475
of the Plat Records of Tarrant County, Texas, said tract being
more particularly described as follows:
BEGINNING at a 5/8" capped iron rod found for a corner in the
east right- of--way line of Kirkwood Boulevard (110 teet wide) at
its intersection with the north line of above said 20 foot Park
Land Dedication;
THENCE 5 89 08' 45" E, along the north line of the above said
Park Land and the southerly line of Block 2 of above said
Kirkwood Hollow Phase III addition, 364.27 feet to a found capped
iron rod for the beginning of a circular curve to the left having
a radius of 1208.00 feet;
THENCE Southeasterly to Northeasterly, continuing along the above
said southerly line of Block 2 and with above said circular curve
to the left thru a central angle of 15 19' 50 " an arc distance
of 323.22 feet to a found capped iron rod;
THENCE N 77 18' 24" R, 163.28 feet to a 1/2" iron rod set for a
corner;
THENCE N 0 10' 50" E, 9.04 feet to a 1/2" iron rod set for
corner in the southerly line of Lot 18, Block 2 of the above
referenced Kirkwood Hollow Phase III addition;
THENCE N 74 15' 17" B, along the above said southerly line of
Lot 18, 5.20 feet to a 1/2" iron rod set for a corner in the West
line of a tract of land as conveyed to the City of Scuthlake,
Texas, by deed as recorded in volume 7354, Page 934 of the.Deed
Records of Tarrant County, Texas;
THENCE S 0 10' 50" W, along the above said west line line of the
City of Southlake tract, 14.45 feet to a 1/2" iron rod set for a
corner;
THENCE S 77 18' 24" w, 167.11 feet to a 112" iron rod set for
a point in a circular curve to the right having a radius of
1213.00 feet;
This is to certify that this plat and description were prepared
from an actual survey on the ground of the above described
property, and that the corners and points of curve wera correctly
placed under my direction.
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Bearings based on monu t` and the recorded plat of
u;rkwood Hallow Phase
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P L A T O F EASEMENT
Part of
PARK LAND PROPERTY
6tIRKWIfOOD HOLLOW PHASE III
City of Southlake, Texas
R. U. Price Survey, Abstract No. 12D7
TARRANT COUNTY, TEXAS
for
Witte]
Drommer & Associates, Inc.
Engineers & Surveyors
9202 Markville
Dallas, Texas 75243
972 231 -8721
January, 2005
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BEING a 0.0456 acre 5.0 wide easement out of the R. D, Price
Survey, Abstract No. 1207 and being a part of a 30 foot strap of
land dedicated to the City of Southlake, Texas for Park land by
the plat of Kirkwood Hollow Phase III, an addition to the City of
southlake, Texas, as recorded in Cabinet A, Slide 7474 and 7475
of the Plat Records of Tarrant County, Texas, said tract being
more particularly described as follows:
BEGINNING at a 1/2" iron rud set for a corner in the east line of
Block 2 of above said Kirkwood Hollow Phase III addition said
point being N 1 23" 22" E, 113.00 feet from a capped iron rod
found for the most southeasterly corner of Lot 17, Block 2, of
said addition;
THENCE: N 1` 23' 22" E, along the above said east line of Block 2
of Kirkwood Hollow Phase III addition and the west line of above
said Park Land, 372.37 feet to a 1/2 iron rod set for a corner;
THENCE N 88 36' 38" E, 30.00 feet to a 1/2" iron rod set for a
corner in the west right -of -line of N. White Chapel Boulevard and
the east line of the Park Land property;
THENCE S 1 23' 22" W, along the above said west line of N. white
Chapel Boulevard and the above said east line of Park Land
property, 5.00 feet to a 1/2" iron rod set for a corner;
THENCE N 88 36' 38" W, 25.00 feet to a 1/2" iron rod set for a
corner;
THENCE S 1 23' 22" W, 367.37 feet to a 1/2" iron rod set for a
corner;
THENCE N 88 36' 38" W, 5.00 feet to the POINT OF BEGINNING and
CONTAINING 1987 square feet or 0.0456 acres of land.
This is to certify that this plat and description were prepared
from an actual survey on the ground of the above described
property, and that the corners and points of curve were placed
under any direction,
bearings based on mon yd and the recorded
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Kirkwood Hollow Phase I �k� ``7 F +'
J.H. Williams _ rY 4 ,,LA° Pate
Registed Professional o
Land Surveyor
plat of
P L A T O F EASEMENT
Part of
i'ARK LA ERTY
KIRKWOOD HOLLOW PHASE III
City of Southlake, Texas
R D. Price Survey, Abstract No. 1207
TARRANT COUNTY. TE=XAS
for
W 11te{
Drommer 8a Associates, Inc.
Engineers & Surveyors
9202 Markvifle
Dallas, Texas 75243
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BEING a 0.0456 acre 5.0 wide easement out of the R. D, Price
Survey, Abstract No. 1207 and being a part of a 30 foot strap of
land dedicated to the City of Southlake, Texas for Park land by
the plat of Kirkwood Hollow Phase III, an addition to the City of
southlake, Texas, as recorded in Cabinet A, Slide 7474 and 7475
of the Plat Records of Tarrant County, Texas, said tract being
more particularly described as follows:
BEGINNING at a 1/2" iron rud set for a corner in the east line of
Block 2 of above said Kirkwood Hollow Phase III addition said
point being N 1 23" 22" E, 113.00 feet from a capped iron rod
found for the most southeasterly corner of Lot 17, Block 2, of
said addition;
THENCE: N 1` 23' 22" E, along the above said east line of Block 2
of Kirkwood Hollow Phase III addition and the west line of above
said Park Land, 372.37 feet to a 1/2 iron rod set for a corner;
THENCE N 88 36' 38" E, 30.00 feet to a 1/2" iron rod set for a
corner in the west right -of -line of N. White Chapel Boulevard and
the east line of the Park Land property;
THENCE S 1 23' 22" W, along the above said west line of N. white
Chapel Boulevard and the above said east line of Park Land
property, 5.00 feet to a 1/2" iron rod set for a corner;
THENCE N 88 36' 38" W, 25.00 feet to a 1/2" iron rod set for a
corner;
THENCE S 1 23' 22" W, 367.37 feet to a 1/2" iron rod set for a
corner;
THENCE N 88 36' 38" W, 5.00 feet to the POINT OF BEGINNING and
CONTAINING 1987 square feet or 0.0456 acres of land.
This is to certify that this plat and description were prepared
from an actual survey on the ground of the above described
property, and that the corners and points of curve were placed
under any direction,
bearings based on mon yd and the recorded
{
Kirkwood Hollow Phase I �k� ``7 F +'
J.H. Williams _ rY 4 ,,LA° Pate
Registed Professional o
Land Surveyor
plat of
P L A T O F EASEMENT
Part of
i'ARK LA ERTY
KIRKWOOD HOLLOW PHASE III
City of Southlake, Texas
R D. Price Survey, Abstract No. 1207
TARRANT COUNTY. TE=XAS
for
W 11te{
Drommer 8a Associates, Inc.
Engineers & Surveyors
9202 Markvifle
Dallas, Texas 75243
Aerial Exhibit
Green shading = existing 20' Ilinear park
Magenta line = proposed 5' utility easement
N
W+ E
S
300 0 300 500 Feet