HomeMy Public PortalAboutOrdinance No. 855-99 02-23-1999 • ~ • ORDINI-ONCE NO. 855-99
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 N~'ch 1 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 Southwestern Bell Telephone Compan~'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.
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.
•
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• 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 TRII~~A~IIIVG.
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.
•
MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-0F--WAY Page 2
• 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.
•
MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-0F-WAY Page 4
.•t
• 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:
Director -External Affairs
Southwestern Bell Telephone Company
1240 Park Place, Floor 1
• Hurst, Texas 76053
14. FORCE 14tAJEURE.
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 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.
APPROVED UPON SECOND READING ACCEPTED:
gON THIS 2T3R~D DUA~YI SOF SF~E'BRUARY, 1999
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"Provider"
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MUNICIPAL CONSENT TO USE THE PUBLIC RIGHT'S-0F--WAY Page 6
CITY OF RICHLAND HILLS, TEXAS
• Municipal Consent to Use the
Public Rights-of--Way
TELECOMMUNICATIONS PROVIDER: Southwestern Bell Telephone Company
CONTACT NAME: Gary Terry, Director -External .Affairs
TELEPHONE NUMBER: (817) 338-6764
ADDRESS: 1240 Park Place, Floor 1
CITY/STATE/ZIP CODE: Hurst, Texas 76053
EFFECTIVE DATE: march 1, 1999
EXPIRATION DATE: February 28, 2004
THIS CONSENT IS AUTHORIZED BY ORDINANCE NO.: 855-99
ADOPTED ON: February 23, 1999
CITY OF RICHLAND HILLS
APPLICATION FOR MUNICIPAL CONSENT FOR USE OF THE PUBLIC
RIGHTS-OF-WAY BY A TELECOMMUNICATIONS SERVICE PROVIDER
(Rev. 12/02/98 )
RETURN TO: City of Richland Hills
Department:
3200 Diana Drive
Richland Hills, Texas 76118
APPLICATION FEE: $850.00*
NAME OF APPLICANT: Southwestern Bell Telephone Company
*Applicant shall 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 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.
•
Application for Municipal Consent for Use of the Public Page 1
Rights-of-Way by a Telecommunications Service Provider
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. X a corporation;
c. an unincorporated association;
d. a limited partnership;
e. a general partnership; or
f. any other legal entity (specify)
Southwestern Bell Telephone Company is wholly owned by its parent company, SBC
Communications Inc. Among other national and international subsidiaries owned
by SBC Communications are the following which provide products to the public in
Texas:
• Southwestern Bell Messaging Services
Southwestern Bell Wireless
Southwestern Bell Video Services
Southwestern Bell Yellow Pages
Other potential users of the Network will include only those entities holding a
Certificate of Operating Authority (COA) or Special Provider Certificate of
Operating Authority (SPCOA) issued by the Public Utility Commission of Texas for
use in the area that includes the City of Richland Hills.
Any notice or contact with SWBT pertaining to the Ordinance should be directed
to:
Southwestern Bell Telephone Company
Gary Terry
Director -External Affairs
1240 Park Place, Floor 1
Hurst, Texas 76053
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.
• On April 3, 1978, SWBT was granted CCN 40079, Certificate of Convenience and
Necessity, by the Public Utility Commission of Texas which authorizes SWBT to
Application for Municipal Consent for Use of the Public Page 2
Rights-of-Way by a Telecommunications Service Provider
provide telecommunications service in various geographic regions of the state,
including the area encompassed within the incorporated limits of the City of
• Richland Hills.
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.
As the incumbent local exchange carrier, SWBT will rely on its extensive network of
existing facilities to continue service to its customers in the City of Richland Hills.
As new areas of the city are developed, it may become necessary for SWBT to
• extend or reroute facilities to serve those areas. Under the obligations of the CCN
granted by the Texas Public Utilities Commission, Southwestern Bell Telephone
Company is required to provide service to any customer within its certificated area.
Therefore, Southwestern Bell Telephone Company would construct and extend its
facilities to serve any customer requesting service, and would do so in compliance
with the applicable construction rules and requirements of the City. Since such
expansion and development is unknown, routes of any required additions to existing
facilities are also unknown, thus preventing detail description of other facilities
already in the Rights-of-Way. Likewise, identification of obstructions along routes is
not presently possible. Once such routes are defined, SWBT will adhere to the
standards for construction described in the Ordinance and will collaborate on
construction of new facilities on a case-by-case basis. As required by the City,
SWBT will follow any permitting procedures provided for in Ordinance No. 852-99.
2. While this is not necessary for a municipal consent, please answer if applicable. Does
the applicant hold (or has applied for) 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)
Please see response to Section 1 Question #2.
• III. PROPOSED FACILITIES USE
1. Is applicant proposing to (check all boxes, which apply):
Application for Municipal Consent for Use of the Public Page 3
Rights-of-Way by a Telecommunications Service Provider
a. resell telecommunications services purchased
• from other providers? X
Yes No
b. lease or otherwise acquire access to facilities or
"network elements" from other providers
(sometimes called a "rebundler" or facility "reseller")? X
Yes No
c. construct, own and/or control facilities in the
public rights-of-way? X
Yes No
(1) either sell or lease capacity on the network or of
the network elements of its
system? X
Yes No
(2) sell physical components of its system?
(i.e., fiber strands, conduit) X
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. (If an existing provider has authority to use the rights-of-way,
questions 2-3 only apply to facilities to be constructed after the date of the Municipal
Consent, to the extent known).
2. Please provide, to the extent known, a brief description of applicant's proposed
facilities and file as Exhibit "A," a block map marked with the proposed routing of any
facilities, to include whether they are to be underground or overhead, 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.
Please see response to Section II - No. 1.
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.
Please see response to Section II - No.1
4. If the 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.
Application for Municipal Consent for Use of the Public Page 4
Rights-of-Way by a Telecommunications Service Provider
IV. PAYMENT OF MUNICIPAL FEES
• Applicants that only check Box 1(a) in Section III may remit fee payments directly to the City or
through another provider.
1. Do you wish to remit fees through another provider?
Yes
No
2. If you have answered yes above, please identify the provider(s) through which
applicant has arranged to remit municipal consent fees. (Additional documentation
may be required)
PART V. USE OF RIGHTS-OF-WAY REQUIREMENTS
Check the 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 requirements in the rights-of-way.
Yes X
No
SWBT respectfully requests a five year term for the Municipal Consent and that the
• effective date would be March 1, 1999.
CERTIFICATION OF APPLICANT
I, Robert W. Burton, Area Manager -Municipal Affairs, file this application as an
authorized representative of Southwestern Bell Telephone Company, and in that capacity I am
authorized to file this application and to certify that it is accurate to the best of my knowledge.
southw~tem eea T«~»
Area Manager-M~NNgpa1 Afakst
Three Bell Plata. A00111 1110
Dallas, Texw 7520? _ ~
•
Application for Municipal Consent for Use of the Public Page 5
Rights-of-Way by a Telecommunications Service Provider