Time Warner-CS000711MP
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AGENDA REQUEST FORM
CITY COUNCIL MEETING: July 11, 2000 ITEM #
ITEM CAPTION:
Consider approval of an Interim Right -of -way Use Agreement between the City of Coppell and AT &T for
use of the right -of -way to install telecommunications lines and related appurtenances; and authorizing the
Mayor to sign.
APPROVED
BY
CITY COUNCIL.
DATE -/1-120-
SUBMITTED BY: Michael A. Martin, P.E.
TITLE: Asst. City Engineer
STAFF COMMENTS:
Robert E. Hager, City Attorney is bringing forth this agenda item for consideration. He will be available to
answer any questions at the Council meeting.
BUDGET AMT. $
FINANCIAL COMMENTS:
DIR. INITIALS:
Agenda Request Form - Revised 5100
AMT. EST. $
FIN. REVIEW:
+\ -BID $ '
CITY MANAGER REVIEW:
Document Name: #07111
INTERIM PUBLIC RIGHT -OF -WAY USE AGREEMENT
BETWEEN THE CITY OF COPPELL, TEXAS AND TCG DALLAS,
A CERTIFICATED TELECOMMUNICATIONS PROVIDER
This Public Right -of -Way Use Agreement ("Agreement") is hereby made and entered
into 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 TCG DALLAS ( "Company ").
The following statements are true and correct and constitute the basis of this Agreement:
A. Company is a Certificated Telecommunications Provider ( "CTP "). A copy of
Company's certificate of convenience and necessity, certificate of operating authority or special
provider certificate of operating authority is attached hereto as Exhibit "A" and hereby made a
part of this Agreement for all purposes.
B. In accordance with Chapter 283 of the Loc. Gov't. Code, a CTP is entitled to
construct conduit, cable, switches and related appurtenances and facilities and excavate within
the Public Rights -of -Way in order to provide telecommunications services other than Cable
Services. Company wishes to excavate in the Public Rights -of -Way in order to provide
telecommunications services other than Cable Services in the City.
C. In accordance with Chapter 283 of the Loc. Gov't. Code, a municipality may
exercise police power -based regulations in the management of the use of its Public Rights -of-
Way by a CTP in order to protect the health, safety and welfare of the public. The City wishes to
set forth reasonable regulations and requirements in this Agreement for the use of the Public
Rights -of -Way by Company and Company is willing to abide by such regulations.
1. DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined within this
Agreement shall have the following meanings:
Access Line shall mean, unless the PUC adopts a different definition pursuant to Section
283.003 of the Texas Local Government Code, the same as in Local Government Code, Chapter
283.
Act shall mean the Federal Communications Act of 1934, as amended by the
Telecommunications Act of 1996.
Affiliate shall mean any individual, partnership, association, joint stock company limited
liability company, trust, corporation, or other person or entity who owns or controls, or is owned
or controlled by, or is under common ownership or control with, the entity in question.
Cable Services shall mean the same as it is defined in the Federal Communications Act
of 1934, as amended by the Telecommunications Act of 1996.
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Cable Television System shall mean the same as it is defined in the Federal
Communications Act of 1934, as amended by the Telecommunications Act of 1996.
Certificated Telecommunications Provider shall mean the same as it is defined in the
Local Government Code, Chapter 283.
Company shall mean TCG DALLAS
City shall mean the land area within the corporate limits of the City of Coppell, Texas.
Director shall mean the Director of the City's Engineering Services Department or
authorized representative.
Facilities shall mean all facilities placed in, on, under or above the Public Right -of -Way
by or on behalf of Company, including, but not limited to, duct spaces, manholes, poles, conduit,
underground and overhead passageways, and other equipment, structures and appurtenances and
all associated physical devices in the Public Rights -of -Way used by Company for purposes other
than the provision of Cable Services.
FCC shall mean the Federal Communications Commission.
Person shall mean an individual, a corporation, a limited liability company, a general or
limited partnership, a sole proprietorship, a joint venture, a business trust or any other form of
business entity or association.
Public Rights -of -Way shall mean the same as it is defined in the Local Government
Code, Chapter 283.
PUC shall man the Public Utility Commission of Texas.
Open Video System shall mean the same as it is defined in Title 47, Code of Federal
Regulations, Section 76.1500.
2. PERMIT
Except in case of an emergency, Company shall not initiate or have initiated any kind of
construction, installation, maintenance, repairs or other work that requires the excavation, lane
closure, or other physical use of the Public Rights -of -Way unless company first obtains a
respective permit ("Permit ") from the Director. The City will provide the Permit to Company
free of charge following (i) full compliance with the prerequisites set forth in Section 3 of this
Agreement and (ii) the Director's review of Company's Permit application within a reasonable
time following its submission to the Director.
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3. PREREQUISITES TO ISSUANCE OF CONSTRUCTION PERMIT
3.1 Registration.
In order for the City to know which CTPs own Facilities in the City's Public
Rights -of -Way, Company shall register with the City Manager and provide the following
information at a minimum: (i) Company's name and (ii) the current name, address, and
telephone number(s) of a contact employed by and with binding and decision - making
authority for the Company and who is available twenty -four (24) hours per day.
Company shall update and keep current its registration with the City at all times.
3.2 Application.
Company shall submit an application for a Permit, including plan documents, to
the Director at least ten (10) working days prior to the commencement of the respective
use of the Public Rights -of -Way except (i) where waived by the Director in writing or (ii)
in the event of an emergency response related to an existing Facility owned by Company.
The Permit application shall include the following information at a minimum: (i) the
name of Company; (ii) the current name, address and telephone number(s) of a contact
employed by and with binding and decision - making authority for the Company and who
is available twenty -four (24) hours per day; (iii) the name, address and telephone
number(s) of any contractor or subcontractor that will be performing work in, on or
above the Public Rights -of -Way; (iv) the proposed location of any construction and route
of all Facilities that Company intends to install in, on, or above the Public Rights -of-
Way; (v) the construction and/or installation methods that Company intends to employ in
order to protect existing structures, fixtures and facilities within or adjacent to the
portions of the Public Rights -of -Way that will be affected by Company's respective
project; (vi) the dates and times that Company wishes to use the Public Rights -of -Way;
(vii) shall submit detailed engineering drawings to scale, no larger than 24" x 36" which
depicts the Right of Way width, street width and the location of the water, sanitary sewer
and storm drainage systems currently located in such Right -of -Way; and (viii) proof of
insurance and bonding requirements as required by applicable City Ordinances. Within
ninety (90) days of completion of construction, Company shall provide the Director
copies of the "as built" documents for each installation in the Rights -of -Way.
3.3 Executed Public Right -of -Way Use Agreement.
Company shall provide the Director with a fully executed copy of this Agreement
upon submission of Company's Permit application.
3.4 Compliance With All City Ordinances.
Company agrees to comply with all lawful City Ordinances on construction in the
Public Rights -of -Way.
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5.
MUNICIPALITIES
4.1 Sunset.
Company shall pay the City a quarterly fee calculated monthly and based upon
the Access Line rates for the City adopted by the PUC in accordance with Section
283.055 of the Texas Local Government Code. This Section 4.2 shall not abrogate or
affect Company's obligation to pay the City the Fee calculated in accordance with
Section 4.1 for the period of time between the effective Date of this Agreement and the
date on which the PUC adopts Access Line rates for the City.
4.2 When Due.
Company shall pay the Fee on a calendar quarterly basis to the City at the address
provided in Section 7 of this Agreement. The Fee shall be due within forty -five (45) days
following the last day of each quarter.
TERM
This Agreement shall become effective on the date of its execution ( "Effective Date "),
and shall terminate upon the earlier of (i) the effectiveness of a City ordinance governing the use
of the Public Rights -of -Way by CTPs and other public utilities or (ii) implementation by the
Company of PUC established Access Line rates for the City, as provided in Section 283.055 of
the Texas Local Government Code.
6. CABLE SERVICES AND OPEN VIDEO SYSTEMS PROHIBITED
Company shall not provide Cable Service or an Open Video System through its Facilities
or initiate construction of Cable System or Open Video System in the Public Rights -of -Way
without a franchise awarded by the City in accordance with the Act.
7. NOTICES
Any notices required pursuant to the provisions of this Agreement or provided by the
City or Company to the other shall be (i) hand - delivered to the other party, (ii) mailed through
the United States Postal Service, postage paid, certified mail, return receipt requested, or (iii)
send via reputable national overnight mail carrier or delivery service addressed as follows:
TO THE CITY:
Jim Witt, City Manager
City of Coppell
P.O. Box 478
255 Parkway Boulevard
Coppell, Texas 75019
WITH A COPY TO:
Robert E. Hager, City Attorney
NICHOLS, JACKSON, DILLARD,
HAGER & SMITH, LLP
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
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TO COMPANY:
TCG DALLAS
717 N. Harwood
Dallas, Texas 75201
ATTN: Outside Plant Manager
8. COMPLIANCE WITH LAWS
WITH A COPY TO:
General Counsel
TCG Dallas
431 Ridge Road
Dayton, New Jersey 08810
Company agrees to comply with all federal, state and local laws; all ordinances, rules and
regulations of the City, and all rules and regulations established by the Director in order to
protect the public health, safety and welfare.
9. NO WAIVER
The failure of the City to insist upon the performance of any term or provision of this
Agreement or to exercise any rights that the City may have, either under this Agreement or the
law, shall not constitute a waiver of the City's rights to insist upon appropriate performance or to
assert any such right on any future occasion. No provision of this Agreement is intended to
waive any right or obligation that either party may have under state or federal law.
10. GOVERNING LAW AND VENUE
This Agreement shall be construed pursuant to and in accordance with the laws of the
United States of America 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 court located in Dallas County, Texas, or the United States District court for the Northern
District of Texas, Dallas Division, unless otherwise provided by law.
11. CONFERENCES
At the request of either the City or Company, the City and Company shall meet at
reasonable times and upon reasonable notice to discuss any aspect of this Agreement or
Company's use of the Public Rights -of -Way.
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12. SEVERABILITY
If any provision of this Agreement is held to be invalid, illegal or unenforceable by a
final order entered by a court of competent jurisdiction, the validity, legality or enforceability of
the remaining provisions shall not in any way be affected or impaired. For purposes of this
Agreement, a court order shall be final only to the extent that all available legal rights and
remedies pertaining to such order, including, without limitation, all available appeals, have been
exhausted.
13. HEADINGS NOT CONTROLLING
Headings and titles that are used in this Agreement are for reference purposes only and
shall not be deemed a part of this Agreement.
14. ENTIRETY OF AGREEMENT
This Agreement contains the entire understanding and agreement between the City and
the Company as to the matters contained herein. Any prior or contemporaneous oral or written
agreement is hereby declared null and void to the extent in conflict with the terms and conditions
of this Agreement. This Agreement shall not be amended unless agreed to in writing by both
parties.
CITY OF COPPELL, TEXAS TCG DALLAS
By: By:
Jim Witt Name: V4i c H A A P- L`L
�tyManager Title:
ATTEST:
Libby B 11, City Secretary
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