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HomeMy WebLinkAboutORD 1999-067 _ ORDINANCE NO. 99-67 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS, GRANTING A MUNICIPAL CONSENT AGREEMENT 1MTH COSERV COMMUNICAl10NS TO PROVIDE TELECOMMUNICATIONS SERVICES WITHIN THE CITY OF GRAPEVINE; PROVIDING FOR ACCEPTANCE; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Grapevine ("City") seeks to facilitate competition in the provision of Telecommunications Services on a competitively neutral basis and to encourage the availability of such services to all residences and business within the City; and WHEREAS, the City, pursuant to federal law and state statutes, may consent to one or more non-exclusive agreements to construct and maintain a Telecommunications Network in the public rights-of-way within the municipal boundaries of the City; and - � WHEREAS, the City adopted Ordinance No. 99-30 ("Telecommunications Ordinance") which establishes the rules and regulations governing the use of City public �--�� rights-of-way by providers of telecommunications services, sets fees for the use of City public rights of way, and provides for the Municipal Consent procedures and construction obligations; and WHEREAS, CoServ Communications ("Provider") is now and has been engaged in the telecommunications business in the State of Texas; and WHEREAS, Provider has applied for a Municipal Consent Agreement with the City to maintain, operate and construct its physical plant in the public rights-of-way within the City and said application has been reviewed and approved by staff. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That all matters stated in the preamble are found to be true and correct and are included herein as if copied in their entirety. Section 2. That the City Council of the City of Grapevine hereby approves the Municipal Consent Agreement with Provider for a period of three (3) years. �� Section 3. That the Municipal Consent to Use the Public Rights of Way Agreement is attached as Exhibit "A". Section 4. That the Mayor is authorized to execute the Municipal Consent Agreement on behalf of the City. Section 5. That all other ordinances and agreements and parts of ordinances and agreements in conflict with the provision of this ordinance are hereby repealed. Section 6. That the provider shall have thirty (30) days from and after the passage and approval of this ordinance to file its written acceptance thereof with the City Secretary, and after such acceptance is filed, this ordinance shall take effect and be in force from and after July 1, 1999. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on first reading on this the 23rd day of March, 1999. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on second reading on this the 4th day of May, 1999. ACCEPTED: � William D. Tate Mayor ATTEST: �lxc� Lind Huff City Secretary APPROVEq AS TO FORM � ! . Stan Lowry f= City Attorney �:.�� ORD. NO. 99-67 2 -.n � COSERV NAME: Jim Chism TITLE: Manager DATE OF ACCEPTANCE: May 18, 1999 � �� ORD. NO. 99-67 3 EXHIBIT�. TO ���'� 9�� Page —L._ of _--�.—�-- CITY OF GRAPEVINE, TEXA.S MLINICIPAL CONSENT TO LISE THE PLIBLIC RIGHTS-OF-WAY TELECOiVIMUNICATIONS SERVICE PROVIDER: CoServ Communications,Inc. CONTACT NAME: Jim Chism, Manager � TELEPHONE NUIVIBER: 817 430-1195 �.}.� ADDRESS: 3501 FM 2181 CITY/STATE/ZIP CODE: Corinth,TX 76205 EFFECTIVE DATE: June 1, 1999* EXPIRATION DATE: June 1, 2002 THIS CONSENT IS AUTHORIZED BY ORDINANCE NO.: s9-6� ADOPTED ON: May 4, 1999 *If materials are received in City Manager's Office by Febniary 19`", 1999 in order to be placed on City Council agenda March 2, 1999. �,.y E�HIpIT..� TO " � Page ._.rz�.- of � Municipal Consent to Use the Public Rights-of-VVay 1. PURPOSE AND INTE�VT. THIS NIUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-Or-tiVAY (the "Consent") is made and entered into as of June 1, 1999, (the "Effective Date") by and bet�veen the City of Grapevine, Texas, a city duly organized under the applicable laws of the State of Texas, (hereinafter referred to as "City"), and Coserv Communications, Inc. [Telecommunication Company] ("Provider"); WHEREAS, the City,.pursuant to federal law, state statutes, and local ordinances, may consent to one or more non-exclusive agreements to construct and maintain a Telecommunication Network in the Public Rights-of-�vay�vithin the municipal boundaries of the City as designated in Exhibit ��A�� ���Clty AI'e�l���� and� WHEREAS, as applicable, the definitions of all words not defined herein shall be as used in the Telecommunications Chapter of the Code of Ordinances,«�hich is incorporated herein for all purposes (Telecommtmication Ordinance); - ° WHEREAS, the Provider has acknowledged the terms and conditions of the Telecommunications Ordinance and understands that it is bound by them; �� NOW, TI3EREFORE, Provider a�rees to abide by the ternis and conditions of this Telecommunications Ordinance, as follows: 2. SCOPE OF CITY CONSENT. The City hereby grants to the Provider, for a period of three (3) years from and after the Effective Date of this Consent (the "Term"), the non-exclusive right to construct, use, operate, own and maintain a Telecommunication Network in, on, under and over the PuUlic Rights-of-Way, as described in Exhibit "A," subject to applicable law, under the terms and conditions specifically set forth in the Telecommunications Ordinance. 3. AUTHORI'IYNOTEXCLUSIVE. This Consent and the �rant conferred in Section 2 abo�•e are not exclusive, pursuant to the Telecommunication Ordinance. The Provider shall respect the rights and property of the City and other authorized users of the Public Rights-of-Way. ,�<;.� 4. FEES AND COMPENSATZON. - 2 - : EXyIBIT� T0� � � - ' �a�e of From and after the Effective Date of this Consent and throu�hout the full term of this Consent, the Provider shall promptly pay to the City all fees and compensation pursuant to the # Telecommunication Ordinance. S. CONSTRUCTIO�V OF THE TELECONI�tilUNICATIONNETI�ORK. 5.1 Provider shall comply with the Telecommunication Network constniction requirements in accordance�vith the appropriate sections of the Telecoinmunication Ordinance. 5.2 Pei-mits Required - Provider shall not constnict, reconstnict, or relocate the Telecommuiucation Nerivork(or parts thereo fl witlun the Public Rights-of-Way or on City Property unless authority has Ueen obtained in accordance with the Telecommunications Ordinance, or other applicable City Ordinances. 5.3 Plan Review - Provider shall not commence construction unless and until all maps and other documents are provided to the City, in accordance with the Telecommunications Ordinance. 5.4 Construction Standards - Provider shall comply with construction standards in the Telecommunications Ordinance. �x� 5.5 Inspections - The Yrovider shall permit the City to conduct inspections of � construction or installation being perfornied to ensure compliance with the Telecominunications Ordinance. 5.6 Scheduling - The Provider shall provide the City advance notice before beginning construction or installation, except in the case of emergency, pursuant to the Telecommunications Ordinance. 5.7 Restoration oFProperty-At its o�vn cost and eYpense,Provider shall promptly restore property disturbed by Provider's activities, pursuant to tlle Telecommunications Ordinance. 5.8 Removal or Relocation of Facilities - The Provider shall remove or relocate the Telecommunications Net�vork as required by the Telecommtmications Ordinance. 5.9 Installations on City Property - No cable line, wire, amplifier, converter, or other piece of equipment owned by the Provider shall be installed by the Provider in the Public Rights-of- Way or on any City property without first securing the written permission of the city and/or lawfiil \ occupant of any property involved. 5.10 Boolcs and Records - The Provider shall keep books and records as required by the ��:.,,� Telecommunications Ordinance and in accordance with generally accepted accounting principles. � - 3 - : EXHIBIT� TO .��� ' �� Page ,.�. .of - 6. TREE TRI�tiI�tilING. .��.� With reasonable prior written notice, the Provider may trim trees or other vegetation owned by the City or encroaching upon the Public Rights-of-Way to prevent their Uranches or leaves from touching or otherwise interfering with its wires. All trimming or pnining shall be at the sole cost of the Provider. 7. REPORTS. 7.1 The Provider shall make available to the City such infornlation or reports, as required Uy the Telecommunications Ordinance. 7.2 The Provider shall allow the City to malce inspections of any of the Provider's facilities and equipment located �vitliin the Public Rights-of-Way with sufFicient notice as to not disnipt the operations of the Provider. 8. INDEMNITYAND INSURANCE. (a) The Provider shall comply with applicable sections of the Telecommunication Ordinance governing insurance. _ � (b) THE PROVIDER AGREES TO PROMPTLY DEFEND, INDElYINIFY AND HOLD THE CITY HARMLESS FR01�1 AND AGAINST ALL DAMAGES, � COSTS, LOSSES OR�XPENSES (i) FOR THE REPAIR, REPLACEMENT, OR RESTOR�,TION OF CITY'S PROPERTY,EQUIPM�NT,MATERIALS, STRUCTURES AND FACILITIES WHICH ARE DAIVIAGED, DESTROYED OR FOUND TO BE DEFECTIVE SOLELY AS A RESULT OF THE PROVID�R'S ACTS OR OMISSIONS, (ii) FROM AND AGAINST ANY AND ALL CLAINIS, DEMANDS, SUITS, CAUSES OF ACTION, AND JUDGMENTS FOR (a) DAMAGE TO OR LOSS OF THE PROPERTY OF ANY PERSON (INCLUDING, BUT NOT LIMITED TO T�IE PROVIDER, ITS AG�NTS, OI'FICERS, EMPLOYEES AND SUBCONTRACTORS, CITY'S AGENTS, OFFICERS AND EMPLOYEES,AND THIRD PARTIES); AND/OR (b) D�ATH, BODILY INJURY, ILLNESS, DISEASE, LOSS OF SERVICES, OR LOSS OF INCOME OR WAGES TO ANY PERSON (INCLUDING, BUT NOT LIMITED TO THE AGENTS, OFFICERS AND ENIPLOY��S OF THE PROVIDER, PROVIDER'S SUBCONTRACTORS AND CITY, AND THIRD PARTIES), ARISING OUT OF, INCIDENT TO, CONC�RNING OR RESULTING FROM THE NEGLIGENT OR`VILLFUL ACT OR Oi��IISSIONS OF THE PROVIDER, ITS AGENTS, EMPLOYEES, AND/OR SUBCONTRACTORS,IN THE PERFORMANCE OF ACTIVITIES PURSUANT TO THIS 1VIUNICIPAL CONSENT. ;�..., (c) This indenu�ity provision shall not apply to any liability reslilting from the negligence � - 4 - : EXHIBIT� TO ��ti� �- �� Page _.�:__ of �._ . of the City, its officers, employees, agents, contractors, or subcontractors. (d) The indemnity provision set forth above is: (1) Solely for the benefit of the parties to this Mtmicipal Consent and is not intended to create or grant any rights, contractual or other�vise, to any other Person or entity; (2) To the e;ctent permitted by law, any payments made to, or on behalf of the City under the provisions of this section are subject to the rights granted to Providers under Sections 54.204-54.206 of the Texas Utilities Code; and (3) Subject to the continued applicability of the provisions of Sections 54.204-54.206 of the Texas Utilities Code, as set forth in (2) above, the provisions of the indemnity shall suivive the expiration of this Municipal Consent. 9, PRO VIDER DEFA UL T AND REMLDIES. If Provider fails to comply�vith this Consent or the Telecommunication Ordinance,Provider will be subject to tennination and remedies as provided for in the Telecommunications Ordinance and herein. ��:�; 10. COMPLIANCE WITH LA IVS;SET�ERABILITY. 10.1 Notwithstanding any other provisions of this Consent to the contrary, the Provider shall at all times comply with all applicable police powers and regulations of the City and all administrative agencies thereof. 10.2 If any provision of this Consent, the Telecommunications Ordinance or any related ordinances, permits or licenses held by any court or by any Federal, state, or county agency of competent jurisdiction to be invalid as conflicting �vith any Federal, state or county law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, nile or regulation, said provision shall be considered as a separate, distinct and independent part of this or such other Consent or ordinances, permits or licenses, and such holding shall not affect the validity and enforceability of all other provisions hereof or thereof. In the event that such la�v, rule or regulation is suUsequently repealed, rescinded, amended or other�vise changed, so that the provision hereof or thereof which had been held invalid or modified is no lon�er in conflict with the law, rules and regulations then in effect, � said provision shall thereupon return to fiill force and effect and shall thereafter be binding on the ���� parties hereto, provided that the City shall give the Provider sixty (60) days'written notice of such change before requiring compliance�vith said provision. � - 5 - : EXMIBIT�i�.�. TO � �f q�' PagQ ._1�;. Of 10.3 If the City determines tl�at a material provision of this Consent, the Telecommunications Ordinance or any related Consent or ordinances, permits or licenses are � affected by such action of a court or of the Federal, state or county government, the City and Provider shall have the right to modify any of the provisions hereof or in such related documents to such reasonable extent as may be necessary to carry out the fiill intent and purpose of this Consent and all relatcd documents. 11. TAXES AND PERILIIT FEES. Nothing contained in this Consent shall be constnied to exempt the Provider from any tax levy, sales tax or assessment which is or may be hereafter lawfully imposed by the City as are generally applicable in the City or State. 12. SALE OR TRANSFER. With respect to the sale or transfer of the Consent or Telecommunication Network, the Provider shall comply with appropriate sections of the Telecommunications Ordinance. 13. SER VICE OF NOTICE. 13.1 All notices required or permitted to be given to either party by the other party under �� any provisions of this Consent shall be in writing and shall be deemed served: � (a) When delivered by hand or by Federal Express or similar service to that party's address set forth below during normal business hours; or (b) When mailed to any other person designated by that party in writing herein to receive such notice, via certified mail, return receipt requested. 13.2 Notice shall be given to the following: (a) If to City: Mr. Roger Nelson, City Manager, City of Grapevine P.O. Box 95104 Grapevine, Texas 76099 (b) If to Provider: Jim Ghi smi General hlana�r y„�, 3 5 01 F ri 2181 Corinth, TX 76205 �� - 6 - EXHIBIT � TO Page �_ of �,,.� 14. FORCE MAJEURE. Any delay, preemption, or other failure to perform caused by factor beyond the parties' reasonable control, such as an act of God, labor dispute, non-delivery by non-affiliated suppliers, war, riot, technical breakdown, or government administrative or judicial order or regulation, shall not result in a default of the Consent. Each party shall exercise its reasonable efforts to cure any such delays and the cause thereof, and performance under the terms of this Consent shall be excused for the period of time during which such factor continues. I5. CONSTRUCTIONAND JURISDICTION. In the event of a�1y conflict between this Consent and the Telecoinmunications Ordinance, the Ordinance terms shall prevail and control. Provider's obligations and rights as a user of the Public Rights-of-Way within the City are governed by federal and state law and the terms of the Telecommunications Ordinance and are not modified or expanded through the execution of this Municipal Consent . This Consent is inade and performed in Tanant County, Texas and it shall be construed in accordance with laws in the State of Texas and the City. Any suit to enforce this Consent shall be i brought in Tarrant County, Texas. ��..� 16. ACKNOWLEDGMENT THAT TERMS AItE UNDERSTOOD. The Provider acknowledges that it has read and fully understood the terms of both the Consent and the Telecommtulications Ordinance and accepts the terms and conditions herein and as required in the Telecommunications Ordinance. Provider also understands that its obligations and rights as a user of the Public Rights-of-Way within the City are governed by federal a.nd state law and the Telecominunications Ordinance a�id are not modified or expanded through its execution of this Municipal Consent. IN WITNESS THEREOF,the parties have signed below, effective as of the Effective Date, by their duly authorized representatives. ACCEP D: City of Grapevine, Texas elecominunication Company "City" "Provider" .��A.:� x��.� - 7 - EXHIBIT�. TO � '- Page of ..,. , By. - By• .. oger eson � Its: City Manager Its: �t>�u.�t-,�, � F7,�;��.� [Note to City Attorney- Add appropriate signature block for City] 109896\0001�NITOGRA01.CAW �.,�� �.�;.� _ Q - O n ��- �` �� EXHIBIT�L. TO C2-�--� 9y- �� Page _�. of .—L._ t . EXHIBIT "A" kt, PUBLIC RIGHTS-OF-WAY THAT MAY BE USED BY TAE PROVIDER Check applicable box: � Any public ri hts-of-wa in the Cit g Y Y City Initial Pr ider Initial ❑ Only areas as described in the attached Map City Initial Provider Initial �..;, 109896\0001�NITOGRAO 1.CAW �,:f n �,.� . _ 9 _