Loading...
CoServ-AG010327H E C 1 T Y O F ply r 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. 5 39960