HomeMy Public PortalAboutOrdinance No. 852-99 01-12-1999 ORDINANCE NO. 852-99
• AN ORDINANCE 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.
WHEREAS, the City of Richland Hills (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 Richland Hills, TEXAS:
THAT a new chapter 9.5, "TELECOMMUNICATIONS" be added to the Richland Hills Code of
. Ordinances, as amended, which new chapter shall hereafter be and read as follows:
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TELECOMMUNICATIONS ORDINANCE
TABLE OF CONTENTS
SECTION 1 -FINDINGS AND PURPOSE . 3
SECTION 2 -GRANTING CLAUSE . 3
SECTION 3 -AUTHORITY; SCOPE . 3
SECTION 4 -DEFINITIONS . 3
SECTION 5 -MUNICIPAL CONSENT REQUIRED . 5
SECTION 6 -APPLICATION FOR MUNICIPAL CONSENT . 5
SECTION 7 -MUNICIPAL CONSENT ORDINANCE . 6
SECTION 8 -PETITION FOR RECONSIDERATION . 6
SECTION 9 -ADMINISTRATION AND ENFORCEMENT . 6
SECTION 10 -APPLICABILITY . 6
SECTION 11 -COMPENSATION TO CITY . 7
SECTION 12 -CITY PAYMENT DUE DATES . 9
SECTION 13 -AUDITS . 9
SECTION 14 -TRANSFER 10
SECTION 15 -NOTICES TO CITY . 11
SECTION 16 -CIRCUMVENTION OF FEE PROHIBITED . 11
SECTION 17 -CONSTRUCTION OBLIGATIONS . 11
SECTION 18 -CONDITIONS OF PUBLIC RIGHTS-OF-WAY OCCUPANCY . 13
SECTION 19 -INSURANCE REQUIREMENTS . 14
SECTION 20 -INDEMNITY . 15
SECTION 21 -RENEWAL OF MUNICIPAL CONSENT . 15
SECTION 22 -ANNEXATION; DISANNEXATION . 15
SECTION 23 - SEVERABILITY . 15
SECTION 24 -GOVERNING LAW . 16
SECTION 25 -TERMINATION . 16
• SECTION 26 -UNAUTHORIZED USE OF PUBLIC RIGHTS-OF-WAY . 16
SECTION 27 -EFFECTIVE DATE . 16
SECTION 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 anon-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;
(F) 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 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
Providerwithin the City Public Rights-of-Way, and in the Public Rights-of-Way in any newly annexed
areas in accordance with Section 22 herein.
SECTION 3 -AUTHORITY; SCOPE.
(A) This Chapter applies to all Telecommunications Service Providers under Title 47, Chapter 5,
Subchapter II ofthe 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 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 rights or authorize the use of City utility infrastructure.
SECTION 4 -DEFINITIONS.
In this Chapter:
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 anon-switched
• telephone or other circuit consisting of Transmission Media connecting specific locations identified
by, and provided to, the end-user for the delivery ofnon-switched Telecommunications Service within
the City.
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(B) Access Line Fee means the amount in Section 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 Richland Hills, 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.
(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 that delivers Telecommunications Service within the City to Person(s) by
way of a Network, including any Certificated Telecommunications Utility and that places Facilities in,
on or over the Public Rights-of-Way. A Provider does not include Persons who are authorized by
the City to occupy the Public Rights-of-Way in specifically approved routes within the City, unless
they also have a Municipal Consent under this 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.
(L) 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.
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 Communications Act of 1934, as amended, expressly excluding cable services or open video
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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 5 -MUNICIPAL CONSENT REQUIRED.
(A) Priorto placing, reconstructing, or altering Facilities in, on oroverthe 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 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 ofthe 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 foradditions to existing Networks,
except as may be required in Section 17, including:
(a) The location and route required for applicant's proposed Telecommunications Network.
(b) The location ofall 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 nota requirementforthe issuance ofa Municipal Consent, ifapplicable, 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 ofthe Texas Health and Safety Code on Emergency Communication,
and the Texas Public Utility Council Substantive Rules on interconnection, particularly
Section 23.97(a), (d) and (e), as amended.
(6) Such other and further information as may be reasonably requested by the City Manager as it
relates to the use of the Public Rights-of-Way.
(C) Each applicant that shall submit anon-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 12.
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(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 ofthe 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 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.
(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 14 [Transfer] of this Chapter;
(5) a provision that incorporates the requirements of Sections 17 [Construction Obligations], 18
[Conditions of Public Rights-of-Way Occupancy], and 19 [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 full responsibility for the adequacy of the design
of the Telecommunications Network.
SECTION 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 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.
SECTION 10 -APPLICABILITY.
(A) Sections 17 [Construction Obligations], 18 (Conditions of Public Rights-of-Way Occupancy] and 19
[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 20 [Indemnity] of this Chapter applies to a Provider that has a property interest in a Network.
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SECTION 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, a Provider
whose Telecommunications Network is used to serve Persons in the City shall pay the City a monthly
fee to be calculated as provided below for each Access Line owned or used by the Provider, as
calculated as of month-end, that is activated for use by an end user customer of the Provider or of
another Person as a Certificated Telecommunications Utility, by lease or otherwise, subject to
Subsection (F) below or of any other Person;
(1) 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 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
Monthly Calculation Amount
TYPE (1) or (2):
Residential $1.03
• Non-Residential $2.89
TYPE (3):
Private Line
Termination Point(s) $2.89
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,
rebundling 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
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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 seq.
(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 Public Street Crossing Fee of either the greater of:
(I) The Access Line Fee; or
(ii) $250.00.
This annual minimum fee is to compensate the City for the reasonable rental value of the Public
Rights-of-Way used by the Provider, and to recover the administrative cost in monitoring and
enforcing the provisions of this Chapter and of the Municipal Consent. Each Municipal Consent
shall provide that the minimum fee of (B) (ii) above may be adjusted once every three (3) years
by the City in its sole reasonable discretion to properly reflect the reasonable rental value of the
Public Rights-of-Way and administrative cost to the City, but such adjustment shall not exceed
$100 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, orwritings, the City shall
notify the Provider of the request in writing by facsimile transmission. The City shall furnish the
Provider with copies of all requests for Attorney General opinions pertaining to the Provider's
confidential information, reports, documents or writings. The City shall request an Attorney General's
Opinion before disclosing any confidential information, reports, documents orwritings, and shall furnish
the Providerwith copies ofAttorney General Opinion Requests as soon as practicable that may pertain
to the Provider's Confidential Information, reports, documents orwritings.
(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 anend-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.
• (I) 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
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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 11 above,
to each Access Line created by rebundling 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 Providerwho 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.
(ii) 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 ofthe 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 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 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.
This fee per Section 11(B), if applicable, shall be due on January 31 of every year of the Consent
Agreement.
SECTION 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 ofAccess
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
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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 fully cooperate in making records
available and otherwise assist the City examiner. The City examiner shall not inspect or copy or
otherwise demand production of customer specific information or any records, documents or other
writings the disclosure of which is prohibited by state or federal law, including the Electronic
Communications Privacy Act, 18 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 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 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 14. If the Provider does not
initiate compliance with Section 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.
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(E) Every Municipal Consent granted under this Section 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 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 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 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 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 18 [Conditions of Public Rights-of-Way
Occupancy], 19 [Insurance Requirements], 20 [Indemnity], and 21 [Renewal of Municipal Consent],
to the Provider.
SECTION 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 11.
SECTION 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 furnish the City accurate and complete information relating to the
construction, reconstruction, removal, maintenance, operation and repair of Facilities performed by the
Provider in the Public Rights-of-Way.
(C) The construction, expansion, reconstruction, excavation, use, maintenance and operation of a
Provider's Facilities within the Public Rights-of-Way are subject to applicable City requirements.
(1) A Provider may be required to place certain Facilities within the Public Rights-of-Way
underground according to applicable City requirements absent a compelling demonstration by
the Provider that, in any specific instance, this requirement is not reasonable or feasible nor is
it equally applicable to other similar users of the Public Rights-of-Way.
(2) A Provider shall perform operations, excavations and other construction in the Public
Rights-of-Way in accordance with all applicable City requirements, including the obligation to use
trenchless technology whenever commercially economical and practical and consistent with
obligations on other similar users of the Public Right-of-Way. The City shall waive the
• requirement of trenchless technology if it determines that the field conditions warrant the waiver,
based upon information provided to the City by the Provider. All excavations and other
construction in the Public Rights-of-Way shall be conducted so as to minimize interference with
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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 listed 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 astop-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 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
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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 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 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 awn 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 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.
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(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) A provider shall temporarily remove, raise or lower its aerial Facilities to permit the moving of houses
or other bulky structures, if the City gives written notice of no less than 48 hours. The expense of these
temporary rearrangements shall be paid by the party or parties requesting and benefitting from the
temporary rearrangements. Provider may require prepayment or prior posting of a bond from the party
requesting temporary move.
SECTION 19 -INSURANCE REQUIREMENTS.
(A) A Provider shall obtain and maintain insurance in the amounts reasonably prescribed by the City with
an insurance company licensed to do business in the State of Texas acceptable to the City throughout
the term of a Municipal Consent conveyed under this Chapter. 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 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 aself-insured entity as reasonably determined by the City, based on financial
information requested by and furnished to the City. The City's current insurance requirements are
described in Exhibit "A" attached hereto.
. (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 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 which may affect an existing carrier's obligation to defend and indemnify.
(E) An insurer has no right of recovery against the City. The required insurance policies shall protect the
Provider and the City. The insurance shall be primary coverage for losses covered by the policies.
• (F) The policy clause "Other Insurance" shall not apply to the City if the City is an insured under the policy.
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(G) The Provider shall pay premiums and assessments. A company which issues an insurance policy has
no recourse against the City for payment of a premium or assessment. Insurance policies obtained
by a Provider must provide that the issuing company waives all right of recovery by way of subrogation
against the City in connection with damage covered by the policy.
• SECTION 20 -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 21 -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.
SECTION 22 -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 underthis 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 23 - 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
-15-
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 24 -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 17 and 18 or as otherwise provided by
law. Municipal Consents entered into pursuant to this Ordinance are performable in Tarrant County, Texas.
SECTION 25 -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.
(B) Material breaches of a Municipal Consent specifically include, but are not limited to, continuing
violations of Sections 11 [Compensation to City], 17 [Construction Obligations] and/or 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 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 termination of its consent. Such notice
shall state the grounds for termination alleged by City.
SECTION 26 -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.
SECTION 27 -EFFECTIVE DATE.
. This Telecommunications Ordinance takes effect on December 8, 1998.
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PRESENTED and given first reading on the 12th day of January, 1999, at a regular meeting of the City
Council of the City of Richland Hills.
PRESENTED and given second reading and approved this 26th day of January, 1999, at a regular
meeting of the City Council of the City of Richland Hills, Texas, by a vote of 4 ayes, 0 nays,
and abstpnti0hsr.•
lf' W
. y.a -
- a ~
~ f ' ; C. F. Kelley, Mayor
_v'' i"'y
ATTEST: r
\ ~3
P , p ~ ~ y 6
ern Wil ~ ,City Secretary
AS TO ~
C Atto ey
•
-17-
• CITY OF RICHLAND HILLS, TEXAS
APPLICATION FOR MUNICIPAL CONSENT FOR USE OF THE PUBLIC
RIGHTS-0F-WAY BY A TELECOMMUNICATIONS SERVICE PROVIDER
RETURN TO: City of Richland Hills
Department:
3200 Diana Drive
Richland Hills, Texas 76118
APPLICATION FEE: $850.00*
NAME OF APPLICANT:
*Applicant may receive a credit against future payments to the City pursuant to
the Municipal Consent in the amount of the Application Fee.
INSTRUCTIONS
Complete the Application using information for the most recently completed fiscal
year. When providing the requested data, please specify whether it is actual or
estimated and for what fiscal year. Return the completed Application to the address
above, with the Application Fee.
In the event you become aware of any change in data while the application is
pending, you must file supplemental information reflecting such change in data.
Please indicate each question number immediately above the response to the
question.
The City will maintain confidentiality of any information provided pursuant to this
application to the extent permitted by law, when applicant notifies the City of the
confidential nature of the information, in writing in a conspicuous manner.
While not required for the Consent, to protect the public safety, an applicant may be
asked to provide documentation as to compliance with the E-911 requirements, if
they are applicable, which may include PUC filings. City will notify applicant of this
requirement.
The City reserves the right to request additional information of the applicant as it
relates to the use of the public rights-of-way.
I. IDENTIFICATION
1. State applicant's name, address, telephone number, fax number, a contact
person, and describe the business organization of applicant including
whether applicant is:
(Check one:)
a. an individual;
• b. a corporation;
Application for Municipal Consent for Use of the Public Page 1
Rights~f--Way by a Telecommunications Service Provider
• c. an unincorporated association;
d. a limited partnership;
e. a general partnership; or
f. any other legal entity (specify).
2. If applicant is a corporation, or controlled by a corporation, attach as
Exhibit "A" reasonable evidence of proper incorporation, such as a copy of
the state issued certificate of incorporation, or if certificated by the PUC,
the PUC certificate (or certificate number) in the corporate name.
3. If applicant is an unincorporated association or partnership:
a. information regarding the principal owners (greater than 10%) and
ultimate beneficial owners, however designated; and
b. indicate the legal organization of the applicant, and cite the laws
under which it is organized.
4. Name any affiliates (in whatever form) of the applicant that will use the
network. Additional information on the affiliate and the use may be
requested to determine if they need a separate agreement.
• II. PROPOSED SERVICES
1. List generally the type of telecommunications services applicant proposes
to provide at present and, to the extent known, any services which may be
provided in the future. Additional information may be requested to
determine if a separate agreement may be needed i.e., cable franchise or
agreement to operate an open video system.
2. While this is not necessary fora municipal consent, please answer if
applicable. Does the applicant hold (or has applied for) any certificate of
authorization from the State Public Utility Commission or the Federal
Communications Commission relevant to the proposed telecommunications
services to be provided in the City. (provide agency file identification
number, date of filing and a copy of authorization documentation)
III. PROPOSED FACILITIES USE
1. Is applicant proposing to (check all boxes which apply):
a. resell communications services purchased
from other providers?
Yes No
•
Application for Municipal Consent for Use of the Public Page 2
Rights-of--Way by a Telecommunications Service Provider
• b. Lease or other wise acquire access to
facilities or "network elements" from
other providers {sometimes called a
"rebundler" or facility "reseller")?
Yes No
c. construct, own and/or control facilities
in the public rights-of-way?
Yes No
(1) either sell or lease capacity on
the network or of the network
elements of its system?
Yes No
(2) sell physical components of its
system (i.e., fiber strands,
conduit)
Yes No
If applicant has checked only "a" in response to the previous question, go to Part
IV; if applicant has checked "b", but not "c", complete question 4, if applicant
has checked "c", complete questions 2-3.
2. Please provide, to the extent known, a brief description of applicant's
proposed facilities and file as Exhibit "B", a block map marked with the
• proposed routing of any facilities, to include whether they are to be
underground or overhead. Also include a brief description of existing
underground utilities (i.e., water, sewer, gas, electric, telephone, cable,
other). Also include in detail any proposed removal or relocation of trees,
landscaping or other physical structures in the public rights-of-way.
3. If the proposed facilities are to be placed in and/or along City streets and
rights-of-way, submit an estimate of the distance (linear footage and
maximum width measurement} of the facilities to be placed in the public
rights-of-way, to the extent known.
4. If applicant does not own the facilities, describe generally any relevant
lease agreements or interconnection arrangements allowing applicants use
of any facilities and the name of the facility/network element owner from
whom the facilities are leased.
IV. PAYMENT OF MUNICIPAL FEES
Applicants that only check Box 1(a) in Section III may remit fee payments directly to
the City or through another provider.
1. Do you wish to remit fees through another provider?
Yes
No
•
Application for Municipal Consent for Use of the Public Page 3
Rights-of--Way by a Telecommunications Service Provider
• 2. If you have answered yes above, please identify the provider(s) through
which applicant has arranged to remit municipal consent fees. (Additional
documentation may be required)
Note: Any municipal consent holder is required to report to the City changes in
operations which may affect the availability of this payment option.
V. USE OF RIGHTS-0F-WAY REQUIREMENTS
Check appropriate box:
The applicant has reviewed the City's Telecommunications Ordinance and
understands and can provide the appropriate insurance and bonds and can comply
with the various construction requirement in the rights-of-way.
Yes
No
APPENDIX -DEFINITIONS
1. Affiliate means any entity who controls, is controlled by, or is under
common control with the applicant. There is a presumption of control if
applicant owns (or is owned by) at least 25% of the affiliate's stock or
assets.
. 2. Control means effective control or a 25% or greater ownership interest.
3. Facilities means any transmission media used to provide
telecommunications services (whether fiber, cable, or wire).
EXHIBITS
A - Corporation/PUC/FCC exhibits.
B -Block map of the proposed facilities route.
•
Application for Municipal Consent for Use of the Public Page 4
Rights-of--Way by a Telecommunications Service Provider
• OATH
THE STATE OF TEXAS §
COUNTY OF TARRANT §
I, ,being duly sworn, file this application as
(indicate relationship to Applicant, that is owner,
partner, title as officer of corporation, or other authorized representative of
Applicant); in that capacity I am authorized to file and verify all data in this
application.
I am personally familiar with the books and records from which information
herein was secured, personally completed or supervised the preparation of this
application and all matters set forth are made in good faith, are true and correct,
and accurately represent the financial and legal condition of applicant.
AFFIANT
SUBSCRIBED AND SWORN BEFORE ME, a Notary Public in and for the State
and County above-named, on this the day of , 1999.
Notary Public, STATE OF TEXAS
51 lrhlib/020399
•
Application for Municipal Consent for Use of the Public Page 5
Rights-of--Way by a Telecommunications Service Provider
~
• CITY OF RICHLAND HILLS, TEXAS
Municipal Consent to Use the
Public Rights-of--Way
TELECOMMUNICATIONS PROVIDER:
CONTACT NAME:
TELEPHONE NUMBER:
ADDRESS:
CITY/STATE/ZIP CODE:
EFFECTIVE DATE:
EXPIRATION DATE:
THIS CONSENT IS AUTHORIZED BY ORDINANCE NO.:
ADOPTED ON:
•
•
a
• MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-0F-WAY
1. PURPOSE AND INTENT:
THIS MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-OF-WAY (the
"Consent") is made and entered into as of 1999, (the "Effective
Date") by and between the City of Richland Hills, Texas, a city duly organized
under the applicable laws of the State of Texas, (hereinafter referred to as "City"),
and ("Provider").
WHEREAS, the City, pursuant to federal law, state statutes, and local
ordinances, may consent to one or more 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
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-0F-WAY Page 1
• 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 TRIII9VIING.
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.
•
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• 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;
(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
54.204-54.20b of the Texas Utilities Code, as set forth in (2) above, the
• provisions of the indemnity shall survive the expiration of this Municipal
Consent.
MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-0F--WAY Page 3
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 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 or Telecommunication
Network, the Provider shall comply with appropriate sections of the
Telecommunications Ordinance.
•
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• 13. SERVICE OF NOTICE.
13.1 All notices required or permitted to be given to either party by the other
party under any provisions of this Consent shall be in writing and shall be
deemed served:
(a) When delivered by hand or by Federal Express or similar service to
that party's address set forth below during normal business hours; or
(b) When mailed to any other person designated by that party in writing
herein to receive such notice, via certified mail, return receipt
requested.
13.2 Notice shall be given to the following:
(a) If to City:
City Manager, City of Richland Hills
3200 Diana Drive
Richland Hills, Texas 76118
(b) If to Provider:
•
14. FORCE MAJEURE.
Any delay, preemption, or other failure to perform caused by any factor beyond
the parties' reasonable control, such as an act of God, labor dispute, 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.
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.
MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-0F-WAY Page 5
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.
ACCEPTED: ~
City of Richland Hills, Texas
"Provider"
By: By:
Its: Its:
S l Orhlib/012099
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