HomeMy WebLinkAbout1446 09-26-2000ORDINANCE NO. 1446
AN ORDINANCE OF THE CITY OF EULESS, TEXAS,
GRANTING MUNICIPAL CONSENT TO ADEILPHIA BUSINESS
SOLUTIONS ( "ABS ") OF TEXAS, L.P., ITS SUDSIDIARIES AND
AFFILIATES FOR THE USE AND OCCUPANY OF THE CITY'S
PUBLIC RIGHTS -OF-WAY FOR THE ]PROVISION OF
TELECOMMUNIICATEONS SERVICES; 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 therefore; and
WHEREAS, Adelphia Business Solutions ( "ABS ") of Texas, L.P., its
subsidiaries and affiliates, 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, HE IT 0RDAiNED BY THE CITY COUNCIL OF
THE CITY OF EULIESS, TEXAS:
I.
The City of Euless, Texas hereby grants to Adelphia Business Solutions ( "ABS ") of
Texas, L.P., its subsidiaries and affiliates 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.
II.
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 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 AND FINAL READING and approved at
a regular meeting of the Euless City Council on the 26th day of September, 2000, by a
vote of 6 ayes, 0 nays, and 0 abstentions.
APPROVED:
Mary Lib S eh, Mayor
ATTEST:
us rim, , City Secretary
APPROVED AS TO FORM AND LEGALITY:
EXHIBIT "A"
Ordinance No. 1446 2
CITY OF EULESS, TEXAS
Municipal Consent to Use the
Public Rights -of -Way
TELECOMMUNICATIONS PROVIDER: Adelphia Business Solutions
( "ABS ") of Texas, L.P., its
subsidiaries and affiliates
CONTACT NAME:
TELEPHONE NUMBER:
ADDRESS:
CITY /STATE /ZIP CODE:
EFFECTIVE DATE:
EXPIRATION DATE:
Jim Stinson
(724) 743 -9717
One North Main Street
Coudersport, PA 16915
October 1, 2000
September 30, 2005
THIS CONSENT IS AUTHORIZED BY ORDINANCE NO.: 1446
ADOPTED ON:
Ordinance No. 1446 3
September 26, 2000
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 October 1, 2000,
(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 Adelphia Business Solutions ( "ABS ") of Texas,
L.P., its subsidiaries and affiliates ( "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 five (5) 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.
Ordinance No. 1446 4
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.
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.
Ordinance No. 1446 5
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.
Ordinance No. 1446 6
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 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 SOLEY 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 AND 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
Ordinance No. 1446 7
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 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
Ordinance No. 1446 8
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 thereto, 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 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 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 of
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 be 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.
Ordinance No. 1446 9
13.2 Notice shall be given to the following:
(a) If to City:
Joe C. Hennig, City Manager
City of Euless
201 N. Ector Drive
Euless, TX 76039
(b) If to Provider:
Adelphia Business Solutions ( "ABS) of Texas, L.P.
Jim Stinson
One North Main Street
Coudersport, PA 16915
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 parry 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 JURISDICITION
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.
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 No. 1446 10
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.
City of Euless, Texas
Title: City Manager
ACCEPTED:
Adelphia Business Solutions ( "ABS ")
of Texas, L.P., its subsidiaries and
affates1��. '/,�i7/0.As����s
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By:
Title:
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Ordinance No. 1446 11