(a)
The
purpose of this article is to:
(1)
Assist
in the management of the public rights-of-way in order to minimize
the congestion, inconvenience, visual impact and other adverse effects,
and the costs to the citizens resulting from the placement of telecommunications
facilities within the public rights-of-way;
(2)
Govern
the provider's use and occupancy of the public rights-of-way;
(3)
Compensate
the city for the private, commercial use and occupancy of the public
rights-of-way by telecommunications providers in a nondiscriminatory
and competitively neutral manner;
(4)
Assist
the city in its efforts to protect the public health, safety and welfare;
(5)
Facilitate
competition among telecommunications service providers and encourage
the universal availability of advanced telecommunications services
to all residents and businesses of the city;
(6)
Conserve
the limited physical capacity of the public rights-of-way held in
public trust by the city.
(b)
This
article may be referred to as the "Telecommunications Ordinance."
[Ord. No. 852-99, § 1, 1-26-1999]
Subject to the restrictions set forth in this article, the city may consent to the nonexclusive right and privilege to use the public rights-of-way in the city by a provider for the operation of access lines in a telecommunications system, consisting of both telecommunications facilities and transmission media. The terms of this article shall apply throughout the city and to all operations of the provider within the city public rights-of-way, and in the public rights-of-way in any newly annexed areas in accordance with section 46-52.
[Ord. No. 852-99, § 2, 1-26-1999]
(a)
This
article applies to all telecommunications service providers under
Title 47, Chapter 5, Subchapter 11 of the United States Code (47 USC
201 et seq.) (Title 47) that place transmission media in, on or over
public rights-of-way, excluding services provided solely by means
of a wireless transmission. No municipal consent granted under this
article authorizes the provision of any services not covered by Title
47. Cable service and open video systems as defined in Title VI of
the Communications Act of 1934 (Title 47, Chapter 5, Subchapter V-A
of the United States Code (47 USC 521, et seq.) and any other content
service are expressly excluded.
(b)
The
right of a person to apply for or to use city utility infrastructure
shall be governed by other provisions of the city Code. The granting
of a municipal consent under this article does not grant attachment
rights or authorize the use of city utility infrastructure.
[Ord. No. 852-99, § 3, 1-26-1999]
The following words, terms and phrases when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
means a unit of measurement representing:
Each switched transmission path of the transmission media within
the public rights-of-way extended to the end-user customer's network
interface within the city that allows delivery of telecommunications
service;
Each separate transmission path of the transmission media within
the city's public rights-of-way that terminates at an end-user customer's
network interface or each loop provided as an unbundled network element
to a person pursuant to an agreement under Section 252 of the Federal
Telecommunications Act of 1996 (47 USC 252); or
Each termination point of a nonswitched telephone or other circuit
consisting of transmission media connecting specific locations identified
by, and provided to, the end-user for the delivery of nonswitched
telecommunications service within the city.
means the amount in section 46-41 to be applied to each access line on a monthly basis for the calculation of the total amount to be paid to the city by the provider and/or any person using the facilities of provider for the creation of telecommunications service.
means a person who controls, is controlled by, or is under
common control with a provider. Affiliate does not include a person
who serves end-use customers by means of a wireless transmission.
There is a rebuttable presumption of control if a provider owns 25
percent or more of the affiliate's stock or assets.
means any entity that has been granted or applied for a certificate under V.T.C.A., Utilities Code ch. 54 or other successor authorizing certificate to provide local exchange telephone service
means this city. As used throughout, the term "city" also
includes the designated agent of the city.
means the city manager of the city or the city manager's
designee.
means all ordinances, laws, rules, resolutions and regulations
of the city that are not inconsistent with this article and that are
now in force or may hereafter be passed and adopted.
means any and all of the provider's duct spaces, manholes,
poles, conduits, underground and overhead passageways and other equipment,
structures, plant and appurtenances and all associated transmission
media.
means the individual grant to use the public rights-of-way
issued by the city and accepted by the individual providers under
this article governing the provider's use of the public rights-of-way
and the payment of compensation.
means a natural person (an individual), corporation, company,
association, partnership, firm, limited liability company, joint venture,
joint stock company or association, and other such entity.
means a person that delivers telecommunications service within
the city to persons by way of a network, including any certificated
telecommunications utility and that places facilities in, on or over
the public rights-of-way. A provider does not include persons who
are authorized by the city to occupy the public rights-of-way in specifically
approved routes within the city, unless they also have a municipal
consent under this article. To the extent allowed by law, the provider
also means a person that does not deliver telecommunications service
within the city, but who uses, constructs or maintains facilities
or transmission media within the public rights-of-way.
means all present and future public streets, highways, lanes,
paths, alleys, sidewalks, boulevards, drives, tunnels, easements or
similar property in the city limits in which the city holds a property
interest or exercises rights of management or control.
means all facilities placed in the public rights-of-way and
used to provide telecommunications service to the public.
means the providing or offering to provide transmissions
between or among points identified by the user, of information of
the user's choosing, including voice, video or data, without change
in content of the information as sent and received, if the transmissions
are accomplished through a telecommunications network. Telecommunications
service includes ancillary or adjunct switching services and signal
conversions rendered as a function of underlying transmission services,
but excludes long distance transmissions (inter-LATA [local access
transport area] and intra-LATA toll transmissions). Telecommunications
service includes all communications services capable of being provided
over a telephone system and certificated to telecommunications providers
under the state utility code, Title 2, Public Utility Regulatory Act,
as amended, and Title 11 of the Communications Act of 1934, as amended,
expressly excluding cable services or open video systems as defined
in Title VI of the Communications Act of 1934, as amended. Also excluded
are "wireless services" as defined by law.
means any and all of the provider's cables, fibers, wires
or other physical devices used to transmit and/or receive communication
signals, whether analog, digital or of other characteristic, and whether
for voice, data or other purposes.
[Ord. No. 852-99, § 4, 1-26-1999]
(a)
Prior
to placing, reconstructing or altering facilities in, on or over the
public rights-of-way, a provider must obtain a municipal consent from
the city.
(b)
The
use of public rights-of-way for the delivery of any service not covered
by this article is subject to all other applicable city requirements.
(c)
Any
provider with a current, unexpired consent, franchise, agreement or
other authorization from the city ("grant") to use the public rights-of-way
that is in effect at the time this article takes effect shall continue
to operate under and comply with that grant until the grant expires
or until it is terminated by mutual agreement of the city and the
provider and a municipal consent under this article is granted and
in effect.
[Ord. No. 852-99, § 5, 1-26-1999]
(a)
A person
must submit an application to the city manager to initiate the process
to obtain a municipal consent.
(b)
The
application must be on a form prescribed by the city manager, and
it must include the following:
(1)
The
identity of the applicant, including all affiliates of the applicant
that may have physical control of the network, to the extent known
at the time of the application;
(2)
A
general description of the services to be provided initially;
(3)
With
respect to post-application construction, a route map of the applicant's
proposed network, if any; and
(4)
A description of the effect on the rights-of-way, of any post-application construction to the extent known, but not including routine maintenance and construction for additions to existing networks, except as may be required in section 46-47, including:
a.
The
location and route required for applicant's proposed telecommunications
network.
b.
The
location of all overhead and underground public utility, telecommunication,
cable, water, sewer, drainage and other facilities in the rights-of-way
along the proposed route.
c.
The
specific trees, structures, improvements, facilities and obstructions,
if any, that the applicant proposes to temporarily or permanently
remove or relocate.
(5)
While
not a requirement for the issuance of a municipal consent, if applicable,
the applicant shall provide:
a.
Evidence
that the applicant holds or has applied for a state public utility
commission certificate and information to establish that the applicant
will obtain all other governmental approvals and permits prior to
construction.
b.
Certification
or other documentation to evidence the state public utility commission
or any other required governmental approval showing compliance with
E911 requirements of V.T.C.A., Health and Safety Code chs. 771 and
772 on emergency communication, and the state public utility council
substantive rules on interconnection, particularly Section 23.97(a),
(d) and (e), as amended.
(6)
Such
other and further information as may be reasonably requested by the
city manager as it relates to the use of the public rights-of-way.
(d)
The
city manager shall review an application submitted under this article
and shall recommend to the city council that it grant or deny the
application. The city manager shall make this recommendation to the
city council as soon as practicable, but no later than the 90th day
after a completed application has been filed. Upon mutual written
agreement between the city and the provider, action on an application
may be postponed for one or more periods not exceeding 30 days each.
(e)
Except
for delay caused by the applicant, the city council must take an initial
action on the city manager's recommendation within 45 days after receipt
by the city council of the city manager's recommendation, the city
manager's recommendation to grant an application shall be deemed approved.
No city council action is required to confirm a denial recommendation,
except acknowledgment of receipt of the recommendation.
[Ord. No. 852-99, § 6, 1-26-1999]
(a)
If the
city manager finds that the application meets the requirements of
this article, the city manager shall request the city attorney or
designee to prepare a municipal consent ordinance for the city council's
consideration.
(b)
A municipal
consent ordinance submitted to the city council must include the following
provisions:
(1)
A
term of not more than five years for the municipal consent;
(2)
A
requirement that the provider substantially comply with this article;
(3)
A
requirement that the provider's municipal consent is subject to termination
by the city council, after notice and hearing, for the provider's
failure to comply with this article or on a showing that the provider
has breached the terms of the municipal consent;
(c)
Review
and approval by the city does not constitute a guarantee of sufficiency
of the design of the telecommunications network. The applicant retains
full responsibility for the adequacy of the design of the telecommunications
network.
[Ord. No. 852-99, § 7, 1-26-1999]
A person whose application for a municipal consent is denied, or whose application is not considered by the city council within a reasonable time after the city manager submits a recommendation under section 46-36 or whose municipal consent is terminated, may petition the city council for reconsideration before seeking judicial remedies. A petition for reconsideration is considered denied if the city council does not act within 60 days after the petition is filed with the city secretary.
[Ord. No. 852-99, § 8, 1-26-1999]
(a)
The
city manager shall administer this article and enforce compliance
with a municipal consent conveyed under this article.
(b)
A provider
shall report information related to the use of the public rights-of-way
that the city manager requires in the form and manner prescribed by
the city manager.
(c)
The
city manager shall report to the city council upon the determination
that a provider has failed to comply with this article.
[Ord. No. 852-99, § 9, 1-26-1999]
[Ord. No. 852-99, § 10, 1-26-1999]
A provider shall compensate the city by payment of the fees
as provided below:
(1)
Access
line fee calculation.
To compensate the city for the use of the rights-of-way, a provider whose telecommunications network is used to serve persons in the city shall pay the city a monthly fee to be calculated as provided below for each access line owned or used by the provider, as calculated as of month-end, that is activated for use by an end user customer of the provider or of another person as a certificated telecommunications utility, by lease or otherwise, subject to subsection (6) of this section or of any other person:
a.
Access
line fee calculation amount.
1.
Following the effective date of the municipal consent, a provider shall submit to the city manager on a quarterly basis, a certified statement together with the access line fee payment under section 46-42, indicating the number of access lines used to provide telecommunications service at month-end, for each month of the quarter and for each customer class identified. The statement shall be provided on a form prescribed by the city manager.
2.
For each month of the quarter following the effective date of the municipal consent, a provider shall pay an access line fee which is based upon its number of access lines calculated as provided in appendix A for the following items:
|
Access Line Fee Monthly Calculation Amount
|
|
Type (1) or (2):
|
|
Residential
|
|
Nonresidential
|
|
Type (3):
|
|
Private line
|
|
Termination point(s)
|
The city reserves the right to make reasonable adjustments
to the access line fee, with 180 days notice, but not to exceed ten
percent in any one year.
Amounts appearing above are used to calculate the total compensation
due the city and are not to be construed as the setting of a charge
for end users.
To the extent allowed by law, and not at the direction or request
of the city, pursuant to V.T.C.A., Utilities Code § 54.206, a
provider has the discretion to collect the access line fee imposed
by the city pursuant to this article through a pro rata charge to
the customers in the boundaries of the city, including from any other
persons who are leasing, reselling, rebundling or otherwise using
the providers access lines to provide telecommunications service.
For purposes of this section only, lines terminating at customers
with "Lifeline," "Tel-Assistance," or other service that is required
to be similarly discounted pursuant to state or federal law or regulation
for the purpose of advancing universal service to the economically
disadvantaged shall not be included in the lines upon which the fee
is calculated, but provider shall provide information on the number
of such lines upon request by the city.
b.
Number
of access lines.
Subject to city's agreement not to disclose
this information unless required by law, provider agrees to provide
annually or as requested by the city, within a reasonable time after
receipt of the city's written request, a report showing the number
of access lines being maintained or operated by provider that are
serving premises within the city. The city agrees that the report
shall be used solely for the purposes of verifying the number of provider's
access lines serving premises within the city. Upon written request,
provider shall verify the information in the report and, upon reasonable
advance notice, all noncustomer specific records and other documents
required for such verification shall be subject to inspection by the
city expressly excluding any records, documents or other writings
the disclosure of which is prohibited by state or federal law, including
the Electronic Communications Privacy Act, 18 USC 2701 et seq.
(2)
Minimum
annual fee.
Notwithstanding any other provision in this
article, for all new installations of facilities placed in, on or
under the public rights-of-way from the effective date of the municipal
consent and for each calendar year period thereafter, the provider
shall pay the city a minimum annual public street crossing fee of
either the greater of:
a.
The
access line fee; or
b.
The amount set out in appendix A.
|
This annual minimum fee is to compensate the city for the reasonable
rental value of the public rights-of-way used by the provider, and
to recover the administrative cost in monitoring and enforcing the
provisions of this article and of the municipal consent. Each municipal
consent shall provide that the minimum fee of subsection (2)b. above
may be adjusted once every three years by the city in its sole reasonable
discretion to properly reflect the reasonable rental value of the
public rights-of-way and administrative cost to the city, but such
adjustment shall not exceed $100.00 in any one three-year period.
|
(3)
Confidential
records.
If the provider notifies the city by a conspicuous written notation of the confidential nature of any information (including, but not limited to the information in subsection (2) of this section), reports, documents or writings, the city agrees to maintain the confidentiality of the information, reports, documents and writings to the extent permitted by law. Upon receipt by the city of requests for the provider's confidential information, reports, documents or writings, the city shall notify the provider of the request in writing by facsimile transmission. The city shall furnish the provider with copies of all requests for attorney general opinions pertaining to the provider's confidential information, reports, documents or writings. The city shall request an attorney general's opinion before disclosing any confidential information, reports, documents or writings, and shall furnish the provider with copies of attorney general opinion requests as soon as practicable that may pertain to the provider's confidential information, reports, documents or writings.
(4)
No
other fees.
The payments due under this article shall
be in lieu of any construction, building or other permit, approval,
inspection or other similar fees or charges, including, but not limited
to, all general business permit fees customarily assessed by the city
for the use of the public rights-of-way against persons operating
businesses similar to that of a provider. Further, such access line
fee shall constitute full compensation to the city for all provider's
facilities located within the public rights-of-way, including interoffice-transport
and other transmission media that do not terminate at an end-user
customer's network interface device, even though those types of lines
are not used in the calculation of the public rights-of-way fee. The
compensation paid is not in lieu of any generally applicable ad valorem
taxes, sales taxes or other generally applicable taxes, fees, development
impact fees or charges, or other statutory charges or expenses recoverable
under the state public utility regulatory act or successor statutes.
(5)
Uncollectibles.
Any other provision of this agreement notwithstanding, provider
shall not be obligated to pay the city for any access lines or private
line termination points the revenues for which remain uncollectible.
(6)
Payments
by or use of the network by other telecommunications carriers and
providers.
a.
Direct
payment—Facilities provided to other telecommunications service
providers.
To the extent allowed by applicable state and federal law, any telecommunications service providers who purchase unbundled network elements or other facilities or services for the purpose of rebundling those facilities and/or services to create telecommunications service for sale to persons within the city ("rebundler"), must pay to the city the access line fee that is calculated as of month-end by applying the appropriate access line fee, as specified in section 46-41, to each access line created by rebundling telecommunications service or facilities. Direct payment further ensures that the access line fee imposed in this article can be applied on a nondiscriminatory basis to all telecommunications service providers that sell telecommunications service within the city. Other provisions of this article notwithstanding, the provider shall not include in its monthly count of access lines any facilities or services provided to other telecommunications service providers for rebundling into telecommunications service, if the telecommunications service provider who is rebundling those facilities for resale has provided a signed statement to the provider that the telecommunications service provider is paying the access line fees applicable to those rebundled services directly to the city. If provider provides a copy of the signed statement to the city from the rebundler which is acceptable to the city, then provider is absolved of all responsibility for the access line fees payable on the services, unbundled network facilities and other facilities rebundled for the creation of telecommunications service for sale within the city by each such rebundler.
b.
Indirect
payments—Public rights-of-way fee application to use of network
by others.
With respect to any person leasing, resellings
or otherwise using a provider's access lines, if a provider believes
it does not have sufficient information to determine the appropriate
rate to apply, then the higher access line fee may be applied until
such time as the person using the access lines provides to the provider
sufficient written information to determine the correct access line
fee. If a person provides sufficient written information for the application
of the access line fee, the provider may, at its discretion and not
at the city's request, bill the person on the basis of the information
provided. The provider shall provide to the city any information regarding
the locations to which it is providing service or facilities for use
by another person for the provision of telecommunications service
to end-user customers, so long as the city first obtains written permission
of such other person for provider to provide the information to the
city. Any other provision of this article notwithstanding, however,
a provider shall not be liable for underpayment of access line fees
resulting from the provider's reliance upon the written information
provided by any person who uses provider's services or facilities
for the provision of telecommunications service to end-user customers.
[Ord. No. 852-99, § 11, 1-26-1999]
(a)
Access
line fee.
A provider shall remit the access line fee on a quarterly basis together with the certified statement required in subsection 46-41(1)a.1. Payment shall be made on or before the 45th day following the close of each calendar quarter for which the payment is calculated and shall be paid by wire transfer to an account designated by the city manager.
[Ord. No. 852-99, § 12, 1-26-1999]
(a)
On 30
days notice to a provider the city may audit a provider for a period
of time to the fullest extent allowed by law. The provider shall furnish
information to demonstrate its compliance with the municipal consent
and/or other provisions of this article.
(b)
A provider
shall keep complete and accurate books of accounts and records of
business and operations that cumulatively reflect the monthly count
of all access lines for a period of seven years. The city manager
may require the keeping of additional records or accounts that are
reasonably necessary for purposes of identifying, accounting for,
and reporting the number of access lines used to deliver telecommunication
services or for calculation of the payments due hereunder. The city
may examine the provider's books and records referred to in this section,
expressly excluding any records, documents or other writings the disclosure
of which is prohibited by state or federal law, including the Electronic
Communications Privacy Act, 18 USC 2701 et seq., to the extent such
records reasonably relate to providing information to verify compliance
with this article and the municipal consent.
(c)
A provider
shall make available to the city or the city's designated agent (hereinafter
"agent"), for the city or it's agent to examine, audit, review and
copy, in the city, on the city manager's written request, its books
and records referred to in this section, including papers, books,
accounts, documents, maps, plans and other provider records that pertain
to municipal consent conditions and requirements obtained under this
article. A provider shall fully cooperate in making records available
and otherwise assist the city examiner. The city examiner shall not
inspect or copy or otherwise demand production of customer specific
information or any records, documents or other writings the disclosure
of which is prohibited by state or federal law, including the Electronic
Communications Privacy Act, 18 USC 2701 et seq.
(d)
The
city manager may, at any time, make inquiries pertaining to providers'
performance of the terms and conditions of a municipal consent conveyed
under this article. Providers shall respond to such inquiries on a
timely basis.
(e)
Upon
written request by the city manager, to the extent the documents are
reasonably identified, providers shall furnish to the city within
30 business days from the date of the written request copies of all
public petitions, applications, written communications and reports
submitted by providers, to the FCC and/or to the PUC or their successor
agencies, relating to any matters affecting the physical use of city
public rights-of-way.
(f)
The
provisions of this section shall be continuing and shall survive the
termination of a municipal consent granted under this article and
shall extend beyond the term of the municipal consent granted to the
provider and the city shall have all the rights described in this
section for so long as provider is providing any telecommunications
service within the city.
[Ord. No. 852-99, § 13, 1-26-1999]
(a)
No municipal
consent nor any rights or privileges that a provider has under a municipal
consent, or the facilities held by a provider for use under such municipal
consent which are in the public rights-of-way, shall be sold, resold,
assigned, transferred or conveyed by the provider, either separately
or collectively, to any other person without the prior written approval
of the city by ordinance or resolution. The city's approval shall
be based upon the transferee providing adequate information to the
city that it has the ability to perform and comply with the obligations
and requirements of the municipal consent. Such approval shall not
be unreasonably withheld. Should a provider sell, assign, transfer,
convey or otherwise dispose of any of its rights or interests under
its municipal consent, including such provider's telecommunications
network, or attempt to do so, without the city's prior consent, the
city may revoke the provider's municipal consent for default, in which
event all rights and interest of the provider under the municipal
consent shall cease.
(b)
Any
transfer in violation of this section shall be null and void and unenforceable.
Any change of control of a provider shall constitute a transfer under
this section. However, such a change in control shall not void the
municipal consent as to the transferee, unless and until the city
has given notice that such a change in control necessitates compliance
with this section. If the provider does not initiate compliance with
this section by a request for municipal consent within 30 days after
the above notice has been given by the city, the municipal consent
shall be null and unenforceable as to the transferee.
(c)
There
shall be a rebuttable presumption of a change of control of a provider
upon a change of 15 percent or greater in the ownership of such provider.
Such a change in control shall be deemed a transfer which requires
consent of the city.
(d)
A mortgage
or other pledge of assets to a bank or lending institution in a bona
fide lending transaction shall not be considered an assignment or
transfer.
(e)
Every
municipal consent granted under this section shall specify that any
transfer or other disposition of rights which has the effect of circumventing
payment of required access line fees or minimum fees and/or evasion
of payment of such fees by failure to accurately count or report the
number of access lines by a provider is prohibited.
(f)
Notwithstanding
anything else in this section, if the city has not approved or denied
a request to transfer under this section within 120 days of written
notice of such request from the provider to the city, it shall be
deemed approved. Such time frame may be extended by mutual agreement
of the parties.
(g)
Notwithstanding
any other provision in this section, a provider may transfer, without
city approval, the facilities in the public rights-of-way under a
municipal consent to another provider who has a municipal consent
under this article. The provider transferring the facilities remains
subject to all applicable obligations and provisions of the municipal
consent unless the provider to which the facilities are transferred
is also subject to such applicable obligations and provisions. The
provider transferring the facilities must give written notice of the
transfer to the city manager.
[Ord. No. 852-99, § 14, 1-26-1999]
(a)
A provider
shall notify the city manager as is provided in the municipal consent
agreement.
[Ord. No. 852-99, § 15, 1-26-1999]
A person may not circumvent payment of access line fees or evade payment of such fees by bartering, transfer of rights or by any other means that result in undercounting a provider's number of lines. Capacity or services may be bartered if the imputed lines are reported in accordance with section 46-41.
[Ord. No. 852-99, § 16, 1-26-1999]
(a)
A provider
is subject to the reasonable regulation of the city to manage its
public rights-of-way pursuant to the city's rights as a custodian
of public property under state and federal laws. A provider is subject
to city ordinances and requirements and federal and state laws and
regulations in connection with the construction, expansion, reconstruction,
maintenance or repair of facilities in the public rights-of-way.
(b)
At the
city's request, a provider shall furnish the city accurate and complete
information relating to the construction, reconstruction, removal,
maintenance, operation and repair of facilities performed by the provider
in the public rights-of-way.
(c)
The
construction, expansion, reconstruction, excavation, use, maintenance
and operation of a provider's facilities within the public rights-of-way
are subject to applicable city requirements.
(1)
A
provider may be required to place certain facilities within the public
rights-of-way underground according to applicable city requirements
absent a compelling demonstration by the provider that, in any specific
instance, this requirement is not reasonable or feasible nor is it
equally applicable to other similar users of the public rights-of-way.
(2)
A
provider shall perform operations, excavations and other construction
in the public rights-of-way in accordance with all applicable city
requirements, including the obligation to use trenchless technology
whenever commercially economical and practical and consistent with
obligations of other similar users of the public right-of-way. The
city shall waive the requirement of trenchless technology if it determines
that the field conditions warrant the waiver, based upon information
provided to the city by the provider. All excavations and other construction
in the public rights-of-way shall be conducted so as to minimize interference
with the use of public and private property. A provider shall follow
all reasonable construction directions given by the city in order
to minimize any such interference.
(3)
A provider must obtain a permit, as reasonably required by applicable city codes, prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the provider's facilities. Once a permit is issued, provider shall give to the city a minimum of 48 hours notice (which could be at the time of the issuance of the permit) prior to undertaking any of the listed activities on its network in this section, on or under the public rights-of-way. The failure of the provider to request and obtain a permit from the city prior to performing any of the listed activities in this section, on or over any public right-of-way, except in an emergency as provided for in subsection (c)(10) of this section, will subject the provider to a stop work order from the city and enforcement action pursuant to the city's Code of Ordinances. If the provider fails to act upon any permit within 90 calendar days of issuance, the permit shall become invalid, and the provider will be required to obtain another permit.
(4)
When
a provider completes construction, expansion, reconstruction, removal,
excavation or other work, the provider shall promptly restore the
rights-of-way in accordance with applicable city requirements. A provider
shall replace and properly relay and repair the surface, base, irrigation
system and landscape treatment of any public rights-of-way that may
be excavated or damaged by reason of the erection, construction, maintenance
or repair of the provider's facilities within 30 calendar days after
completion of the work in accordance with existing standards of the
city in effect at the time of the work.
(5)
Upon
failure of a provider to perform any such repair or replacement work,
and five days after written notice has been given by the city to the
provider, the city may repair such portion of the public rights-of-way
as may have been disturbed by the provider, its contractors or agents.
Upon receipt of an invoice from the city, the provider will reimburse
the city for the costs so incurred within 30 calendar days from the
date of the city invoice.
(6)
Should
the city reasonably determine, within two years from the date of the
completion of the repair work, that the surface, base, irrigation
system or landscape treatment requires additional restoration work
to meet existing standards of the city, a provider shall perform such
additional restoration work to the satisfaction of the city, subject
to all city remedies as provided in this article.
(7)
Notwithstanding
the foregoing, if the city determines that the failure of a provider
to properly repair or restore the public rights-of-way constitutes
a safety hazard to the public, the city may undertake emergency repairs
and restoration efforts. A provider shall promptly reimburse the city
for all costs incurred by the city within 30 calendar days from the
date of the city invoice.
(8)
A provider shall furnish the city with construction plans and maps showing the location and proposed routing of new construction or reconstruction at least 15 days, subject to subsection (d) of this section, before beginning construction or reconstruction that involves an alteration to the surface or subsurface of the public rights-of-way. A provider may not begin construction until the location of new facilities and proposed routing of the new construction or reconstruction and all required plans and drawings have been approved in writing by the city, which approval will not be unreasonably withheld, taking due consideration of the surrounding area and alternative locations for the facilities and routing.
(9)
If
the city manager declares an emergency with regard to the health and
safety of the citizens and requests by written notice the removal
or abatement of facilities, a provider shall remove or abate the provider's
facilities by the deadline provided in the city manager's request.
The provider and the city shall cooperate to the extent possible to
assure continuity of service. If the provider, after notice, fails
or refuses to act, the city may remove or abate the facility, at the
sole cost and expense of the provider, without paying compensation
to the provider and without the city incurring liability for damages.
(10)
Except in the case of customer service interruptions and imminent
harm to property or person ("emergency conditions"), a provider may
not excavate the pavement of a street or public rights-of-way without
first complying with city requirements. The city manager or designee
shall be notified immediately regarding work performed under such
emergency conditions, and the provider shall comply with the requirements
of city standards for the restoration of the public rights-of-way.
(11)
Within 60 days of completion of each new permitted section of a provider's
facilities, the provider shall supply the city with a complete set
of "as built" drawings for the segment in a format used in the ordinary
course of the provider's business and as reasonably prescribed by
the city and allowed by law.
(12)
The city may require reasonable bonding requirements of a provider,
as are required of other entities that place facilities in the public
rights-of-way.
(d)
In determining
whether any requirement under this section is unreasonable or unfeasible,
the city manager or his designee shall consider, among other things,
whether the requirement would subject the provider or providers to
an unreasonable increase in risk of service interruption, an unreasonable
increase in liability for accidents, or an unreasonable delay in construction
or in availability of its services, or to any other unreasonable technical
or economic burden.
[Ord. No. 852-99, § 17, 1-26-1999]
(a)
In the
exercise of governmental functions, the city has first priority over
all other uses of the public rights-of-way. The city reserves the
right to lay sewer, gas, water and other pipe lines or cables and
conduits, to do underground and overhead work, attachments, restructuring
or changes in aerial facilities in, across, along, over or under a
public street, alley or public rights-of-way occupied by a provider,
and to change the curb, sidewalks or the grade of streets.
(b)
The
city shall assign the location in or over the public rights-of-way
among competing users of the public rights-of-way with due consideration
to the public health and safety considerations of each user type,
and to the extent there is limited space available for additional
users, may limit new users, as allowed under state or federal law.
(c)
If,
during the term of a municipal consent, the city authorizes abutting
landowners to occupy space under the surface of any public street,
alley or public rights-of-way, the grant to an abutting landowner
shall be subject to the rights of the provider. If the city closes
or abandons a public right-of-way that contains a portion of a provider's
facilities, the city shall close or abandon such public right-of-way
subject to the rights conveyed in the municipal consent.
(d)
If the
city gives written notice, a provider shall, at its own expense, temporarily
or permanently, remove, relocate, change or alter the position of
provider's facilities that are in the public rights-of-way within
120 days, except in circumstances that require additional time as
reasonably determined by the city based upon information provided
by the provider. For projects expected to take longer than 120 days
to remove, change or relocate, the city will confer with provider
before determining the alterations to be required and the timing thereof.
The city shall give notice whenever the city has determined that removal,
relocation, change or alteration is reasonably necessary for the construction,
operation, repair, maintenance or installation of a city or other
governmental public improvement in the public rights-of-way. This
section shall not be construed to prevent a providers recovery of
the cost of relocation or removal from private third parties who initiate
the request for relocation or removal, nor shall it be required if
improvements are solely for beautification purposes without prior
joint deliberation and agreement with provider. If the provider fails
to relocate facilities in the time allowed by the city in this section,
the provider may be subject to liability to the city for such delay
and as set forth in the city Code of Ordinances, now or hereafter
enacted. Notwithstanding anything in this subsection, the city manager
and a provider may agree in writing to different time frames than
those provided in this subsection if circumstances reasonably warrant
such a change.
(e)
During
the term of its municipal consent, a provider may trim trees in or
over the rights-of-way for the safe and reliable operation, use and
maintenance of its network. All tree trimming shall be performed in
accordance with standards promulgated by the city. Should the provider,
its contractor or agent, fail to remove such trimmings within 24 hours,
the city may remove the trimmings or have them removed, and upon receipt
of a bill from the city, the provider shall promptly reimburse the
city for all costs incurred within 30 working days.
(f)
A provider
shall temporarily remove, raise or lower its aerial facilities to
permit the moving of houses or other bulky structures, if the city
gives written notice of not less than 48 hours. The expense of these
temporary rearrangements shall be paid by the party or parties requesting
and benefitting from the temporary rearrangements. The provider may
require prepayment or prior posting of a bond from the party requesting
the temporary move.
[Ord. No. 852-99, § 18, 1-26-1999]
(a)
A provider
shall obtain and maintain insurance in the amounts reasonably prescribed
by the city with an insurance company licensed to do business in the
state acceptable to the city throughout the term of a municipal consent
conveyed under this article. A provider shall furnish the city with
proof of insurance at the time of filing the acceptance of a municipal
consent. The city reserves the right to review the insurance requirements
during the effective period of a municipal consent, and to reasonably
adjust insurance coverage and limits when the city manager determines
that changes in statutory law, court decisions, or the claims history
of the industry or the provider require adjustment of the coverage.
For purposes of this section, the city will accept certificates of
self-insurance issued by the state or letters written by the provider
in those instances where the state does not issue such letters, which
provide the same coverage as required in this section. However, for
the city to accept such letters, the provider must demonstrate by
written information that it has adequate financial resources to be
a self-insured entity as reasonably determined by the city based on
financial information requested by and furnished to the city. The
city's current insurance requirements are described in Exhibit A which
is not set out in this Code but which is on file and available for
inspection in the offices of the city.
(b)
A provider
shall furnish, at no cost to the city, copies of certificates of insurance
evidencing the coverage required by this section to the city. The
city may request the deletion, revision or modification of particular
policy terms, conditions, limitations or exclusions, unless the policy
provisions are established by a law or regulation binding the city,
the provider or the underwriter. If the city requests a deletion,
revision or modification, a provider shall exercise reasonable efforts
to pay for and accomplish the change.
(c)
An insurance
certificate shall contain the following required provisions:
(1)
Name
of the city and its officers, employees, board members and elected
representatives as additional insureds for all applicable coverage;
(2)
Provide
for 30 days notice to the city for cancellation, nonrenewal or material
change;
(3)
Provide
that notice of claims shall be provided to the city manager by certified
mail; and
(4)
Provide
that the terms of the municipal consent which impose obligations on
the provider concerning liability, duty and standard of care, including
the indemnity section, are included in the policy and that the risks
are insured within the policy terms and conditions.
(d)
A provider
shall file and maintain proof of insurance with the city manager during
the term of a municipal consent or an extension or renewal. An insurance
certificate obtained in compliance with this section is subject to
city approval. The city may require the certificate to be changed
to reflect changing liability limits. A provider shall immediately
advise the city attorney of actual or potential litigation that may
develop which may affect an existing carrier's obligation to defend
and indemnify.
(e)
An insurer
has no right of recovery against the city. The required insurance
policies shall protect the provider and the city. The insurance shall
be primary coverage for losses covered by the policies.
(f)
The
policy clause "other insurance" shall not apply to the city if the
city is an insured under the policy.
(g)
The
provider shall pay premiums and assessments. A company which issues
an insurance policy has no recourse against the city for payment of
a premium or assessment. Insurance policies obtained by a provider
must provide that the issuing company waives all right of recovery
by way of subrogation against the city in connection with damage covered
by the policy.
[Ord. No. 852-99, § 19, 1-26-1999]
(a)
Each
municipal consent granted under this article shall contain provisions
whereby the provider agrees to promptly defend, indemnify and hold
the city harmless from and against all damages, costs, losses or expenses
(i) for the repair, replacement or restoration of city's property,
equipment, materials, structures and facilities which are damaged,
destroyed or found to be defective solely as a result of the provider's
acts or omissions (ii) from and against any and all claims, demands,
suits, causes of action and judgments for (a) damage to or loss of
the property of any person (including, but not limited to the provider,
its agents, officers, employees and subcontractors, city's agents,
officers and employees and third parties); and/or (b) death, 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 employees of the provider, provider's subcontractors and city
and third parties), arising out of, incident to, concerning or resulting
from the negligent or willful act or omissions of the provider, its
agents, employees and/or subcontractors in the performance of activities
pursuant to such municipal consent.
(b)
No municipal
consent indemnity provision shall apply to any liability resulting
from the negligence of the city, its officers, employees, agents,
contractors or subcontractors.
(c)
The
provisions of the required indemnity provision set forth in an individual
municipal consent shall provide that:
(1)
It
is solely for the benefit of the parties to the municipal consent
and is not intended to create or grant any rights, contractual or
otherwise, to any other person or entity;
(2)
To
the extent 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 V.T.C.A., Utilities Code §§ 54.204—
54.206; and
[Ord. No. 852-99, § 20, 1-26-1999]
A provider shall request a renewal of a municipal consent by
making written application to the city manager at least 90 days before
the expiration of the consent.
[Ord. No. 852-99, § 21, 1-26-1999]
Within 30 days following the date of the passage of any action
affecting the annexation of any property to or the disannexation of
any property from the city's corporate boundaries, the city agrees
to furnish provider written notice of the action and an accurate map
of the city's corporate boundaries showing, if available, street names
and number details. For the purpose of compensating the city under
this article, a provider shall start including or excluding access
lines within the affected area in the provider's count of access lines
on the effective date designated by the state comptroller of public
accounts for the imposition of state local sales and use taxes, but
in no case less than 30 days from the date the provider is notified
by the city of the annexation or disannexation.
[Ord. No. 852-99, § 22, 1-26-1999]
The provisions of this article are severable. However, in the
event this article or any tariff that authorizes the provider to recover
the fees provided for this article or any procedure provided in this
article or any compensation due the city under this article becomes
unlawful or is declared or determined by a judicial, administrative
or legislative authority exercising its jurisdiction to be excessive,
unrecoverable, unenforceable, void, illegal or otherwise inapplicable,
in whole or in part, or is exchanged for another means of compensation
under higher authority, the provider and city shall meet and negotiate
a new agreement that is in compliance with the authority's decision
or enactment. Unless explicitly prohibited, the new agreement shall
provide the city with a level of compensation comparable to that set
forth in this article as long as the agreed to compensation is recoverable
by the provider in a manner permitted by law for the unexpired portion
of the term of this article.
[Ord. No. 852-99, § 23, 1-26-1999]
This article shall be construed in accordance with the city Code or codes in effect on the date of passage of the ordinance from which this article is derived to the extent that such Code or codes are not in conflict with or in violation of the Constitution and laws of the United States or the state, subject to the city's ongoing authority to adopt reasonable regulations to manage its public rights-of-way, pursuant to sections 46-47 and 46-48 or as otherwise provided by law. Municipal consents entered into pursuant to this article are performable in the county.
[Ord. No. 852-99, § 24, 1-26-1999]
(a)
The
city shall reserve the right to terminate any municipal consent and
any rights or privileges conveyed under this article in the event
of a material breach of the terms and conditions of the municipal
consent or of this article, subject to a 30-day written notice and
the opportunity to cure the breach during that 30-day period.
(c)
A material
breach shall not be deemed to have occurred if the violation occurs
without the fault of a provider or occurs as a result of circumstances
beyond its control. Providers shall not be excused from performance
of any of their obligations under this article by economic hardship,
nor misfeasance or malfeasance of their city managers, officers or
employees.
(d)
A termination
shall be declared only by a written decision by motion, resolution
or ordinance of the city council after an appropriate public proceeding
before the city council, which shall accord the provider due process
and full opportunity to be heard and to respond to any notice of grounds
to terminate. All notice requirements shall be met by giving the provider
at least 15 days prior written notice of any public hearing concerning
the proposed termination of its consent. Such notice shall state the
grounds for termination alleged by city.
[Ord. No. 852-99, § 25, 1-26-1999]
(a)
Any
person seeking to place facilities on, in or over the public rights-of-way,
city property, city structures or utility infrastructure shall first
file an application for a municipal consent with the city and shall
abide by the terms and provisions of this article pertaining to use
of the public rights-of-way and pay the fees specified in this article.
(b)
The
city may institute all appropriate legal action to prohibit any person
from knowingly using the public rights-of-way unless the city has
consented to such use in accordance with the terms of this article
and with a municipal consent.
(c)
Any
person using the public rights-of-way without a municipal consent
shall be liable for the same fees and charges as provided for in this
article.
[Ord. No. 852-99, § 26, 1-26-1999]
This telecommunications ordinance takes effect on December 8,
1998.
[Ord. No. 852-99, § 27, 1-26-1999]
This section contains the forms to be used for the franchise.
|
CITY OF RICHLAND HILLS, TEXAS
| ||||
|
APPLICATION FOR MUNICIPAL CONSENT FOR USE OF THE PUBLIC RIGHTS-OF-WAY
BY A TELECOMMUNICATIONS SERVICE PROVIDER
| ||||
|
RETURN TO:
|
City of Richland Hills
Department:
3200 Diana Drive
Richland Hills, Texas 76118
| |||
|
APPLICATION FEE:
|
$850.00*
| |||
|
NAME OF APPLICANT:
| ||||
|
*Applicant may receive a credit against future payments to the
city pursuant to the municipal consent in the amount of the application
fee.
| ||||
|
INSTRUCTIONS
| ||||
|
Complete the application using information for the most recently
completed fiscal year. When providing the requested data, please specify
whether it is actual or estimated and for what fiscal year. Return
the completed application to the address above, with the application
fee.
| ||||
|
In the event you become aware of any change in data while the
application is pending, you must file supplemental information reflecting
such change in data. Please indicate each question number immediately
above the response to the question.
| ||||
|
The city will maintain confidentiality of any information provided
pursuant to this application to the extent permitted by law, when
applicant notifies the city of the confidential nature of the information,
in writing in a conspicuous manner.
| ||||
|
While not required for the consent, to protect the public safety,
an applicant may be asked to provide documentation as to compliance
with the E-911 requirements, if they are applicable, which may include
PUC filings. City will notify applicant of this requirement.
| ||||
|
The city reserves the right to request additional information
of the applicant as it relates to the use of the public rights-of-way.
| ||||
|
I.
|
IDENTIFICATION
| |||
|
|
1.
|
State applicant's name, address, telephone number, fax number,
a contact person, and describe the business organization of applicant
including whether applicant is:
| ||
|
|
(Check one:)
| |||
|
|
a.
|
an individual;
| ||
|
|
b.
|
a corporation;
| ||
|
|
c.
|
an unincorporated association;
| ||
|
|
d.
|
a limited partnership;
| ||
|
|
e.
|
a general partnership; or
| ||
|
|
f.
|
any other legal entity (specify).
| ||
|
|
2.
|
If applicant is a corporation, or controlled by a corporation,
attach as Exhibit "A" reasonable evidence of proper incorporation,
such as a copy of the state issued certificate of incorporation, or
if certificated by the PUC, the PUC certificate (or certificate number)
in the corporate name.
| ||
|
|
3.
|
If applicant is an unincorporated association or partnership:
| ||
|
|
|
a.
|
information regarding the principal owners (greater than ten
percent) and ultimate beneficial owners, however designated; and
| |
|
|
|
b.
|
indicate the legal organization of the applicant, and cite the
laws under which it is organized.
| |
|
|
4.
|
Name any affiliates (in whatever form) of the applicant that
will use the network. Additional information on the affiliate and
the use may be requested to determine if they need a separate agreement.
| ||
|
II.
|
PROPOSED SERVICES
| |||
|
|
1.
|
List generally the type of telecommunications services applicant
proposes to provide at present and, to the extent known, any services
which may be provided in the future. Additional information may be
requested to determine if a separate agreement may be needed i.e.,
cable franchise or agreement to operate an open video system.
| ||
|
|
2.
|
While this is not necessary for a municipal consent, please
answer if applicable. Does the applicant hold (or has applied for)
any certificate of authorization from the state public utility commission
or the Federal Communications Commission relevant to the proposed
telecommunications services to be provided in the city? (provide agency
file identification number, date of filing and a copy of authorization
documentation)
| ||
|
III.
|
PROPOSED FACILITIES USE
| |||
|
1. Is applicant proposing to (check all boxes which apply):
| ||||
|
a.
|
resell communications services purchased from other providers?
|
Yes
|
No
| |
|
b.
|
lease or otherwise acquire access to facilities or "network
elements" from other providers (sometimes called a "rebundler" or
facility "reseller")?
|
Yes
|
No
| |
|
c.
|
construct, own and/or control facilities in the public rights-of-way?
|
Yes
|
No
| |
|
|
(1)
|
either sell or lease capacity on the network or of the network
elements of its system?
|
Yes
|
No
|
|
|
(2)
|
sell physical components of its system (i.e., fiber strands,
conduit)
|
Yes
|
No
|
|
|
If applicant has checked only "a" in response to the previous
question, go to Part IV; if applicant has checked "b", but not "c",
complete question 4, if applicant has checked "c", complete questions
2-3.
| |||
|
|
2.
|
Please provide, to the extent known, a brief description of
applicant's proposed facilities and file as Exhibit "B", a block map
marked with the proposed routing of any facilities, to include whether
they are to be underground or overhead. Also include a brief description
of existing underground utilities (i.e., water, sewer, gas, electric,
telephone, cable, other). Also include in detail any proposed removal
or relocation of trees, landscaping or other physical structures in
the public rights-of-way.
| ||
|
|
3.
|
If the proposed facilities are to be placed in and/or along
city streets and rights-of-way, submit an estimate of the distance
(linear footage and maximum width measurement) of the facilities to
be placed in the public rights-of-way, to the extent known.
| ||
|
|
4.
|
If applicant does not own the facilities, describe generally
any relevant lease agreements or interconnection arrangements allowing
applicants use of any facilities and the name of the facility/network
element owner from whom the facilities are leased.
| ||
|
IV.
|
PAYMENT OF MUNICIPAL FEES
| |||
|
|
Applicants that only check Box 1(a) in Section III may remit
fee payments directly to the city or through another provider.
| |||
|
|
1.
|
Do you wish to remit fees through another provider?
| ||
|
|
|
Yes _____
| ||
|
|
|
No _____
| ||
|
|
2.
|
If you have answered yes above, please identify the provider(s)
through which applicant has arranged to remit municipal consent fees.
(Additional documentation may be required)
| ||
|
|
|
Note: Any municipal consent holder is required to report to
the city changes in operations which may affect the availability of
this payment option.
| ||
|
V.
|
USE OF RIGHTS-OF-WAY REQUIREMENTS
| |||
|
|
Check appropriate box:
| |||
|
|
The applicant has reviewed the city's telecommunications ordinance
and understands and can provide the appropriate insurance and bonds
and can comply with the various construction requirement in the rights-of-way.
| |||
|
|
Yes _____
| |||
|
|
No _____
| |||
|
APPENDIX—DEFINITIONS
| ||||
|
1.
|
Affiliate means any entity who controls, is controlled by, or
is under common control with the applicant. There is a presumption
of control if applicant owns (or is owned by) at least 25 percent
of the affiliate's stock or assets.
| |||
|
2.
|
Control means effective control or a 25 percent or greater ownership
interest.
| |||
|
3.
|
Facilities means any transmission media used to provide telecommunications
services (whether fiber, cable, or wire).
| |||
|
EXHIBITS
| ||||
|
A — Corporation/PUC/FCC exhibits.
| ||||
|
B — Block map of the proposed facilities route.
| ||||
|
OATH
| ||||
|
THE STATE OF TEXAS
|
§
| |||
|
COUNTY OF TARRANT
|
§
| |||
|
I, __________, being duly sworn, file this application as __________
(indicate relationship to Applicant, that is owner, partner, title
as officer of corporation, or other authorized representative of Applicant);
in that capacity I am authorized to file and verify all data in this
application.
| ||||
|
I am personally familiar with the books and records from which
information herein was secured, personally completed or supervised
the preparation of this application and all matters set forth are
made in good faith, are true and correct, and accurately represent
the financial and legal condition of applicant.
| ||||
|
|
AFFIANT
| |||
|
SUBSCRIBED AND SWORN BEFORE ME, a Notary Public in and for the
State and County above-named, on this the __________ day of __________
20_____.
| ||||
|
|
Notary Public, STATE OF TEXAS
| |||
|
CITY OF RICHLAND HILLS, TEXAS
| |||
|
MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-OF-WAY
| |||
|
TELECOMMUNICATIONS PROVIDER:
| |||
|
CONTACT NAME:
| |||
|
TELEPHONE NUMBER:
| |||
|
ADDRESS:
| |||
|
CITY/STATE/ZIP CODE:
| |||
|
EFFECTIVE DATE:
| |||
|
EXPIRATION DATE:
| |||
|
THIS CONSENT IS AUTHORIZED BY ORDINANCE NO.:
| |||
|
ADOPTED ON:
| |||
|
MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-OF-WAY
| |||
|
1.
|
PURPOSE AND INTENT:
| ||
|
THIS MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-OF-WAY (the
"Consent") is made and entered into as of _____, 20_____, (the "Effective
Date") by and between the City of Richland Hills, Texas, a city duly
organized under the applicable laws of the State of Texas, (hereinafter
referred to as "City"), and _____ ("Provider").
| |||
|
WHEREAS, the City, pursuant to federal law, state statutes,
and local ordinances, may consent to one or more nonexclusive agreements
to construct and maintain a Telecommunication Network in the Public
Rights-of-Way within the municipal boundaries of the City as designated
in Exhibit "A" ("City Area"); 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, which is incorporated herein for all purposes (Telecommunications
Ordinance);
| |||
|
WHEREAS, the Provider has acknowledged the terms and conditions
of the Telecommunications Ordinance and understands that it is bound
by them;
| |||
|
NOW, THEREFORE, Provider agrees to abide by the terms and conditions
of this Telecommunications Ordinance, as follows:
| |||
|
2.
|
SCOPE OF CITY CONSENT.
| ||
|
The city hereby grants to the provider, for a period of __________
(_____) years from and after the effective date of this consent (the
"term"), the nonexclusive right to construct, use, operate, own and
maintain a telecommunication network in, on, under and over the public
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.
|
AUTHORITY NOT EXCLUSIVE.
| ||
|
This consent and the grant conferred in section 2 above are
not exclusive, pursuant to the telecommunications 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 COMPENSATION.
| ||
|
From and after the effective date of this consent and throughout
the full term of this consent, the provider shall promptly pay to
the city all fees and compensation pursuant to the telecommunication
ordinance.
| |||
|
5.
|
CONSTRUCTION OF THE TELECOMMUNICATIONS NETWORK.
| ||
|
|
5.1
|
Provider shall comply with the telecommunication network construction
requirements in accordance with the appropriate sections of the telecommunication
ordinance.
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|
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5.2
|
Permits required—Provider shall not construct, reconstruct,
or relocate the telecommunication network (or parts thereof) within
the public rights-of-way or on city property unless authority has
been 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.
| |
|
|
5.5
|
Inspections—The provider shall permit the city to conduct
inspections of construction or installation being performed to ensure
compliance with the telecommunications 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 of property—At its own cost and expense, provider
shall promptly restore property disturbed by provider's activities,
pursuant to the telecommunications ordinance.
| |
|
|
5.8
|
Removal or relocation of facilities—The provider shall
remove or relocate the telecommunications network as required by the
telecommunications 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 the lawful occupant of any property involved.
| |
|
|
5.10
|
Books and records—The provider shall keep books and records
as required by the telecommunications ordinance in accordance with
generally accepted accounting principles.
| |
|
6.
|
TREE TRIMMING.
| ||
|
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 branches or leaves from touching
or otherwise interfering with its wires. All trimming or pruning shall
be at the sole cost of the provider.
| |||
|
7.
|
REPORTS.
| ||
|
|
7.1
|
The provider shall make available to the city such information
or reports, as required by the telecommunications ordinance.
| |
|
|
7.2
|
The provider shall allow the city to make inspections of any
of the provider's facilities and equipment located with the public
rights-of-way with sufficient notice as to not disrupt the operations
of the provider.
| |
|
8.
|
INDEMNITY AND INSURANCE.
| ||
|
|
(a)
|
The provider shall comply with applicable sections of the telecommunication
ordinance governing insurance.
| |
|
|
(b)
|
THE PROVIDER AGREES TO PROMPTLY DEFEND, INDEMNIFY AND HOLD THE
CITY HARMLESS FROM AND AGAINST ALL DAMAGES, COSTS, LOSSES OR EXPENSES
(i) FOR THE REPAIR, REPLACEMENT, OR RESTORATION OF CITY'S PROPERTY,
EQUIPMENT, MATERIALS, STRUCTURES AND FACILITIES WHICH ARE DAMAGED,
DESTROYED OR FOUND TO BE DEFECTIVE SOLELY AS A RESULT OF THE PROVIDER'S
ACTS OR OMISSIONS, (ii) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
SUITS, CAUSES OF ACTION, AND JUDGMENTS FOR (a) DAMAGE TO OR LOSS OF
THE PROPERTY OF ANY PERSON (INCLUDING, BUT NOT LIMITED TO THE PROVIDER,
ITS AGENTS, OFFICERS, EMPLOYEES AND SUBCONTRACTORS, CITY'S AGENTS,
OFFICERS AND EMPLOYEES, AND THIRD PARTIES); AND/OR (b) DEATH, 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 EMPLOYEES OF THE PROVIDER, PROVIDER'S SUBCONTRACTORS AND CITY,
AND THIRD PARTIES), ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING
FROM THE NEGLIGENT OR WILLFUL ACT OR OMISSIONS OF THE PROVIDER, ITS
AGENTS, EMPLOYEES, AND/OR SUBCONTRACTORS, IN THE PERFORMANCE OF ACTIVITIES
PURSUANT TO THIS MUNICIPAL CONSENT.
| |
|
|
(c)
|
This indemnity provision shall not apply to any liability resulting
from the negligence of the city, its officers, employees, agents,
contractors, or subcontractors;
| |
|
|
(d)
|
The indemnity provision set forth above is solely for the benefit
of the parties to this municipal consent and is not intended to create
or grant any rights, contractual or otherwise, to any other person
or entity;
| |
|
|
(e)
|
To the extent permitted by law, any payments made to, or on
behalf of the city under provisions of this section are subject to
the rights granted to providers under Sections 54.204—54.206
of the Texas Utilities Code; and
| |
|
|
(f)
|
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 survive the expiration
of this municipal consent.
| |
|
9.
|
PROVIDER DEFAULT AND REMEDIES.
| ||
|
If Provider fails to comply with this consent or the telecommunications
ordinance, provider will be subject to termination and remedies as
provided for in this telecommunications ordinance and herein.
| |||
|
10.
|
COMPLIANCE WITH LAWS; SEVERABILITY.
| ||
|
|
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 is held by any court
or by any federal, state, or county agency of competent jurisdiction
to be invalid as conflicting with 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, rule 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 law, rule or
regulation is subsequently repealed, rescinded, amended or otherwise
changed, so that the provision hereof or thereof which had been held
invalid or modified is no longer in conflict with the law, rules and
regulations then in effect, said provision shall thereupon return
to full force and effect and shall thereafter be binding on the parties
hereto, provided that the city shall give the provider 60 days' written
notice of such change before requiring compliance with said provision.
| |
|
|
10.3
|
If the city determines that 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 full intent and purpose of this consent and all related documents.
| |
|
11.
|
TAXES AND PERMIT FEES.
| ||
|
Nothing contained in this consent shall be construed to exempt
the provider from any tax levy, sales tax or assessment which is or
maybe 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.
|
SERVICE 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:
|
|
|
|
|
City Manager, City of Richland Hills
3200 Diana Drive
Richland Hills, Texas 76118
|
|
|
|
(b)
|
If to Provider:
|
|
|
|
|
|
|
14.
|
FORCE MAJEURE.
| ||
|
Any delay, preemption, or other failure to perform caused by
any factor beyond the parties' reasonable control, such as an act
of God, labor dispute, nondelivery by nonaffiliated 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.
| |||
|
15.
|
CONSTRUCTION AND JURISDICTION.
| ||
|
In the event of any conflict between this consent and the telecommunications
ordinance, the ordinance terms shall prevail and control. Provider's
obligation 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 made and performed in Tarrant County, Texas
and it shall be construed in accordance with laws of the State of
Texas and the City. Any suit to enforce this consent shall be brought
in Tarrant County, Texas.
| |||
|
16.
|
ACKNOWLEDGMENT THAT TERMS ARE UNDERSTOOD.
| ||
|
The provider acknowledges that it has read and fully understood
the terms of both the consent and telecommunications 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 and state law and the telecommunications ordinance and
are not modified or expanded through its execution of this municipal
consent.
| |||
[Ord. No. 852-99, § 16, 1-26-1999]
