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and agreements in conflict with the provision of this ordinance are hereby repealed.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 _