CoServ-AG010327H E C 1 T Y O F
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AGENDA REQUEST FORM
x A s 1 5 CITY COUNCIL MEETING: March 27, 2001 ITEM # —7
ITEM CAPTION:
Consider approval of an Interim Right -of -way Use Agreement between the City of Coppell and CoSery
Communications for the use of right -of -way to install telecommunication lines and related appurtenances;
and authorizing the City Manager to sign.
Af'PHO VED
BY
CITY OUNCIL
DATE - Z1 -o/
SUBMITTED BY: ichael A. Martin, P.E.
TITLE: Assistant City Engineer
STAFF COMME S:
Robert E. Hagar, City Attorney is bringing forth this agreement for consideration.
Staff will be available to answer any questions at the Council meeting.
BUDGET AMT. $ AMT. EST. $
FINANCIAL COMMENT6:
DIR. INITIALS: k7 FIN. REVIEW:
+\ -BID $
CITY MANAGER REVIEW:
Agenda Request Form - Revised 5100 Document Name: #engl
INTERIM PUBLIC RIGHT -OF -WAY USE AGREEMENT
BETWEEN THE CITY OF COPPELL AND COSERV COMMUNICATIONS
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 CoSery Communications ( "Company "), a Texas Company, acting by and
through its authorized representative.
The following statements are true and correct and constitute the basis of this Agreement:
A. Company is a fiber optic network company or privoder.
B. In accordance with and subject to the ordinances of the City and laws of the State
of Texas, a company may construct conduit, cable, switches and related appurtenances and
facilities and excavate within the Public Rights -of -Way in order to provide fiber optic network or
service, other than Cable Services. Company wishes to excavate in the Public Rights -of -Way in
order to provide services other than Cable Services in the City.
C. In accordance with the laws of the State of Texas, a municipality may exercise
police power -based regulations in the management of the use of its Public Rights -of -Way 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.
DEFIMTIONS
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.
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.
39960
Certificated Telecommunications Provider shall mean the same as it is defined in the
Local Government Code, Chapter 283.
Company shall mean CoServe Communications.
City shall mean the 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
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.
2 39960
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 Apnlic� ation.
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. Upon
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 City Ordinances on construction in the Public
Rights -of -Way, and such ordinances the Company acknowledges it has either reviewed
or had an opportunity to review.
3 39960
4. 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 Codeif it is or becomes a Certified
Telecommunications Provider.
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, and such fee shall be exclusive of any other
appropriate fee required by the enactment of the Right -of -Way Ordinance, as amended.
5. TERM
This Agreement shall become effective on the date of its execution ( "Effective Date "),
and shall terminate upon the effectiveness of a City ordinance governing the use of the Public
Rights -of -Way public utilities or others.
6. CABLE SERVICES AND OPEN VIDEO SYSTEMS PROHIBITED
Unless otherwise specifically allowed by law, Company shall not provide Cable Service
or an Open Video System through its Facilities or initiate construction of a 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 or (ii) mailed through
the United States Postal Service, postage paid, certified mail, return receipt requested, 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
4 39960
TO COMPANY:
President
CoSery Communications
8. COMPLIANCE WITH LAWS
WITH A COPY TO:
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.
lo. 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. CnNFERENCES
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.
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.
5 39960
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 COPPJ,LL, TEXAS
By:
Jim
Cit0dal
ATTEST:
Libby Ba City Secretary
APPROVED
Robert E.
FORM:
Attorney
COSERV COMMUNICATIONS
By: _
Name:
Title:
APPROVED AS TO FORM:
By:
(Legal Counsel for CoSery
6 39960
INTERIM PUBLIC RIGHT -OF -WAY USE AGREEMENT
BETWEEN THE CITY OF COPPELL AND COSERV COMMUNICATIONS
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 CoSery Communications ( "Company "), a Texas Company, acting by and
through its authorized representative.
The following statements are true and correct and constitute the basis of this Agreement:
A. Company is a fiber optic network company or privoder.
B. In accordance with and subject to the ordinances of the City and laws of the State
of Texas, a company may construct conduit, cable, switches and related appurtenances and
facilities and excavate within the Public Rights -of -Way in order to provide fiber optic network or
service, other than Cable Services. Company wishes to excavate in the Public Rights -of -Way in
order to provide services other than Cable Services in the City.
C. In accordance with the laws of the State of Texas, a municipality may exercise
police power -based regulations in the management of the use of its Public Rights -of -Way 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.
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.
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.
39960
Certificated Telecommunications Provider shall mean the same as it is defined in the
Local Government Code, Chapter 283.
Company shall mean CoServe Communications.
City shall mean the 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. PERNUT
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.
2 39960
3. PREREQUISITE' ) 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. Upon
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 City Ordinances on construction in the Public
Rights -of -Way, and such ordinances the Company acknowledges it has either reviewed
or had an opportunity to review.
39960
3
4. 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 Codeif it is or becomes a Certified
Telecommunications Provider.
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, and such fee shall be exclusive of any other
appropriate fee required by the enactment of the Right -of -Way Ordinance, as amended.
5. TERM
This Agreement shall become effective on the date of its execution ( "Effective Date "),
and shall terminate upon the effectiveness of a City ordinance governing the use of the Public
Rights -of -Way public utilities or others.
6. CABLE SERVICES AND OPEN VIDEO SYSTEMS PROHIBITED
Unless otherwise specifically allowed by law, Company shall not provide Cable Service
or an Open Video System through its Facilities or initiate construction of a 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 or (ii) mailed through
the United States Postal Service, postage paid, certified mail, return receipt requested, 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
4 39960
TO COMPANY:
President
CoSery Communications
8. COMPLIANCE WITH LAWS
WITH A COPY TO:
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.
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.
12. SEVERARELITY
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.
5 39960
INTERIM PUBLIC RIGHT -OF -WAY USE AGREEMENT
BETWEEN THE CITY OF COPPELL AND COSERV COMMUNICATIONS
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 CoSery Communications ( "Company "), a Texas Company, acting by and
through its authorized representative.
The following statements are true and correct and constitute the basis of this Agreement:
A. Company is a fiber optic network company or privoder.
B. In accordance with and subject to the ordinances of the City and laws of the State
of Texas, a company may construct conduit, cable, switches and related appurtenances and
facilities and excavate within the Public Rights -of -Way in order to provide fiber optic network or
service, other than Cable Services. Company wishes to excavate in the Public Rights -of -Way in
order to provide services other than Cable Services in the City.
C. In accordance with the laws of the State of Texas, a municipality may exercise
police power -based regulations in the management of the use of its Public Rights -of -Way 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.
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.
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.
39960
Certificated Telecommunications Provider shall mean the same as it is defined in the
Local Government Code, Chapter 283.
Company shall mean CoServe Communications.
City shall mean the 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
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.
2 39960
PREREOUISITES 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. Upon
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 City Ordinances on construction in the Public
Rights -of -Way, and such ordinances the Company acknowledges it has either reviewed
or had an opportunity to review.
39960
4. 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 Codeif it is or becomes a Certified
Telecommunications Provider.
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, and such fee shall be exclusive of any other
appropriate fee required by the enactment of the Right -of -Way Ordinance, as amended.
5. TERM
This Agreement shall become effective on the date of its execution ( "Effective Date "),
and shall terminate upon the effectiveness of a City ordinance governing the use of the Public
Rights -of -Way public utilities or others.
6. CABLE SERVICES AND OPEN VIDEO SYSTEMS PROHIBITED
Unless otherwise specifically allowed by law, Company shall not provide Cable Service
or an Open Video System through its Facilities or initiate construction of a 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 or (ii) mailed through
the United States Postal Service, postage paid, certified mail, return receipt requested, 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
4 39960
TO COMPANY:
President
CoSery Communications
8. COMPLIANCE WITH LAWS
WITH A COPY TO:
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.
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.
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.
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