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HomeMy WebLinkAbout1372 08-10-1999ORDINANCE NO. 1372 AN ORDINANCE OF THE CITY OF EULESS, TEXAS, GRANTING MUNICIPAL CONSENT TO SOUTHWESTERN BELL TELEPHONE COMPANY FOR THE USE AND OCCUPANCY OF THE CITY'S PUBLIC RIGHTS -OF -WAY FOR THE PROVISION OF TELECOMMUNICATIONS SERVICES; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Chapter 80 entitled "Telecommunications" of the Euless Code of Ordinances authorizes the Euless City Council by appropriate Ordinance to consent to the use of the City's public rights -of -way by a certificated telecommunications utility following application therefor; and WHEREAS, Southwestern Bell Telephone Company, a certificated telecommunications utility has made application to the City for municipal consent to use the City's public rights -of -way in connection with the operation of its telecommunication network. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EULESS, TEXAS: I. The City of Euless, Texas hereby grants to Southwestern Bell Telephone Company the right to the use and occupancy of the City's public Rights -of -Way, subject to applicable law and under the terms and conditions specifically set forth in Chapter 80 of the Euless Code of Ordinances, as same exist or may be hereafter amended, and subject to the terms and conditions specifically set forth in a Municipal Consent Agreement attached hereto as Exhibit "A" which Agreement is incorporated herein as though now set forth in full. The City Manager of the City of Euless, Texas, is herewith authorized to execute such Municipal Consent Agreement on behalf of the City. Such Municipal Consent Agreement shall be in form to be approved by the Euless City Attorney. Il. Cumulative Effect. That this ordinance shall and does amend every prior ordinance in conflict herewith, but as to all other ordinances and sections of ordinances not in direct conflict, this ordinance shall be, and the same is hereby made cumulative. III. Severability Clause. That 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 PAGE 1 Council without the incorporation in this ordinance of any such invalid or unconstitutional phrase, clause, sentence, paragraph or section. IV. 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 READING and approved at a regular meeting of the Euless City Council on the 10 day of August 1999, by a vote of 7 ayes, 0 nays, and 0 abstentions. APPROVED: Mary Lib aleh, Mayor ATTEST: an Cnrim, City Secretary AP ROVE TO F RM ANY LEGA IT .t Q C Bob McFarland, City Attorney G: \Dots \E \Euless \ord -telec mmunic tions.wpd PAGE EXHIBIT "A" CITY OF EULESS, TEXAS Municipal Consent to Use the Public Rights -of -Way TELECOMMUNICATIONS PROVIDER: Southwestern Bell Telephone Company CONTACT NAME: TELEPHONE NUMBER: ADDRESS: CITY /STATE /ZIP CODE: EFFECTIVE DATE: EXPIRATION DATE: Gary Terry, Director - External Affairs (817) 338 -6764 1240 Park Place, Floor 1 Hurst, Texas 76053 September 1, 1999 August 31, 2002 THIS CONSENT IS AUTHORIZED BY ORDINANCE NO.: 1372 ADOPTED ON: August 10, 1999 MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS -OF -WAY Page 1 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 September 1, 1999, (the 'Effective Date ") by and between the City of Euless, Texas, a city duly organized under the applicable laws of the State of Texas, (hereinafter referred to as "City "), and Southwestern Bell Telephone Company ( "Provider "). WHEREAS, the City, pursuant to federal law, state statutes, and local ordinances, may consent to one or more non - exclusive agreements to construct and maintain a Telecommunication Network in the Public Rights -of -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 three (3) years from and after the Effective Date of this Consent (the "Term "), the non - exclusive right to construct, use, operate, own and maintain a Telecommunication Network in, on, under and over the 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. MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS -OF -WAY Page 2 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. 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 MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS -OF -WAY Page 3 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 for 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; MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS -OF -WAY Page 4 (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 to 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 sixty (60) days' written notice of such change before requiring compliance with said provision. 10.3 If the City determines that amaterial 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. MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS -OF -WAY Page 5 Nothing contained in this Consent shall be construed to exempt the Provider from any tax levy, sales tax or assessment which is or may be hereafter lawfully imposed by the City as are generally applicable in the City or State. 12. SALE OR TRANSFER. With respect to the sale or transfer of the Consent or Telecommunication Network, the Provider shall comply with appropriate sections of the Telecommunications Ordinance. 13. 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 Euless 2021 N. Ector Drive Euless, Texas 76039 (b) If to Provider: Southwestern Bell Telephone Company Gary Terry, Director - External Affairs 1240 Park Place, Floor 1 Hurst, Texas 76053 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, non - delivery by non - affiliated suppliers, war, riot, technical breakdown, or government administrative or judicial order or regulation, shall not result in a default of the Consent. Each party shall exercise its reasonable efforts to cure any such delays and the cause thereof, and performance under the terms of this consent shall be excused for the period of time during which such factor continues. 15. CONSTRUCTION AND JURISDICTION. MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS -OF -WAY Page 6 In the event of any conflict between this Consent and the Telecommunications Ordinance, the Ordinance terms shall prevail and control. Providers'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. IN WITNESS THEREOF, the parties have signed below, effective as of the Effective Date, by their duly authorized representatives. Its: City Manager ACCEPTED: Southwestern Bell Telephone Company By: Its: President —Texas City Attorney G:\Docs \E \Euless \Mun Consent- SWB.wpd MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS -OF -WAY Page 7