HomeMy WebLinkAbout1366 06-22-1999ORDINANCE NO. 1366
AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF
THE CITY OF EULESS, TEXAS BY THE ADDITION OF A NEW
CHAPTER 80 "TELECOMMUNICATIONS" TO ESTABLISH
RULES AND REGULATIONS GOVERNING THE USE OF CITY
PUBLIC RIGHTS -OF -WAY BY PROVIDERS OF
TELECOMMUNICATIONS SERVICES; SETTING FEES FOR
THE USE OF CITY PUBLIC RIGHTS -OF -WAY, PROVIDING FOR
MUNICIPAL CONSENT PROCEDURES AND CONSTRUCTION
OBLIGATIONS; PROVIDING A SEVERABILITY CLAUSE;
PROVIDING A SAVING CLAUSE; PROVIDING FOR
PUBLICATION AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Euless, Texas, (the "City "), seeks to facilitate competition in the
provision of Telecommunications Services on a competitively neutral basis and encourage
the availability of such services to all residences and businesses within the City, and,
WHEREAS, in accordance with applicable federal and state laws, the City seeks to
exercise it's historical rights to control and manage its Public Rights -of -Way to receive
compensation for their use on a competitively neutral and nondiscriminatory basis, and,
WHEREAS, because the City deems that the public streets, alleys, easements, and other
Public Rights -of -Way to be used by the Telecommunications Service Providers in the
operation of their Telecommunications Network(s) within the boundaries of the City are
valuable public properties, the use of which is deemed by the City to be a valuable
property right, therefore, the City finds that the users thereof should pay the City
compensation for the use of the City's Public Rights -of -Way, and
WHEREAS, the City recognizes and finds that continuing changes in the
telecommunications industry, changes in technology, and changes in state and federal law
make Telecommunications Services and Providers unique as opposed to other users of
the City s Public Rights -of -Way;
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EULESS,TEXAS:
1. That a new Chapter 80 be added to the Euless Code of Ordinances which shall
read as set out in Exhibit A, attached hereto.
Ordinance No. 1366, Page 1 of 2
2. That the City Secretary is hereby authorized and directed to cause publication of
descriptive caption of this ordinance as an alternate method of publication provided by law.
3. That this Ordinance shall become effective and shall be in full force and effect from
and after the final date of passage and adoption by the City Council of the City of Euless,
Texas, and following publication as provided by law.
Severability Clause. It is hereby declared to be the intention of the City
Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance
are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance
shall be declared invalid or unconstitutional by the valid judgment or decree of any court
of competent jurisdiction, such invalidity or unconstitutionality shall not affect any of the
remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since
the same would have been enacted by the City Council without the incorporation in this
ordinance of any such invalid or unconstitutional phrase, clause, sentence, paragraph or
section.
Saving Clause. Chapter 80 of the Code of Ordinances, City of Euless, Texas, as
amended, shall remain in full force and effect, save and except as amended by this
ordinance.
Effective Date. This ordinance shall be in full force and effect from and after its
passage and publication as provided by the Euless City Charter and the laws of the State
of Texas.
PRESENTED AND GIVEN FIRST AND FINAL READING at a regular meeting of the
Euless City Council on the 22nd day of June, 1999, by a vote of 6 ayes, 0 nays
and o abstentions.
ATTESTr
Susan Crirr( CPAC, City Secretary
Ordinance No. 1366, Page 2 of 2
APPROVED:
Mary Lib Sal , Mayor
Ordinance No. 1366, Exhibit A
EXHIBIT "A"
TELECOMMUNICATIONS ORDINANCE
TABLE OF CONTENTS
Sec. 80 -1 FINDINGS AND PURPOSE ..................................................... ..............................3
Sec. 80-2 GRANTING CLAUSE .............................................................. ..............................3
Sec. 80 -3 AUTHORITY; SCOPE ............................................................. ..............................3
Sec. 80-4 DEFINITIONS .......................................................................... ..............................4
Sec. 80 -5 MUNICIPAL CONSENT REQUIRED .................................... ..............................6
Sec. 80 -6 APPLICATION FOR MUNICIPAL CONSENT ..................... ..............................6
Sec. 80 -7 MUNICIPAL CONSENT ORDINANCE .............................. ..............................7
Sec. 80-8 PETITION FOR RECONSIDERATION.
Sec. 80 -9 ADMINISTRATION AND ENFORCEMENT
8
F,
Sec. 80 -10 APPLICABILITY ..................................................................... ..............................8
Sec. 80 -11 COMPENSATION TO CITY
Sec. 80 -12 CITY PAYMENT DUE DATES.
9
12
Sec. 80 -13 AUDITS .................................................................................... .............................13
Sec. 80-14 TRANSFER .............................................................................. .............................14
Sec. 80 -15 NOTICES TO CITY ................................................................ .............................15
Sec. 80 -16 CIRCUMVENTION OF FEE PROHIBITED ........................ .............................15
Sec. 80 -17 CONSTRUCTION OBLIGATIONS ....................................... .............................15
Sec. 80-18 CONDITIONS OF PUBLIC RIGHTS -OF -WAY OCCUPANCY ...................... 18
Sec. 80 -19 BOND REQUIREMENTS.
1
19
Ordinance No. 1366, Exhibit A
Sec. 80 -20 INSURANCE REQUIREMENTS ........................................... .............................20
Sec. 80 -21 INDEMNITY .......................................................................... ............................... 22
Sec. 80 -22 RENEWAL OF MUNICIPAL CONSENT .............................. .............................23
Sec. 80 -23 ANNEXATION; DISANNEXATION ...................................... .............................23
Sec. 80-24 SEVERABILITY ...................................................................... .............................23
Sec. 80 -25 GOVERNING LAW ................................................................ .............................23
Sec. 80 -26 TERMINATION ...................................................................... .............................24
Sec. 80 -27 UNAUTHORIZED USE OF PUBLIC RIGHTS -OF- WAY ... .............................24
2
Ordinance No. 1366, Exhibit A
Section 80 -1 Findings and Purpose.
The purpose of this Ordinance is to:
(a) 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,
(b) Govern the Provider's use and occupancy of the Public Rights -of -Way;
(c) Compensate City for the private, commercial use and occupancy of the Public Rights -of -Way
by Telecommunications Providers in a non - discriminatory and competitively neutral manner;
(d) Assist the City in its efforts to protect the public health, safety and welfare;
(e) Facilitate competition among Telecommunications Service Providers and encourage the
universal availability of advanced Telecommunications Services to all residents and businesses
of the City;
(1) Conserve the limited physical capacity of the Public Rights -of -Way held in public trust by the
City;
This Ordinance may be referred to as the "Telecommunications Ordinance."
Section 80 -2 Granting Clause.
Subject to the restrictions set forth herein, the City may consent to the non - exclusive 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 Ordinance 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 80 -23 herein.
Section 80 -3 Authority; Scope.
(a) This Chapter applies to all Telecommunications Service Providers under Title 47, Chapter 5,
Subchapter II of the United States Code (47 U.S.C. § 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 Chapter
Ordinance No. 1366, Exhibit A
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 U.S.C. § 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 Chapter does not
grant attachment fights or authorize the use of City utility infrastructure.
Section 80 -4 Definitions.
In this Chapter:
(a) Access Line means a unit of measurement representing: (1) 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 ; (2) 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 of 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 U.S.C. § 252); or (3) each
termination point of a non - switched telephone or other circuit consisting of Transmission
Media connecting specific locations identified by, and provided to, the end -user for the delivery
of non - switched Telecommunications Service within the City.
(b) Access Line Fee means the amount in Section 80 -11 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.
(c) Affiliate 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%
or more of the Affiliate's stock or assets.
(d) Certificated Telecommunications Utility means any entity that has been granted or applied
for a certificate under Chapter 54 of Tex. Utility Code or other successor - authorizing
certificate to provide local exchange telephone service.
(e) City means The City of Euless, Texas. As used throughout, the term City also includes the
designated agent of the City.
(f) City Manager means the City Manager of the City or the City Manager's designee.
Ordinance No. 1366, Exhibit A
(g) Direction of the City means all ordinances, laws, rules, resolutions, and regulations of the City
that are not inconsistent with this Ordinance and that are now in force or may hereafter be
passed and adopted.
(h) Facilities 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.
(i) Municipal Consent means the individual grant to use the Public Rights -of -Way issued by the
City and accepted by the individual Providers under this Chapter governing the Provider's use
of the Public Rights -of -Way and the payment of compensation.
(j) Person 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.
(k) Provider means a Person, including any Certified Telecommunications Utility, that delivers
Telecommunications Service within the City to Person(s) by way of a Network, 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 Chapter. To the extent
allowed by law, 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.
(1) 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.
(m) Telecommunications Network or Network means all Facilities placed in the Public Rights -
of -Way and used to provide Telecommunications Service to the public.
(n) Telecommunications Service 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 include 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 Tex.
Utility Code, Title 2, Public Utility Regulatory Act, as amended, and Title II of the
Ordinance No. 1366, Exhibit A
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.
(o) Transmission Media 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.
Section 80-5 Municipal Consent Required.
(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 Chapter
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
Telecommunications Ordinance 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 Ordinance is granted and in effect.
Section 80-6 Application for Municipal Consent.
(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 80 -17, including:
a. The location and route required for applicants proposed Telecommunications
Network.
Ordinance No. 1366, Exhibit A
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 Public Utility Commission of
Texas 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 Public Utility Commission of
Texas or any other required governmental approval showing compliance with E911
requirements of Chapters 771 and 772 of the Texas Health and Safety Code on
Emergency Communication, and the Texas Public Utility Council Substantive Rules
on interconnection, particularly Section 80.97(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.
(c) Each applicant that shall submit a non - refundable application fee of $850.00 with the application,
with a credit in the amount of $850.00 on its first quarterly payment due under Section 80 -12.
(d) The City Manager shall review an application submitted under this Chapter and shall recommend
to the City Council that it grant or deny the application. The City Manager shall make
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 forty -five (45) days after receipt by the Council of the City
Manager's recommendation or 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.
Section 80 -7 Municipal Consent Ordinance.
(a) If the City Manager finds that the application meets the requirements of this Chapter, the City
Manager shall request the City Attorney or Designee to prepare a Municipal Consent ordinance
for the City Council's consideration.
Ordinance No. 1366, Exhibit A
(b) A Municipal Consent ordinance submitted to the City Council must include the following
provisions:
(1) a term of not more than five (5) years for the Municipal Consent;
(2) a requirement that the Provider substantially comply with this Chapter;
(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 Chapter
or on a showing that the Provider has breached the terms of the Municipal Consent;
(4) a provision that incorporates the requirements of Section 80 -14 [Transfer] of this Chapter,
(5) a provision that incorporates the requirements of Sections 80 -17 [Construction
Obligations], 80 -18 [Conditions of Public Rights -of -Way Occupancy], 80 -19 [Bond
Requirements], and 80 -20 [Insurance Requirements] of this Chapter, if applicable;
(c) Review and approval by the City does not constitute a guarantee of sufficiency of the design
of the Telecommunications Network. The applicant retains fiill responsibility for the adequacy
of the design of the Telecommunications Network.
Section 80-8 Petition for Reconsideration.
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 7 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.
Section 80-9 Administration and Enforcement.
(a) The City Manager shall administer this Chapter and enforce compliance with a Municipal
Consent conveyed under this Chapter.
(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 Chapter.
Ordinance No. 1366, Exhibit A
Section 80 -10 Applicability.
(a) Sections 80 -17 [Construction Obligations], 80 -18 [Conditions of Public Rights -of -Way
Occupancy], 80 -19 [Bond Requirements] and 80 -20 [Insurance Requirements] of this Chapter
apply only to a Provider that constructs, operates, maintains, owns or controls Facilities in the
Public Rights -of -Way.
(b) Section 80 -21 [Indemnity] of this Chapter applies to a Provider that has a property interest in
a Network.
Section 80 -11 Compensation to City.
A Provider shall compensate the City by payment of the fees as provided below:
(a) Access Line Fee Calculation. To compensate the City for the use of the rights -of -way,
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 (F) below or of any other Person;
(t) Access Line Fee Calculation Amount:
a. 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 80 -12, 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 herein. The statement shall be provided on
a form prescribed by the City Manager,
b. 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 follows:
Access Line Fee
Calculation Amount
TYPE (1) or (2):
Residential
Non - Residential
9
Monthly Amount Per
Access Line From Effective Date
$ .75 -per month
$2.43 - per month
Ordinance No. 1366, Exhibit A
TYPE (3):
Private Line
Termination Point(s) $2.43 - per month
The City reserves the right to make reasonable adjustments to the Access Line Fee,
with 180 days notice, but not to exceed ten percent (10 %) 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 Tex. Utilities Code § 54.206, a Provider has the discretion to collect the
Access Line Fee imposed by the City pursuant to this Ordinance through a pro rata
charge to the customers in the boundaries of the City, including from any other
Persons who are leasing, reselling, rehandling or otherwise using the Provider's
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.)
(2) 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 non - customer 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 U.S.C.
§ 2701 et sect.
(b) Minimum Annual Fee. Notwithstanding any other provision in this Ordinance, 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 fee of $250 (`Minimum Fee "), in the event the annual Access
10
Ordinance No. 1366, Exhibit A
Each Municipal Consent shall provide that the Minimum Fee of (B) above may be adjusted once
every three (3) years by the City, but such adjustment shall not exceed $100 in any one three (3)
year period.
(c) 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 paragraph
(B) 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 fiunish 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 it may pertain to the Provider's
Confidential Information, reports, documents or writings.
(d) No other fees. The payments due hereunder 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
herein 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 Texas Public Utility Regulatory Act, or successor statutes.
(e) 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.
(f) Payments by or Use of the Network by Other Telecommunications Carriers and Providers.
(1) 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 80 -11 above, to each Access Line created by rebundling
11
Ordinance No. 1366, Exhibit A
Telecommunications Service or Facilities. Direct payment further ensures that the Access
Line Fee imposed herein can be applied on a non - discriminatory basis to all
Telecommunications Service Providers that sell Telecommunications Service within the
City. Other provisions of this Ordinance 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.
(2) Indirect Payments - Public Rights -of -Way Fee Application to Use of Network by Others:
With respect to any Person leasing, reselling, 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, Provider may, at its discretion and not at the City's
request, bill the Person on the basis of the information provided. 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 City first obtains written permission of such other Person
for Provider to provide the information to the City. Any other provision of this Ordinance
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.
Section 80-12 City Payment Due Dates.
(a) Access Line Fee:
A Provider shall remit the Access Line Fee on a quarterly basis together with the Certified
Statement required in Section 80 -11(a) (1) a. 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.
(b) Minimum Fee Payment.
12
Ordinance No. 1366, Exhibit A
This fee per Section 80- 11(b), if applicable, shall be due on January 31 of every year of the
Consent Agreement.
Section 80 -13 Audits.
(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 Chapter.
(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
(7) 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 above,
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
U.S.C. §2701 et seq, to the extent such records reasonably relate to providing information to
verify compliance with this Chapter 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 above, including papers, books, accounts,
documents, maps, plans and other Provider records that pertain to Municipal Consent
conditions and requirements obtained under this Chapter. A Provider shall fiilly 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 U. S. C. §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 Chapter. 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 Chapter and shall extend beyond the term of the
13
Ordinance No. 1366. Exhibit A
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.
Section 80 -14 Transfer
(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 Section 80 -14. If
the Provider does not initiate compliance with Section 80 -14 by a request for Municipal
Consent within thirty (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% 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 80 -14 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 80 -14, 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
14
Ordinance No. 1366, Exhibit A
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 80 -14, 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 Chapter. 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 the same, as
applicable, obligations and provisions. The Provider transferring the Facilities must give
written notice of the transfer to the City Manager.
Section 80 -15 Notices to City.
(a) A Provider shall notify the City Manager as is provided in the Consent Agreement.
(b) A Provider shall give written notice to the City not later than 15 days before a transfer or
change in operations that may affect the applicability of Sections 80 -18 [Conditions of Public
Rights -of -Way Occupancy], 80 -19 [Bond Requirements], 80 -20 [Insurance Requirements],
80 -21 [Indemnity], and 80 -22 [Renewal of Municipal Consent], to the Provider.
Section 80 -16 Circumvention of Fee Prohibited.
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 80 -11.
Section 80-17 Construction Obligations.
(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 famish 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.
15
Ordinance No. 1366, Exhibit A
(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 on other similar users of the Public rights -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 forty -eight (48) hours notice (which could be at the time of the issuance
of the permit) prior to undertaking any of the above fisted activities on its Network in, 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 above listed activities in, on or over
any Public Right -of -Way, except in an emergency as provided for in Subsection (10)
below, 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 thirty (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 (5)
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
16
Ordinance No. 1366, Exhibit A
contractors or agents. Upon receipt of an invoice from the City, the Provider will
reimburse the City for the costs so incurred within thirty (30) calendar days from the date
of the City invoice.
(6) Should the City reasonably determine, within two (2) 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 herein.
(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 thirty (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 fifteen (15) days
[subject to Subsection (d)], 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 sixty (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
17
Ordinance No. 1366, Exhibit A
the segment in a format used in the ordinary course of the Provider's business and as
reasonably prescribed by the City, and as 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/her designee shall consider, among other things, whether the requirement would
subject the Provider or Providers to an unreasonable increase in risk of service interruption, or
to an unreasonable increase in liability for accidents, or to an unreasonable delay in construction
or in availability of its services, or to any other unreasonable technical or economic burden.
Section 80 -18 Conditions of Public Rights -of -Way Occupancy.
(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, and to do underground and overhead work, and 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 Provider's recovery of the cost of relocation or
18
Ordinance No. 1366, Exhibit A
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 Codes
or Ordinance, now or hereafter enacted.
Notwithstanding anything in this Subsection (d), the City Manager and a Provider may agree in
writing to different time frames than those provided above 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 twenty -four (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 thirty (30) working days.
(f) Providers 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 no less than 48 hours. The
expense of these temporary rearrangements shall be paid by the party or parties requesting and
benefiting from the temporary rearrangements. Provider may require prepayment or prior
posting of a bond from the party requesting temporary move.
Section 80 -19 Bond Requirements.
(a) Provider shall obtain and maintain, at its sole cost and expense, and file with the City Secretary,
a corporate surety bond in the amount of $100,000 both to guarantee timely construction and
faithful adherence to all requirements of the Ordinance. The bond amount may be reduced to
$50,000 after a period of two (2) years provided Provider has complied with all terms and
conditions herein. The bond must be presented to the City at the time of filing the acceptance
of a Municipal Consent.
(b) The bond shall contain the following endorsement: "It is hereby understood and agreed that this
bond may not be canceled by the surety nor any intention not to renew be exercised by the surety
until thirty (3 0) days after receipt by the City of such written notice of such intent."
(c) The bond shall provide, but not be limited to, the following condition: There shall be recoverable
by the City, jointly and severally from the principal and the surety, any and all damages, loss or
costs suffered by the City resulting from the failure of the Provider to satisfactorily construct
facilities and adherence to all the requirements of this Ordinance.
19
Ordinance No. 1366, Exhibit A
(d) The rights reserved to the City with respect to the Bond are in addition to all other rights of the
City, whether reserved by this Ordinance, or authorized by law; and no action, proceeding or
exercise of a right with respect to such bond shall affect any other rights the City may have.
(e) The City Manager or his designee may waive or reduce the above required bonding
requirements, taking into consideration both that the Provider has furnished the City with
reasonable documentation to evidence adequate financial resources substantially greater than the
bonding requirements, and has demonstrated in prior right -of -way construction activity, prompt
resolution of any claims and substantial compliance with all required applicable building codes
and ordinances.
Section 80 -20 Insurance Requirements.
(a) A Provider shall obtain and maintain insurance in the following amounts with an insurance
company licensed to do business in the State of Texas acceptable to the City throughout the term
of a Municipal Consent conveyed under this Chapter:
Tvue of Insurance Limit Lin $ millions
General Liability (including General Aggregate 2
Contractual liability) written Prod. /Comp. Op. Agg. 2
on an occurrence basis Personal & Adv. Injury 1
Each Occurrence
Automobile Liability, including Combined Single Limit
any auto, hired autos, and
non -owned autos.
Excess Liability, Umbrella Form Each Occurrence 2
Aggregate 2
Worker's Compensation Each Accident .5
and Employer's Liability Disease -Policy Limit .5
Disease -Each Employee .5
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 of Texas or letters
20
Ordinance No. 1366, Exhibit A
written by the provider in those instances where the State does not issue such letters, which
provide the same coverage as required herein. 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.
(b) 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 to accomplish the change.
(c) An insurance certificate shall contain the following required provisions:
(1) name the City of 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, non - renewal, 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) 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 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
21
Ordinance No. 1366, Exhibit A
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.
Section 80 -21 Indemnity.
(a) Each Municipal Consent granted under this Telecommunications Ordinance 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
Sections 54.204 - 54.206 of the Texas Utilities Code; and
(3) Subject to the continued applicability of the provisions of Sections 54.204 - 54.206 of
the Texas Utilities Code, as set forth in (2) above, the provisions of the indemnity shall
survive the expiration of the Municipal Consent.
Section 80-22 Renewal of Municipal Consent.
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.
22
Ordinance No. 1366, Exhibit A
Section 80 -23 Annexation; Disannexation.
Within thirty (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 Ordinance, 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 Comptroller of
Public Accounts - Texas for the imposition of State local sales and use taxes; but in no case less than
thirty (30) days from the date the Provider is notified by the City of the annexation or disannexation.
Section 80-24 Severability.
The provisions of this ordinance are severable. However, in the event this Ordinance or any tariff that
authorizes the Provider to recover the fee(s) provided for this Ordinance or any procedure provided
in this Ordinance or any compensation due the City under this Ordinance 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 Ordinance 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 Ordinance.
Section 80 -25 Governing Law.
This Ordinance shall be construed in accordance with the City Code(s) in effect on the date of passage
of this Ordinance to the extent that such Code(s) are not in conflict with or in violation of the
Constitution and laws of the United States or the State of Texas, subject to the City's ongoing
authority to adopt reasonable regulations to manage its Public Rights -of -Way, pursuant to Sections
80 -17 and 80 -18 or as otherwise provided by law. Municipal Consents entered into pursuant to this
Ordinance are performable in Tarrant County, Texas.
Section 80 -26 Termination.
(a) The City shall reserve the right to terminate any Municipal Consent and any rights or privileges
conveyed under this Chapter in the event of a material breach of the terms and conditions of
the Municipal Consent or of this Chapter, subject to a thirty day written notice and the
opportunity to cure the breach during that thirty (30) day period.
23
Ordinance No. 1366, Exhibit A
(b) Material breaches of a Municipal Consent specifically include, but are not limited to, continuing
violations of Sections 80 -11 [Compensation to City], 80 -17 [Construction Obligations] and/or
80 -18 [Conditions of Public Rights -of -Way Occupancy], and the furnishing of service of any
kind that requires municipal authorization but that is not authorized by Section 80 -3(a).
(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 Chapter 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
fifteen (15) days prior written notice of any public hearing concerning the proposed
temnnation of its consent. Such notice shall state the grounds for termination alleged by City.
Section 80-27 Unauthorized Use of Public Rights -of -Way.
(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 Ordinance pertaining to use
of the Public Rights -of -Way and pay the fees specified herein.
(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 Chapter 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 herein.
24