HomeMy WebLinkAboutOrdinance - 10135-1999 - Granting Coserv, LLC Governing Use Of City Property And Public Right Of Way - 01/14/1999First Reading
Item !lo. 38
January 14. 1999
Second Reading
Item !lo. 14
January 28. 1999
ORDINANCE NO. 10135
AN ORDINANCE GRANTING COSERV, L.L.C., A TEXAS LIMITED
LIABLITY COMPANY, A FRANCHISE AUTHORIZING AND GOVERNING THE
USE OF CITY PROPERTY AND PUBLIC RIGHTS-OF-WAY TO PROVIDE
TELECOMMUNICATIONS SERVICES WITHIN THE CITY OF LUBBOCK.
This Franchise Agreement (the "Ordinance") is made and entered into as of
____ , 1998, by and between the City of Lubbock ("City"), a home rule municipal
corporation of the State of Texas, and CoServ, L.L.C., ("Grantee"), a Texas Limited
Liability Company with offices at 3501 F.M. 2181, Corinth, Texas, 76205.
WHEREAS, the City, pursuant to federal law, state statutes, and local ordinances,
is authorized to grant one or more non-exclusive franchises, on a non-discriminatory and
competitively neutral basis, governing the use of City Property and Public Rights-of-Way
to provide Telecommunications Services within the City boundaries (Franchise);
WHEREAS, the Grantee has submitted an application (the "Application") and all
applicable application fees for a Franchise, as required by City Ordinance No. 9971, as
amended, ("Telecommunications Ordinance") relating to the establishment of a non-
discriminatory procedure for granting such Franchises;
WHEREAS, the Grantee's commitments hereunder are, in fact, given by the
Grantee as rentals in consideration of the grant of authority hereunder to make use of said
City Property and Public Rights-of-Way held by the City in trust for the citizens of
Lubbock;
WHEREAS, the City has reviewed the Application, and has concluded that
II Grantee's Application meets the criteria specified in the Telecommunications Ordinance
for granting a Franchise;
WHEREAS, the City and the Grantee have agreed to be bound by the conditions
hereafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, the parties agree as follows:
1. GRANT. The City does hereby award the Grantee a Franchise
governing the use of City Property and Public Rights-of-Way for the purpose of
providing Telecommunications Services within the City. Each and every provision in
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! I this Ordinance, including this grant, is expressly made subject to the terms, conditions
and provisions of the Telecommunications Ordinance, as amended, which ordinance is
hereby incorporated herein by reference and which shall govern this Ordinance in all
respects and shall be a part hereof for all intents and purposes as if said
Telecommunications Ordinance were copied herein in its entirety.
2. DEFINITIONS. Unless explicitly defined in this Ordinance, all
definitions shall be the same as, and in accord with, the definitions defined in the
Telecommunications Ordinance.
3. TERM. The term of this Ordinance shall be for three (3) years from
1 the effective date of this Ordinance.
4. FRANCHISE FEE. The Grantee shall pay the City during the life of
Grantee's franchise a monthly Municipal Telecommunications Line Fee for each Access
Line and Private Line Termination Point owned by Grantee, calculated at month-end, that
is activated for use by an end use customer. For the current calendar year, the monthly
Municipal Telecommunications Line Fee shall be fixed in the following amounts:
( 1) $1.40 per residential Access Line
(2) $3.26 per non-residential Access Line or Private Line Termination Point
At the beginning of each successive calendar year following the year of adoption
of this Ordinance, the monthly Municipal Telecommunications Line Fee shall increase by
four percent (4%) over the amount of the monthly Municipal Telecommunications Line
Fee fixed for the prior calendar year. The Grantee shall also pay such further
compensation as may be negotiated on a case-by-case basis for the use of specific City
Property.
In the event the Grantee's month Municipal Telecommunications Line Fee
generates annual revenue for the City that is less than fifteen cents ($0 .15) per linear foot
of right-of-way used by Grantee, Grantee shall make a payment to the City before the last
day of the calendar year equal to the difference between the total monthly Municipal
Telecommunications Line Fee paid by Grantee that year and fifteen cents ($0.15) per
linear foot of right-of-way used by Grantee.
5. OTHER DUTIES. The Grantee shall pay to the City all other moneys,
install all other services, and perform and comply with all other terms and conditions
applicable to Grantee pursuant to this Ordinance and the Telecommunications Ordinance.
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6. INDEMNIFICATION BY GRANTEE. By acceptance of this Ordinance,
Grantee expressly undertakes to defend, indemnify and hold the City and its officers,
employees, agents and representatives harmless from and against any and all damages,
losses and expenses, including reasonable attorney's fees and costs of suit or defense,
arising out of, resulting from or alleged to arise out of or result from the negligent
careless or wrongful acts, omissions, failures to act or misconduct of the Grantee or its
Affiliates, officers, employees, agents, contractors or subcontractors in the construction,
operation, maintenance, repair or removal of its Telecommunications Facilities, and in
providing or offering Telecommunications Services over the facilities or network,
whether such acts or omissions are authorized, allowed or prohibited by this Ordinance.
7. GRANDFATHERING OF IN-KIND FACILITIES. The Grantee shall
allow, for so long as this Ordinance remains in effect, the continued use by the City at no
charge or cost, and solely for the City's own non-commercial telecommunications
purposes, all telecommunications facilities that are currently in use by the City and that
have already been provided to the City by Grantee. (pursuant to Section 5C of City of
Lubbock Ordinance No. 9452)
8. ACCEPTANCE OF FRANCHISE. The Grantee shall, within thirty (30)
days from the date of final passage of this Ordinance by the City Council of the City of
Lubbock, file with the City Manager ofthe City of Lubbock, a written statement of
acceptance of franchise signed in its name and on behalf of its officers, all of whom
hereby represent that they are duly authorized to sign and make such an agreement, the
contents of which shall include the following language:
"The Honorable Mayor and the City Council of the City of Lubbock:
CoServ, L.L.C., a Texas Limited Liability Company, for itself, its
successors and assigns, hereby accepts the attached franchise ordinance as
finally passed by the City Council of the City of Lubbock on the __ _
day of , 199 _, and hereby agrees to be bound by all of its
terms and provisions.
GRANTEE:
BY: ----------------------------
TITLE: _________ _
DATE: __________ _
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II!:. 9. RIGHTS NOT TRANSFERABLE WITHOUT CONSENT. The
, rights granted by this Ordinance are not transferable by the Grantee to a third party or a
I non·controlled affiliate without first complying with all transfer requirements and
1 conditions contained in the Telecommunications Ordinance, which have been
! I incorporated herein, by reference, in its entirety.
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10. EXTENT OF FRANCHISE. The Grantee, by the acceptance ofthis
ordinance, understands and agrees that no interest, title or rights of possession are
intended or implied except those expressly set forth herein. Grantee further understands
and agrees that the rights and uses permitted herein shall not include the right to use any
City Property requiring an election for such use.
11. CHANGE IN LAW. If Federal or State law changes in any way during
the term of this Franchise with respect to the amount of compensation (including
computation of the compensation) a municipality can charge for such Franchises or with
respect to the permissible scope or substantive content of such Franchises, the City and
the Grantee agree that upon passage of the change in law, this Ordinance shall be either
canceled or renegotiated at the election of the Grantee.
12. SAVINGS CLAUSE. Should any section, paragraph, sentence, clause,
phrase, or word of this Ordinance be declared unconstitutional or invalid for any reason,
the remainder of this Ordinance shall not be affected thereby.
AND IT IS SO ORDERED.
Passed by the City Council on first reading this 14tb:lay of .January nut 1999.
Passed by the City Council on second reading this28thday of .January ,x=u 1999.
~LdiJ
WINDY SI N, MAYOR
ATTEST:
4
APPROVED AS TO CONTENT:
M!ii
Richard Burdine, Assistant City Manager
APPROVED AS TO FORM: .,
ddord/CoServe.ord.doc
November4, 1998
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TELECOMMUNICATIONS FRANCHISE
APPLICATION
For the City of Lubbock, Texas
I. INSTRUCTIONS:.
II.
Pursuant to Article 3 of the City of Lubbock Ordinance No. 9971 as amended (the
Telecommunications Ordinance), any Telecommunications Carrier who desires to occupy
City Property or Public Rights-of-Way for the purpose of providing telecommunications
to any person or area in the City must obtain a telecommunications franchise, which may
be renewed. This application ("Application'') must be completed by any applicant for a
telecommunications franchise to satisfy the requirements of the telecommunications
Ordinance.
(1) Each Applicant must complete all the information requested in this Application.
(2)
The Applicant may attach additional documents if this Application does not
provide sufficient room to provide the requisite information.
Each Application must be accompanied by a Five Thousand Dollar ($5,000.00)
application fee or One Thousand Dollar ($1,000.00) renewal fee, whichever is
applicable.
(3) Unless explicitly defined in this Application, all definitions shall be the same as, and
in accord with, the definitions defined in the Telecommunications Ordinance.
(4) Each and every provision in this Application is expressly made subject to the
terms, conditions and provisions of the Telecommunications Ordinance, which
ordinance is hereby incorporated herein by reference and which shall govern this
Application in all respects and shall be a part hereof for all intents and purposes as
if said Telecommunications Ordinance were copied herein in its entirety.
( 5) The Applicant shall pay to the City all other moneys, install all other services, and
perform and comply with all other terms and conditions applicable to Registrant
pursuant to this Ordinance and the Telecommunications Ordinance.
APPLICATION:
Pursuant to Article 3, Section 2 of the Telecommunications Ordinance 9971 CoServ,
L.L.C. (the "Applicant") provides the following information to register as a
Telecommunications Carrier and Provider:
08/10/98
LUBFRAN.AGMdoc
(1) the identity of the Applicant, including all Affiliates of the Applicant.
See attached Exhibit A.
(2) A description of the Telecommunications Services that are or will be offered or
provided by the Applicant over its existing or proposed facilities.
Provide communication and telephone service to or through the City of
Lubbock as permitted by federal or state laws.
(3) A description of the Telecommunications Facilities that are or will be used
by the Applicant to offer or provide such telecommunication services.
A system of Poles, Anchon, Cables, Wires, Manholes, Conduits, and other
Plant Construction and Appurtenances necessary or proper for the business
of furnishing communication and telephone services into, in, within, from,
across, and through the City of Lubbock.
( 4) Preliminary engineering plans and specification of any new facilities to be
located with the City, if known at this time, in sufficient detail to identify:
(a) the location and route of Applicant's proposed Telecommunications
Facilities.
We do not plan to over-build any existing areas. We only plan to
build facilities in new developments. Maps of these areas may not be
available at this time.
(b) the location of all overhead and underground public utility,
telecommunication, cable, water, sewer drainage and other facilities
on City Property or within the Public Rights-of-Way along the
proposed route.
Location of facilities has not been determined as of yet.
(c) the specific trees, structures, improvements, facilities and obstructions,
if any, that Applicant proposes to temporarily or permanently remove
or relocate.
Unknown at this time.
(5) If Applicant is proposing to install new Overhead Facilities, satisfactory
evidence that the Telecommunication Facilities cannot reasonably be
installed in new or existing ducts or conduits, and that Surplus Space is
available for locating its Telecommunications Facilities on existing utility
poles along the proposed route. This showing may be satisfied by
submission of a sworn affidavit setting forth, in detail, the relevant facts
supporting applicant's contentions.
All construction to be underground in the newly developed areas of the city.
08/10/98
LUBFRAN.AGMdoc
2
(6) If Applicant is proposing to install new Underground Facilities in existing
ducts or conduits under City Property or within the Public Rights-of-Way,
information in sufficient detail to identify:
(a) the Excess Capacity currently available in such ducts or conduits
before installation of applicant's Facilities;
CoSen, L.L.C. will install new underground facilities using existing
ducts and conduits when available.
(b) the Excess Capacity, if any, that will exist in such ducts or conduits
after installation of applicant's facilities.
Unknown at this time.
(7) If Applicant is proposing to install new Underground Facilities within new
ducts or conduits to be constructed under City Property or within the
Public Rights-of-Way:
(a) the location proposed for the new ducts or conduits;
These new underground facilities will go in new developments.
(b) the Excess Capacity that will exist in such ducts or conduits after
installation of applicants facilities.
Unknown at this time.
(8) A preliminary construction schedule and completion dates.
This is a new development and a constmction schedule and completion dates
are nnknown at this time.
(9) A preliminary traffic control plan.
This is a new development and there should not be a traffic problem.
(12) Whether the applicant intends to provide Cable Service, video dial tone
service or other video programming service, and sufficient infonnation to
determine whether such service is subject to Cable Service franchising.
Yes. CoSen, L.L.C. does plan to provide cable senice to this area and has
filed for the franchise to serve these new areas.
(13) A description of the services or facilities that the applicant will offer or
make available to the city and other public, educational and governmental
institutions.
CoServ, L.L.C. would consider it a privilege to serve the schools and city
offices inside the developments we serve, providing them with the most hi·
tech senice avaDable.
08110198
LUBFRAN.AGM.doc
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EXHIBIT A
Question No.1:
a) Co-Serv, L.L.C.
b) 3501 FM 2181
Corinth, Texas 76205
(817) 321-4640
c) CoServ is a limited liability company formed February 26, 1997.
d) CoServ, L.L.C. presently has four members/owners:
DCE Services, Inc.
A wholly-owned subsidiary of
Denton County Electric Cooperative, Inc.
3501 FM2181
Corinth, Texas 76205
Poka Lambro Telecommunications, Inc.
(wholly owned subsidiary ofPoka Lambro Telephone Cooperative, Inc.)
P. 0. Box 1340
Tahoka, Texas 79373
Futura Enterprise
7039 Lavendale Avenue
Dallas, Texas 75230
TexEnergy Service Company
P. 0. Box 1462
Austin, Texas 78767
e) Applicant is an alliance of the subsidiaries ofDenton County Electric Cooperative,
Inc. and Poka Lambro Telephone Cooperative, Inc.
Denton County Electric Cooperative, Inc. provides retail electric distribution
service within its area certificated by the Public Utility Commission.
Poka Lambro Telephone Cooperative, Inc. provides basic telecommunications services within its
West Texas certified areas. Poka Lambro Telecommunications provides wireless and other
telecommunications service.
0&110/93
LUBFRAN.AGM.doc
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r.P.'eaiV ~Cc;,mmunications
An Affiliate of Denton County Electric
CoServ Communications
P.O. Box 1340
Tahoka, Texas 79373
806-744-1267
FAX 806-924-5001
www.coserv.com
1-800-422-2387
"The Honorable Mayor and the City CouncU of the City of Lubbock:
CoSeiV, L.L.C., a Texas Limited Liability Company, for itself, its successors
and assigns, hereby accepts the attached franchise ordinance as finally
passed by the City Council of the City of Lubbock on the 28th day of
January, 1999, and hereby agrees to be bound by all of its terms and
provisions:
GRANTEE: CoServ, LL.C.
BY:
BmMcGinnis
TITLE: President
DATE: February 2, 1999
/7'J5' THE STATE OF TEXAS SI!COHDRI!ADINGORDI'NANC~
COUNTY OF LUBBOCK ORDINANce wo. ,.123 Before me Phillip ~mandez . a Notary Public in and for Lubbock .. · AN oao1NA
G . AND CLOSI~EAAaP AlfOONING personally appeared Deannaray. Telephone Sales Manager oft· AN Acces ORTioN oF
bl. h f h bb k A a1 h J I M . d s d =~RKIHG E~~~~~\JP· AND pers Corporation, pu Is ers o t e Lu oc v anc e-ouma -ommg, an un 0111~~T:J':ANoLew~gctci:
sworn did depose and say that said n~spaper has been published continuously for mm . . Boc~~:. Luseo HE CITY oF we.
or to the first insertion of this I.egai'Notice : · ·· ~~t;~~a'i';,R/,_~$!fr~~rA~~~
_______________ ___.,o. /46'· fa£? at Lubbock County, TeJ: .,.Hisc~:!,-*o~ Qr:~J,~:
ed copy of the lggal Notice ' is a true copy of the original and.: . .::::e OFfiCIAL Mf~"E~:
Avalanche-Journal on the following dates:~r.:;c~~L'J'--+~:....:;,...:z._'---.,---
LUBBOCK AVALANCHE-JOURNAL
Morris Communication Corporation
ORDINANC:I! NO. 101J7
... ---------t·'AN ORDINANCE ·AUTHORIZING THE ISS'UANCE OF "CITY OF
LUS·I!IDCK, TEXAS, GENERAL
OBLIGATION REFUNDING
BONOS, SERIES 1999"; SPECI··
FYING THE TERMS AND FEA·
TURES OF SAID BONDS; LEVY·
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ORDINANCE NO. ID1ia
.AN ORDINANCE AUTHORIZING
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lNG THERETO; AND PROVID-ING AN EFFECTIVE DATE.
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THE STATE OF TEXAS
COUNTY OF LUBBOCK
Before me ·Phillip Hernandez a Notary Public in and for Lubbock County, Texas on this day
personally appeared Sarah Kdley, Classified Sales Manager of the Southwestern Newspa-
pers Corporation, publishers of the Lubbock Avalanche-Journal -Morning, and Sunday, who being by me duly
sworn did depose and say that said newspaper has been published continuously for more than fifty-two weeks pri-
or to the fJrst insertion of this .-~1&06lgo;a~alu..lNlD<loti~ce~....--::=--=--------------------:---::----;;-;-;--:o--l~O. 5!1..2£<2
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Avalanche-Journal on the following dates:
LUBBOCK AVALANCHE-JOURNAL
Morris Communication Corporation
Fi&GEIMSDrn o before me thi~s ~tY'lJ~_day 01-f ---:..:::;;;~L!.,;"'&>=~:L.,lrjt:......---~9·_99 __ _
FEB 01.1999
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THE STATE OE TEXAS
COUNTY OF LUBBOCK
Before me PhiUip Hernandez a Notary Public in and for Lubbock County, Texas on this day
personally appeared Sarah Kelley. Classifie4 Sales Manager of the Southwestern Newspa-
pers Corporation, publishers of the Lubbock Avalanche-Journal -Morning, and Sunday, who being by me duly
sworn did depose and say that said newspaper has been published continuously for more than fifty-two weeks pri-
or to the first insertion of this ........JI.e ..... gi!>'Lalu..:!NLJ.Liootiu.\,ce~-------------
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Avalanche-Journal on the following dates: · 1 ,.
Oassified S s Manager
LUBBOCK AVALANCHE-JOURNAL
Morris Communication Corporation
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THE STATE OF TEXAS
COUNTY OF LUBBOCK
Before me Phimp Hernandez . a Notary Public in and for Lubbock County, Texas on this day
personally appeared Sarah KeJJey, Classified Sales Manager of the Southwestern Newspa-
pers Corporation, publishers of the Lubbock Avalanche-Journal-Morning, and Sunday, who being by me duly
sworn did depose and say that said newspaper has been published continuously for more than fifty-two weeks pri-
or to the f'rrst insertion of this __,I......,.eg'""aJ~N......,oti,_ce-=--------------
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Avalanche-Journal on the following dates.~~ .E=---~~':1--~--4-.!..~-----
LUBBOCK AVALANCHE-JOURNAL
Morris Communication Corporation
Sub cr· beforemethis ~ dayo'-~f4LLI~~--.19_99 __ _
RECEIVED
FEB 011999 FORM ;>8·10
CITY St:CrU:TAHY
LUBBOCK. TEXAS
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THE STATE OF, TEXAS
COUNTY OF LUBBOCK
Before me Phillip Hernandez a Notary Public in and for Lubbock County, Texas on this day
personally appeared Sarah Kdley. Classified Sales Manager of the Southwestern Newspa-
pers Corporation, publishers of the Lubbock Avalanche-Journal -Morning, and Sunday, who being by me duly
sworn did depose and say that said newspaper has been published continuously for more than fifty-two weeks pri-
or to the first insertion of this _I....,.e<e.<'ga.....,l N.u~ndws.c..._e ----------------
--------::---:-::-::--:-, _-J.,.o. £~ at Lubbock County, Texas and the attached print-
ed copy of the Legal Notice .. _____is a true copy of the original and was printed in the Lubbock
Avalanche-Journal on the following dates: --
Classified Sales anager
LUBBOCK AVALANCHE-JOURNAL
Morris Communication Corporation
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