HomeMy WebLinkAboutOrdinance No. 99-32 , . . � , _�� , , . , �
ORDINANCE NO. 9 9-3 2
AN ORDINANCE OF THE CITY OF FRIENDSWOOD, TEXAS,
PROVIDING RULES AND REGULATIONS GOVERNING THE USE OF
CITY RIGHT5-OF-WAY BY PROVIDERS OF TELECOMMUNICATIONS
SERVICES; PROVIDING FOR COMPENSATION FOR SUCH USE;
PROVIDING A PENALTY OF AN AMOUNT NOT TO EXCEED $2000
FOR EACH DAY OF VIOLATION HEREOF; PROVIDING FOR
SEVERABILITY; AND REPEALING ALL ORDINANCE5, OR PARTS OF
ORDINANCES INCON5ISTENT OR IN CONFLICT HEREWITH.
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WHEREAS, the City Council of the City of Friendswood, Texas (the "City"), seeks to
promote competition in the provision of Telecommunications Services within the City and to
encourage the availability of such services to all residences and businesses therein; and
WHEREAS, in accordance with law, the City Council desires to exercise the City's
historical rights to control, manage, and regulate the use of its Public Rights-of-Way, and to
the extent permitted by law, to receive fair and reasonable compensation for such use, on a
competitively neutral and nondiscriminatory basis; and
WHEREAS, pursuant to law, the City Council has the power and authority to regulate,
in a nondiscriminatory manner, the use of its Public Rights-of-Way by Telecommunications
Providers, and to receive reasonable compensation therefore; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FRIENDSWOOD,
TEXAS:
Section 1. Recitations adopted. The facts and matters set forth in the preamble of
this Ordinance are hereby found to be true and correct.
Section 2. Purpose.
2.01 Protection of Rights-of-Way; Neutrality. The purpose of this
Ordinance is to establish a competitively neutral policy for the use, by
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Telecommunications Providers, of the City's Public Rights-of-Way, and to enable the
City to:
2.01.01 Minimize congestion, inconvenience, visual impact, costs,
and other adverse effects which would likely result from the unregulated
placement of Telecommunications facilities within Public Rights-of-Way;
2.01.02 Require, to the extent permitted by law, that
Telecommunications Providers pay fair and reasonable compensation for the use
of Public Rights-of-Way;
2.01.03 Promote competition among Telecommunications
Providers and encourage the universal availability of Telecommunications
Services to all residents and businesses of the City;
2.01.04 Conserve the limited physical capacity of such Public
Rights-of-Way held in public trust by the City;
2.01.05 Assure that Telecommunications Providers having
facilities within the City comply with applicable ordinances, rules, and
regulations of the City; and
2.01.06 Assure that the City fairly and responsibly preserves and
protects public health, safety, and general welfare.
2.02 Services Not Regulated. It is not the policy or intention of this
Ordinance to prohibit, regulate, license, or franchise the provision of any service
within the City, and no provision of this Ordinance shall be so construed; any term or
condition contained herein, or in any License Ordinance adopted pursuant hereto, shall
relate to the rights of a Person to make use of the Public Rights-of-Way, not in
limitation of any right granted by the Texas Public Utility Commission, the Federal
Communications Commission, or their successors.
2.03 Existing Franchise Rights Preserved. This Ordinance shall not apply
to a Telecommunications Provider operating within the City on the effective date hereof
pursuant to a valid existing franchise ordinance; provided, however, upon the
termination of any such franchise the Telecommunications Provider to which it applies
shall be subject to the provisions hereof in the same manner as any other
Telecommunications Provider. Notwithstanding the foregoing, any
Telecommunications Provider operating within the City on the effective date hereof
pursuant to a valid franchise ordinance may, at such Provider's option, apply for the
issuance of a license hereunder and the early termination of such franchise. Such
franchise shall be deemed terminated upon the effective date of such license. Nothing
in this Ordinance shall be construed to diminish the right or ability of the City to
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require any other user of Public Rights-of-Way to secure appropriate City
authorization, including, without limitation, Cable Service providers.
Section 3. Definitions. For the purposes of this Ordinance the following words,
terms, and phrases shall have the meanings ascribed thereto, unless the context of their usage
clearly indicates otherwise:
3.01 "Access Line" shall mean a unit of ineasurement representing (1) each
switched transmission path of the transmission media within the Public Right-of-Way
extended to the end-user customer's premises network interface within the City that
allows delivery services within the City; (2) each termination point or points of a non-
switched telephone or other circuit consisting of transmission media connecting specific
locations identified by, and provided to, the end-user for delivery of non-switched
Telecommunications Services within the City; or (3) each loop provided to any Person
as an unbundled network element, pursuant to an Agreement under Section 252 of the
Federal Telecommunications Act of 1996, used for the provision of
Telecommunications Services. Interoffice transport and other transmission media that
do not terminate at an end-user customer's network interface device are not Access
Lines that would be separately identified and counted for assessing monthly line fees.
3.02 "Applicant" shall mean a Person who files an application with the City,
pursuant to Section 5 hereof, to obtain a license to use or place Network Facilities
within the City's Public Rights-of-Way, whether by means of the Person's own
facilities or by purchase or lease of one or more Network Facilities from another
Provider of Telecommunications Services.
3.03 "Cable Act" shall mean the Cable Communications Policy Act of 1984,
47 U.S.C. § 532, et seq., as amended.
3.04 "Cable Operator" shall mean a Person providing or offering to provide
"Cable Service" within the City as that term is defined in the Cable Act.
3.05 "Cable Service" shall have the same meaning provided by the Cable
Act.
3.06 "City" shall mean the City of Friendswood, Texas, a home rule
municipal corporation.
3.07 "City Council" shall mean the governing body of the City.
3.08 "City property" shall mean all real property owned by the City, other
than Public Rights-of-Way, as that term is defined herein, and all other properties held
in a proprietary capacity by the City, which are not subject to right-of-way licensing as
provided in this Ordinance.
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3.09 "Federal Communication Commission" or "FCC" shall mean the
federal agency or its successor agency that is the regulatory authority over
Telecommunications Providers.
3.10 "Licensee" shall mean a Telecommunications Provider that has been
issued a license pursuant to a License Ordinance.
3.11 "License Fee" shall mean the compensation payable to the City by a
Licensee for the use and occupancy of Public Rights-of-Way.
3.12 "License Ordinance" shall mean an ordinance adopted pursuant to this
Ordinance which grants to a Telecommunications Provider the authority and license to
place, operate, and utilize its Network Facilities within the Public Rights-of-Way of the
City for the purpose of providing Telecommunications Services.
3.13 "Network Facilities" shall mean conduits, ducts, manholes, vaults,
tanks, towers, wave guides, optic fiber, microwave dishes, transmitters, antennas and
antenna structures, radio equipment, and any associated converters, electrical lines,
communications lines, transmission lines, cables, wires, amplifiers, switches, utility
equipment, or other such object, device, facility, or appurtenance, including
attachments and encasements therefor, whether underground or overhead, which are
designed, installed and constructed within the Public Rights-of-Way for the purpose of
producing, receiving, amplifying, switching, transmitting, or distributing
communication signals, whether analog or digital, whether for voice, data, or other
purposes, and whether by or through "wired" or "wireless" systems, to or from
customers, subscribers or locations within the corporate limits of the City. Network
Facilities shall not include airwaves above a right-of-way. Network Facilities shall not
include such facilities to the extent that they are solely used to provide Cable Services.
3.14 "Person" shall mean an individual, corporation, association,
partnership, joint venture, firm, limited liability partnership, joint venture, joint stock
company or association, or other entity.
3.15 "Public Rights-of-Way" shall mean the surface, the air space above the
surface, and the area below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, easement, or similar property in which the
City holds a property interest (fee title, easement or otherwise) or over which the City
exercises any rights of management or control, and which, consistent with the purposes
for which it was acquired or dedicated, may be used for the installation and
maintenance of Network Facilities. The term shall not include the airwaves above a
Public Right-of-Way with regard to Wireless Telecommunications Services.
3.16 "Public Utility Commission of Texas" or "PUC" shall mean the Texas
state agency having jurisdiction over Telecommunications Providers.
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3.17 "Telecommunications" shall mean the transmission, between or among
points specified by the user, of information of the user's choosing, without change in
the content of the information as sent and received.
3.18 "Telecommunications Provider" or "Provider" shall mean a Person
who offers Telecommunications Services to customers through Network Facilities
located in the Public Rights-of-Way.
3.19 "Telecommunications Services" shall mean the provision of
Telecommunications provided through Network Facilities, excluding Cable Services,
but which include, without limitation, (1) Access Lines provided to end users or to
other Telecommunications companies for the purpose of voice, data, or non-cable video
transmission; (2) non-switched telephone circuits consisting of transmission media
connecting specific locations identified by, and provided to, the end-user for delivery
of non-switched services within the City; (3) switched Access Lines for the distribution
of voice, data, and non-cable video transmission; and (4) any other Telecommunication
Services authorized by state or federal law.
3.20 "Wired Telecommunications Service" shall mean Telecommunications
Services provided through Network Facilities which transmit and receive sounds,
pictures, or signals of any kind by aid of wire, cable, or other like connection between
the points of origin and reception of such transmission, and includes both one-way and
two-way services.
3.21 "Wireless Telecommunications Service" shall mean
Telecommunications Services provided through Network Facilities which transmit and
receive sounds, pictures, or signals of any kind by radio or microwave signals between
the points of origin and reception of such transmission, and includes both one-way and
two-way services.
Section 4. Unauthorized Use of Public Rights-of-Way.
4.01 Authorization to Use Public Rights-of-Way Required. It shall be
unlawful for any Person to lay, construct, operate, offer for lease, or make available
for any use whatsoever, any Network Facility across, along, over, above, or under any
Public Right-of-Way within the limits of the City, for any Private or Commercial
Purpose, unless the right to do so has been granted to such Person pursuant to a
License Ordinance adopted by City Council in accordance herewith.
4.02 Liability for Fees. Without limitation of other remedies available to the
City, Persons making use of the Public Rights-of-Way of the City in violation of this
Ordinance, or otherwise without valid consent of the City, shall be liable for all fees
authorized by this Ordinance effective as of the date of inception of such use.
Section 5. Public Rights-of-Way Use License.
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5.01 Application Required; Contents. Any Person proposing to place
Network Facilities within Public Rights-of-Way shall submit an application to the City.
Applications may be filed in the office of the City Secretary. An application shall
describe in general terms all services the Applicant will offer or provide, and shall
outline the Applicant's proposed Network Facilities, including a description of the
physical characteristics of the Network Facilities proposed to be installed in the Public
Rights-of-Way. The City Council may require the following information:
5.01.01 The identity of the Applicant and all affiliates of the
Applicant which may use in any manner the Network Facilities to provide
Telecommunications Services within the City;
5.01.02 A general description of the principal transmission
medium that will be used by the Applicant to offer or provide such
Telecommunications Services;
5.01.03 Preliminary engineering plans, specifications, and a
network map of planned or projected new Network Facilities to be located
within the City, all in sufficient detail to identify:
(a) The location and route requested for the Applicant's
proposed Network Facilities;
(b) The location of all known overhead and underground
public utility, Telecommunications, cable, water, sewer, drainage and
other facilities in the Public Rights-of-Way along the proposed route;
and
(c) The specific trees, structures, improvements, facilities, or
obstructions, if any, that the Applicant proposes to temporarily or
permanently remove or relocate;
5.01.04 If the Applicant is proposing to install overhead facilities,
evidence that surplus space is available, and, if existing utility poles are to be
utilized, evidence that their use is authorized;
5.01.05 If the Applicant is proposing to install underground
Network Facilities, evidence of whether surplus duct or conduit space is
available, and, if existing ducts or conduits are to be utilized, evidence that their
use is authorized.
5.01.06 A preliminary construction schedule and completion dates;
5.01.07 A preliminary traffic control plan;
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5.01.08 Information to establish that the Applicant will obtain all
other governmental approvals and permits prior to construction and operation of
the Network Facilities and prior to offering or providing the
Telecommunications Services;
5.01.09 Whether the Applicant intends to provide Cable Service or
other video programming service, such as an Open Video System, as defined in
the Cable Act, together with sufficient information to determine whether such
service is subject to cable franchising under the Cable Act;
5.01.10 A narrative description of Applicant's existing Network
Facilities in the City that the Applicant intends to use or lease;
5.01.11 The area or areas of the City the Applicant desires to
serve and a schedule for build-out to the entire City, if any; and
5.01.12 Such other and further information relating to the use of
the Public Rights-of-Way that may be reasonably requested by the City Council.
5.02 Standards for Approval. In making its determinations regarding
adoption of License Ordinances, the City Council shall consider the legal authority of
the subject Applicant to provide Telecommunications Services within the City, with due
regard for applicable federal and state telecommunications laws, regulations, and
policies.
5.03 License Ordinance. License Ordinances adopted by City Council shall
be deemed to incorporate all provisions of this Ordinance. A License Ordinance shall
be deemed as authorization for the applicable Licensee to use the Public Rights-of-Way
for the provision of Telecommunications Services. No Network Facility shall be
located, or made use of, in any Public Right-of-Way in a manner inconsistent with the
provisions of this Ordinance and/or the License Ordinance. No License Ordinance
shall be construed to grant access to "City property," as defined herein, unless
specifically included therein. No Licensee shall use a Public Right-of-Way or allow
any other Person to use Licensee's Network Facilities in a Public Right-of-Way, except
as provided in the applicable License Ordinance. Notwithstanding the foregoing, a
License Ordinance shall not be required for a Person engaging solely in the resale of a
Licensee's services or the provision of services by unbundled network elements
obtained from a Licensee, provided that the applicable License Ordinance authorizes
the Network Facilities involved and the Person does not own or operate any Network
Facilities in the Public Rights-of-Way.
5.04 Conditions of License. The issuance of any license pursuant to this
Section shall be subject to the following additional standards:
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5.04.01 Interference with Public Use Prohibited. All Licensees
shall lay, construct, erect, operate, lease, maintain, repair, and replace their
Network Facilities in such a manner as to not unreasonably interfere with the
use of Public Rights-of-Way, public streets and sidewalks, or other public or
private ways.
5.04.02. Compliance with Law. Licensees are explicitly subject
to the police powers of the City and the City's rights as a property owner under
state and federal laws. All work done by Licensees in connection with the
construction, expansion, reconstruction, maintenance, or repair of its Network
Facilities in Public Rights-of-Way shall be subject to and governed by all
applicable federal, state, and City rules, regulations, laws, and ordinances. The
provisions of this subsection shall apply to all Licensees and to any other Person
owning, operating, or in control of Network Facilities located within Public
Rights-of-Way.
5.04.03 Construction Regulations.
(a) Excavations. All excavations and other construction in
the Public Rights-of-Way shall be performed in accordance with all
applicable state, federal, and City regulations.
(b) Interference with Use of Property. All construction
within Public Rights-of-Ways shall be undertaken so as to minimize
interference with the use of public and private property and in
accordance with any lawful direction given by the City under the police
and regulatory powers of the City.
(c) Construction Permits. Before commencing any work
which involves the construction, installation, expansion, repair, removal,
or maintenance of Network Facilities within a Public Right-of-Way, a
Licensee shall apply for and obtain a construction permit therefor.
Provided, however, acquisition of construction permits shall not be
required for any such work which does not involve the alteration or
disturbance of the surface of the Right-of-Way. Each permit application
shall include a written work description, including construction
drawings, showing the Network Facilities' location (or proposed
location) and the estimated depth of the Network Facilities (existing and
proposed) in the immediate area of the proposed new construction. Such
drawings shall be reviewed by the City engineer and, if disapproved,
returned with comments setting forth the reasons for such disapproval.
Approvals shall not be unreasonably withheld or delayed. Except as
otherwise specifically provided herein, Licensees shall not commence
any such work until applicable construction permits have been approved
therefor. Upon completion of any such work, the Licensee shall
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promptly restore the surface of the affected Public Right-of-Way to a
condition which equals or exceeds its condition prior to such
construction. To such end, the Licensee shall replace excavated areas
with the same type of materials as those removed, unless alternate
equivalent materials are approved by the City. Any excavated areas
showing depressions within one (1) year following such work shall be
restored by the Licensee. Licensees may excavate Public Rights-of-Way
only for the purpose of, and to the extent reasonably required for, the
construction, installation, expansion, repair, removal, or maintenance of
its Network Facilities. Review and approval by the City of construction
permits as provided herein shall not constitute any representation or
warranty regarding the sufficiency of design or construction of the
Network Facilities.
(d) Emergency Repairs; Restoration of Service.
Notwithstanding the foregoing paragraph (c), during emergency
situations where, in the good faith judgment of a Licensee, failure to act
immediately could jeopardize public health, safety, or general welfare,
or in situations where a repair is necessary to restore service to a
customer, Licensees may perform repairs to facilities within Public
Rights-of-Way which involve the alteration or disturbance of the surface
of such Public Right-of-Way, without prior notification to the City. In
such cases, the Licensee shall notify the director of public works for the
City by the close of business on the next business day, stating the nature
of such repairs and, if not completed, the length of time estimated to
complete same. The Licensee shall apply for the required approvals as
soon as reasonably practicable, and any work performed that is not
consistent with then applicable City standards shall be corrected upon
notice thereof from the City.
(e) Routine Maintenance. Routine maintenance on Network
Facilities located within Public Rights-of-Way shall be conducted in a
manner that is consistent with then-applicable City regulations governing
such work, if any.
(� Obstructions of Traffic. Any obstruction of vehicular or
pedestrian traffic resulting from construction or repair activities of a
Licensee, other than for emergency repairs, shall require prior
notification to the director of public works of the City. Any such work
shall be performed in a manner calculated to cause the least
inconvenience to the City and the public as is reasonably possible under
the circumstances. When a Licensee performs or causes to be performed
any work over or across a public street or sidewalk, or so closely
adjacent thereto as to create hazards for the public or itself, the Licensee
shall provide construction and maintenance signs and sufficient
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barricades and flag men at such sites as are reasonably necessary to
protect the public and the Licensee's equipment and workers. The
application of such traffic control devices shall be consistent with the
standards and provisions of the latest addition of the Texas Manual on
Uniform Traffic Control Devices. Appropriate warning lights shall be
used at all construction and maintenance zones where one or more traffic
lanes are being obstructed during nighttime conditions.
(g) Closing of Streets. If a Licensee's work requires the
obstruction of any street for a period longer than thirty (30) minutes, the
closure shall be performed in a manner approved by the director of
public works. The Licensee shall not wholly close any public street, but
shall at all times maintain a route of travel along and within any roadway
that is within a Public Right-of-Way; provided that, in cases of an
emergency, the director of public works may authorize the temporary
closing of a public street or sidewalk to allow the Licensee to complete
such emergency repairs if, in the opinion of the director of public works,
such closing is necessary to protect the safety of the general public.
(h) Construction Drawings. Within one hundred twenty
(120) days following completion of each segment of its Network
Facilities, or within one hundred twenty (120) days following any
material alteration or modification thereto, each Licensee shall supply
the City with a complete set of construction drawings for that segment,
or for the material alteration or modification thereof, unless the Licensee
certifies to the City, in writing, that such construction was completed in
accordance with the construction plans filed pursuant to Section
5.04.03(c) above, in which case such construction plans shall be marked
accordingly by the City and filed as the "permanent construction
drawings." For the purposes hereof, a material alteration or
modification of a Network Facility shall be deemed to have occurred if
such alteration or modification would render the existing construction
drawings inaccurate and/or misleading regarding the location of a
structural component thereof. Such drawings shall be of sufficient detail
to allow the City to determine the location of the Licensee's Network
Facilities with reasonable accuracy. In lieu of print documents, a
Licensee may, upon advance reasonable request, provide such drawings
and maps by other mediums, including electronic mediums, provided the
City has the capability to access such information.
5.04.04 Conservation of Public Rights-of-Way. To the extent
the City may be authorized by state or federal law to do so, and to the extent
reasonable under the circumstances then existing, the City may require a
Licensee to attach portions of their facilities to other facilities within the Public
Rights-of-Way owned and maintained by other Persons. A Licensee shall not
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be required to attach its facilities to the facilities of such other Persons if it is
shown that such Licensee would be subjected thereby to increased risks of
interruption to its service, to increased liability for accidents, or to unreasonable
delays in construction or availability of service, or if the facilities of such other
Person are not of the character, design, or construction required by, or are not
being maintained in accordance with, current practice, or are not available to
the Licensee on reasonable terms, including, without limitation, reasonable fees.
Insofar as is practical to do so, Licensees shall use existing Network
Facilities in the provision of their services; provided, however, nothing
contained herein shall be construed as limiting a Telecommunications Provider
from expanding its facilities to accommodate future growth and development.
Licensees shall provide information to the City relating to the location and/or
operation of their Network Facilities or services as may be reasonably necessary
for municipal planning purposes.
5.04.05 Relocation or Removal of Facilities. A Licensee may be
required to lower, place underground, relocate, or remove any Network Facility
within any Public Right-of-Way, without cost to the City, if reasonably
necessary, as determined by the City Council, to abate a condition actually or
potentially dangerous to public health or safety, or as may be reasonably
necessary to accommodate the construction, repair, maintenance, removal, or
installation of any City or other governmental entity's publicly funded project
within the City in, upon, or under Public Rights-of-Way, including, without
limitation, street construction and widening, water, sanitary sewer, storm
drains, street lights, and traffic signal conduits, or any other public facilities in,
upon, or under the Public Rights-of-Way. In the alternative, where the City
Council determines it to be feasible, a Licensee may be allowed to pay the
additional costs incurred for the design and/or construction of any such public
works project in a manner that would avoid the necessity of relocation or
removal of the Network Facilities. A Licensee shall be provided the
opportunity to collaborate in advance with the City and/or propose alternatives
in order to minimize cost, better schedule the work, and accommodate suitable
refinements and/or joint work with others.
In the event of any such requirement for lowering, placing underground,
relocating, or removing Network Facilities as herein provided, the Licensee
shall complete same as soon as is reasonably practicable following written notice
thereof by the City.
5.04.06 Timely Completion. If a Licensee fails to either (i)
commence or thereafter diligently prosecute any repair, refilling, lowering,
relocation, removal, or other work required by the City, or (ii) diligently
complete any work that disturbs a Public Right-of-Way, the City may cause the
work to be done or completed at the expense of the Licensee and may recover
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all such expense from the Licensee, together with all costs and reasonable
attorneys fees. Notwithstanding the foregoing, a Licensee shall be entitled to
notice and opportunity to cure during the Cure Period described and set forth in
Section 8.02 hereunder, and shall not be liable for any costs under this Section
unless such Licensee fails to timely complete during such Cure Period.
5.04.07 Abandonment of Obsolete Network Facilities.
Licensees shall remove Network Facilities when such Network Facilities are
obsolete, are no longer in service, and either create visual blight or create a
nuisance to the public; provided however, a Licensee shall not be required to
remove any Network Facility for which renovation or restoration is planned by
a Licensee, and which renovation or restoration is completed within a
reasonable period of time following abandonment. Provided further, no
Network Facility, or any material portion thereof, which is being utilized for
Telecommunications Services shall be deemed to be abandoned. When
permanent structures in Public Rights-of-Way are removed or abandoned, the
City shall be notified in writing of such removal or abandonment. The director
of public works may direct such remedial measures as the director may
determine are necessary for public safety and the integrity of Public Rights-of-
Way.
5.04.08 Bonding. A Licensee shall comply with all applicable
regulations of the City relating to the provision of bonds or other security which
may be required in connection with work in Public Rights-of-Way.
5.04.09 Temporary Rearrangement of Aerial Wires and
Cables. Upon request, a Licensee shall remove or raise or lower its aerial
Network Facilities temporarily to permit the moving of houses or other bulky
structures. The expense of such temporary rearrangements shall be paid by the
party or parties requesting same, excluding requests by the City. The Licensee
may require payment in advance. The Licensee shall be given a reasonable
amount of advance notice to provide for such rearrangement, but in no event
shall such notice be required to exceed thirty (30) days.
5.04.10 Tree Trimming. A Licensee is authorized to trim trees
upon and overhanging Public Rights-of-Way to the extent reasonably necessary
to prevent the branches thereof from coming in contact with the Licensee's
Network Facilities. At the option of the City, a Licensee may be required to
conduct tree trimming under the supervision and direction of the City through
the City official to whom such duty has been or may be delegated.
5.04.11 Term. The term of each license granted pursuant hereto
shall be as set forth in the License Ordinance, but shall not exceed five (5)
years.
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Section 6. Compensation; Books and Records.
6.01 Licensee Fees for Providers of Wired Telecommunications Services.
Licensees using Public Rights-of-Way for the provision of Wired Telecommunications
Services shall pay to the City a License Fee that is calculated by applying a monthly
charge for each Access Line owned, placed, operated, controlled or maintained by the
Licensee, during the month to which the Licensee Fee applies, for use by an end-user
or for another Provider that uses the Licensee's services or Network Facilities for the
provision of Telecommunications Services within the City. With regard to Persons
leasing, reselling, or otherwise using Licensee's Access Lines, if the Licensee does not
have sufficient information to determine the appropriate Access Line type, and, thus,
the appropriate fee rate to apply, then the higher line fee shall apply until such time as
the Person using the Access Lines provides to the Licensee sufficient written
information to determine the correct line fee. Notwithstanding the foregoing, a
Licensee shall not be liable for underpayment of License Fees resulting from the
Licensee's reliance upon the written information provided by any such Person using
Licensee's service or facilities for the provision of Telecommunications Services to
end-user customers. The License Fee payable to the City shall be the sum total of the
monthly charges to be applied to Access Lines, on a calendar month basis, as follows:
Monthly Charge (per Access Line) $_0. 9 4
6.01.01 Payment Due Dates; Calculation Report; Access Lines.
License Fees shall be paid quarterly, with such payments due and payable on or
before the forty-fifth (45th) day following the end of the calendar quarter for
which such payments apply. With every quarterly remittance, each Licensee
shall file a written report showing the number and type of Access Lines owned
or placed and maintained by the Licensee within the City that are activated for
end-user customers and other Telecommunications Providers at month's end, for
each of the three (3) calendar months to which such remittance applies. Such
report shall specifically identify Access Lines owned, placed, operated,
controlled, or maintained by the Licensee that are leased and/or used by Persons
who are not end-user customers. Such report shall show the number of Access
Lines by category, to the extent known. The report shall be used solely for the
purpose of verifying the number of the Licensee's Access Lines serving
premises within the City.
6.01.02 Exclusions for Certain Economically Disadvantaged
Customers. Lines terminating at customers' premises that are billed as
"Lifeline," "Tel-Assistance," or other services similarly discounted for the
purpose of advancing universal service to the economically disadvantaged, shall
not be included in the count of Access Lines for which the License Fee is
calculated.
FWD/TELECOM.ORD/10/20/99 13
. .._ -. , � . . ' �
6.01.03 Leased Network Facilities. Notwithstanding any other
provision contained in this Ordinance to the contrary, a Licensee shall not be
required to include in its monthly count of, and shall not be required to remit a
License Fee to the City based on, Access Lines that are resold, leased, or
otherwise provided to another Person if the other Person has furnished Licensee
with adequate proof that the Person will remit directly to the City a License Fee
based on those leased Access Lines.
6.02 License Fees for Providers of Wireless Telecommunications Services.
Licensees using Public Rights-of-Way for the provision of Wireless
Telecommunications Services shall pay to the City a License Fee that is calculated by
applying a monthly charge calculated in accordance with one of the following methods
described in this Section.
6.02.01 Per Subscriber/Customer Method. Licensees may elect
to pay a License Fee that is calculated by applying a monthly charge for each
subscriber/customer within the City that use the Licensee's services or Network
Facilities for the provision of Telecommunications Services. A monthly charge
shall be applied for each end-user subscriber/customer having a billing address
within the City. The License Fee payable to the City shall be the sum total of
the monthly charges to be applied to each subscriber/customer, on a calendar
month basis, as follows:
Monthly Fee (per subscriber/ customer) $0. 9 4
6.02.02 Gross Revenue Method. If the License Fee provided for
in Section 6.02.01 above would result in a fee which exceeds four percent (4%)
of the applicable Licensee's gross revenues from subscribers/customers within
the City, such Licensee may pay a License Fee which equals four percent (4%)
of the gross revenues received by such Licensee from subscribers/customers
within the City. For the purposes hereof, the term "Gross Revenues" shall
mean the gross dollar amounts received by the Licensee for Wireless
Telecommunications Services provided to subscribers/customers with billing
addresses in the City, but excluding (i) the monthly charges collected pursuant
to this Section, (ii) local, state, or federal taxes collected by the Licensee that
have been billed to subscribers/customers and separately stated on bills therefor,
and (iii) uncollectible revenues.
6.02.03 Facilities Charge Method. A Licensee providing
Wireless Telecommunications Services within the City which does not occupy
more than five hundred (500) linear feet, two hundred (200) square feet, or one
hundred (100) cubic feet of the Public Rights-of-Way for the location of its
Network Facilities, may pay an annual License Fee based on the actual Network
Facilities located within such Public Rights-of-Way. Such License Fees shall be
calculated in accordance with Public Right-of-Way use fee schedules as may be
FWD/TELECOM.ORD/10/20/99 14
adopted by the City Council from time to time and in effect at the time the
applicable License Ordinance is adopted.
6.02.04 Payment Due Dates; Calculation Report. License Fees
shall be paid quarterly, with such payments due and payable on or before the
forty-fifth (45th) day following the end of the calendar quarter for which such
payments apply. With every quarterly remittance, each Licensee shall file a
written report showing the number of subscribers within the City that are served
by the Licensee, the gross revenues received by the Licensee, or an inventory of
Network Facilities in the City's Public Right-of-Way, as applicable, for each of
the three (3) calendar months to which such remittance applies. Such report
shall specifically identify any Network Facilities owned, operated, or
maintained by the Licensee that are leased and/or used by Persons who are not
end-users. Such report shall show the number of subscribers of such Persons
leasing or using such facilities, if any, to the extent known. The report shall be
used solely for the purpose of verifying the License Fee payable to the City, as
herein provided.
6.02.05 Exclusions for Certain Economically Disadvantaged
Customers. Subscribers that are billed as "Lifeline," "Tel-Assistance," or for
other services similarly discounted for the purpose of advancing universal
service to the economically disadvantaged, shall not be included in the count of
subscribers for which the License Fee is calculated.
6.02.06 Leased Network Facilities. Notwithstanding any other
provision contained in this Ordinance to the contrary, a Licensee shall not be
required to include in its monthly count of subscribers, and shall not be required
to remit a License Fee to the City based on, subscribers that are served by
Network Facilities resold, leased, or otherwise provided to another Person for
consideration if (i) the other Person is operating pursuant to a valid license
under this Ordinance, and (ii) the other Person has furnished Licensee with
adequate proof that the Person intends to include its subscribers in its monthly
count to the City, the Person intends to remit to the City a License Fee based on
those subscribers, and the City has approved the arrangement.
6.03 License Fees for Providers Not Serving Customers Within the City.
Providers using Network Facilities within Public Rights-of-Way, but which serve no
customers within the City, other than itself, shall pay an annual License Fee based on
the facilities located within such Public Rights-of-Way, which fees shall be
commensurate with the fees paid by Providers serving customers within the City. Such
License Fees shall be calculatPd in accordance with Public Right-of-Way use fee
schedules as may be adopted by the City Council from time to time and in effect at the
time the applicable License Ordinance is adopted. This Fee shall be due on or before
July 15 of every year during the term of the license, prorated as applicable. A report
FWD/TELECOM.ORD/10/20/99 15
shall be submitted with each annual payment showing the calculation of the payment,
including necessary descriptions of the Network Facilities, as applicable.
6.04 Reporting Requirements. The forms required to be filed pursuant to
subsections 6.01.01, 6.02.01, and 6.04 above shall be accompanied by a written
statement, executed by a duly authorized officer or representative of the Licensee,
certifying that the information contained in such report is true and correct, to the best
of the officer or representative's knowledge and belief, after due inquiry. A copy of
the completed forms and the accompanying certified statements shall be filed with the
City Secretary of the City. Such forms shall be deemed confidential to the extent
permitted by law. Upon written request, Licensees shall verify the information
contained in such forms and, upon reasonable advance notice, all non-customer specific
records and other documents required for 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.
6.05 Late Payments; Default. Payments received after their due date shall
incur interest at the rate of ten percent (10%) per annum, compounded daily.
Notwithstanding the foregoing, failure of a Licensee to make a full payment within
thirty (30) days following the due date shall constitute an event of default.
6.06 Circumvention of License Fees Prohibited. Licensees shall not
circumvent payment of License Fees by bartering, by transferring rights, or by other
means that result in undercounting the number of Access Lines, or subscribers, as
applicable, as required herein. Capacity or services may be bartered if the imputed
Access Lines, or subscribers, are reported in accordance with this Ordinance.
6.07 Uncollectibles. A Licensee shall not be obligated to pay the City for
any Access Lines or subscribers for which revenues remain uncollectible.
6.08 No Release. No acceptance by the City of any payment by a Licensee
shall be construed as a release of, or an accord or satisfaction of, any claim that the
City might have for further or additional sums payable under the terms of this
Ordinance or a License Ordinance, or for any other performance or obligation of the
Licensee.
6.09 No Other Fees. License Fees paid hereunder shall be in lieu of any
permit, license, approval, inspection, or other similar fee or charge, including, but not
limited to, all general business License Fees customarily assessed by the City for the
use of the Public Rights-of-Way against Persons operating businesses similar to that of
Licensees. Further, such License Fees shall constitute full compensation to the City for
all of a Licensee's Network Facilities located within the Public Rights-of-Way,
including interoffice transport and other transmission media that do not terminate at an
end-user customer's network interface device, even though those types of Network
Facilities are not used in the calculation of a License Fee.
FWD/TELECOM.ORD/10/20/99 16
6.10 Records. Licensees shall retain and maintain all records, accounts, and
financial and operating reports necessary to establish compliance with the terms of this
Ordinance, for a period of not less than five (5) years.
Section 7. Indemni�cation and Insurance.
7.01 Indemnity. To the extent permitted by law, each Licensee shall
indemnify and hold the City harmless as follows:
The Licensee shall 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 Licensee's
acts or omissions; and (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 Licensee, its
agents, officers, employees, and subcontractors, City, its 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 Licensee, Licensee's subcontractors, City's officers,
agents, and employees, and third parties), arising out of, incident to,
concerning, or resulting from the negligent or willful acts or omissions
of the Licensee, its agents; employees, and/or subcontractors, in the
performance of activities pursuant to this Ordinance.
This indemnity provision is intended to include liability arising from the
City's alleged negligence, but only to the extent such liability arises out
of a claim or claims that the City was negligent in granting this License,
in regulating the conduct of Licensee under this License, or in failing to
prevent Licensee from acting in a negligent or wrongful manner.
The indemnity provision set forth above is:
(i) Solely for the benefit of the City and the Licensee and is
not intended to create or grant any rights, contractual or otherwise, to
any other Person or entity;
(ii) 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 Licensees under Sections 54.204-54.206 of the
Texas Utilities Code; and
FWD/TELECOM.ORD/10/20/99 17
(iii) Subject to the continued applicability of the provisions of
Sections 54.204-54.206 of the Texas Utilities Code, as set forth in (2)
above, the provisions of the indemnity shall survive the expiration of this
Ordinance.
If the authority granted by this Ordinance is terminated or is not
renewed, and the Licensee does not remove its Network Facilities from
the Public Rights-of-Way, the Licensee shall continue to indemnify and
hold harmless the City pursuant to this Section as long as its facilities are
located in the Public Rights-of-Way, and for said purpose, this Section
shall survive this License Ordinance.
7.02 Insurance. Licensees shall procure and maintain, during the term of
their licenses, the following insurance coverage, and the respective policies thereof
shall cover all risks related to the Licensee's use and occupancy of the Public Rights-of-
Way and all other risks associated with their license.
7.02.01 Description of Insurance Coverage and Limits.
Covera�e Limits of Liabilitv
Workers' Compensation: Minimum Statutory Limits
Employer's Liability: Bodily Injury by Accident
$1,000,000 (each accident)
Bodily Injury by Disease
$1,000,000 (policy limit)
Bodily Injury by Disease
$1,000,000 (each employee)
Commercial General Liability: Combined single limits of $1,000,000
Including Broad Form Coverage, per occurrence and $1,000,000
Contractual Liability, Bodily and aggregate
Personal Injury, and Completed
Operations:
Products and Completed Operations: $1,000,000 aggregate
Automobile Liability Insurance for $1,000,000 combined single limit
Automobiles used by the Licensee per occurrence
in the Course of its Performance
under the License Ordinance,
including Employer's Non-Ownership
and Hired Auto Coverage:
FWD/TELECOM.ORD/10/20l99 1 g
Excess Coverage $1,000,000 per occurrence/
combined aggregate in excess of
limits specified for Employer's
Liability, Commercial General
Liability, and Automobile
Liability
Note: Aggregate limits are for a 12-month policy period, unless otherwise
indicated.
7.02.02 Other Insurance Related Requirements.
(a) The City shall be named as an additional insured, by
endorsement, on all applicable insurance policies;
(b) Applicable insurance policies shall each be endorsed with a
waiver of subrogation in favor of the City;
(c) Insurers shall have a rating of B+ or better and a financial size of
Class VI or better, according to the current year's Best's rating. Each insurer
shall be responsible and reputable, must have financial capability consistent with
the risks covered, and shall be subject to approval by the City Council with
regard to conformance with these requirements, which approval shall not be
unreasonably withheld.
(d) Deductible limits on insurance policies and/or self-insured
retention exceeding $50,000 shall require approval by the City Council;
(e) Certificates of insurance shall state that the City shall be notified
a minimum of thirty (30) days prior to the insurers' action, in the event of
cancellation, non-renewal, or reduction in policy limits, regarding any policy
required hereby;
(� Full limits of insurance required in Section 7.02.01 above shall
be available for claims arising out of a Licensee's applicable License Ordinance;
(g) Certificates of Insurance shall be provided by a Licensee to the
City prior to the installation, construction, or operation of any Network
Facilities within Public Rights-of-Way; provided, however, any Licensee
lawfully operating Network Facilities within Public Rights-of-Way at the time
of adoption of such Licensee's applicable License Ordinance shall_provide such
Certificates of Insurance within thirty (30) days following the effective date of
such License Ordinance. Any failure of the City to request such documentation
shall not be construed as a waiver of the insurance requirements specified
herein;
FWD/TELECOM.ORD/10/20/99 19
(h) The City shall be entitled, upon request and without incurring
expense, to review the insurance policies (or certified copies thereo�, including
endorsements thereto, which relate to the insurance requirements specified
herein, and, at its discretion, to require proof of payment for policy premiums;
(i) The City shall not be responsible for paying the cost of insurance
coverage required herein;
(j) Notice of any actual or potential claim and/or litigation that
would affect insurance coverage required herein shall be provided to the City in
a timely manner. In the alternative, a policy may, by endorsement, establish a
policy aggregate to establish compliance with the requirements set forth herein;
(k) Each insurance policy required herein shall be primary insurance
to any other insurance available to the City with respect to any claims arising
hereunder;
(1) A Licensee shall either require its contractors to maintain the
same insurance coverage and limits thereof as specified herein or such coverage
on the Licensee's contractors shall be provided by the Licensee; and
(m) A Licensee may elect to self-insure to provide the insurance
coverage required hereunder, subject to the restrictions set forth in this
subsection, provided Yhat the Licensee submits to the City copies of its
certificates of self-insurance from the Texas Department of Insurance and of its
most recent audited financial statements, showing self-insurance reserves or
other assets sufficient to pay judgments equal to the limits set forth above. A
Licensee shall also provide to the City documentation evidencing its process for
reviewing and paying claims. The City shall be protected by a Licensee's self-
insurance to the same extent as an additional insured on a policy issued by an
insurance company. If, during the term of a License granted hereunder, a
Licensee's self-insurance program ceases, or a Licensee's assets or reserves are
no longer sufficient to comply with the above coverage requirements, the
Licensee shall immediately notify the City of such lapse of coverage, and the
Licensee shall obtain commercial insurance in accordance with the above
requirements within thirty (30) days following such notice.
7.03. No Right of Recovery. Insurers shall have no right of recovery against
the City, it being the intention hereby that the insurance policies required herein shall
protect Licensees and the City, and shall be primary coverage for all losses covered by
such policies. Such policies shall provide that the issuing company waives all right of
recovery by way of subrogation or assignment against the City in connection with any
damage covered thereby. Companies issuing such policies shall have no recourse
FWD/TELECOM.ORD/10/20/99 LO
against the City for payment of any premiums or assessments, same being at the sole
risk of the Licensees.
7.04 Lapse of Coverage an Event of Default. A Licensee shall continuously
and without interruption maintain in full force and effect the required insurance
coverage and limits set forth in this Section. Failure to maintain such insurance shall
constitute an event of default and the City, at its option, may terminate any license
granted pursuant hereto, in accordance with the provisions of Section 8 below.
Section 8. Default and Termination.
8.01 Events of Default. The occurrence of any of the following shall
constitute an event of default by a Licensee.
8.01.01 Failure of a Licensee to comply with any material term,
condition, or provision of this Ordinance or the License Ordinance applicable to
such Licensee;
8.01.02 Any intentional false statement or misrepresentation as to
a material fact by an Applicant;
8.01.03 A Licensee's loss of or failure to obtain licenses, permits,
and certifications lawfully required by any statute, ordinance, rule, or regulation
of any regulatory body having jurisdiction over the Licensee's operations and to
pay all fees associated therewith;
8.01.04 An act or omission of a Licensee constituting a knowing
or intentional evasion of payment of any fee payable hereunder.
8.02 Cure Period. If a Licensee continues to violate or fail to comply with a
material term or provision of this Ordinance for a period of thirty (30) days following
notification in writing by the City to cure such specific alleged violation or failure to
comply, then the City may follow the procedures set forth herein to declare that the
Licensee has terminated all rights and privileges consented to pursuant to this
Ordinance and the Licensee's License Ordinance; provided, however, if a Licensee is
alleged to be in violation of any material provision of this Ordinance, other than the
payment of a fee due hereunder, and if the Licensee commences efforts to cure such
alleged violation within thirty (30) days following receipt of written notice thereof and
shall thereafter prosecute such curative efforts with reasonable diligence until such
curative efforts are completed, then such alleged violation shall cease to exist and no
further action shall be taken at that time.
Section 9. Transfer of Authority
FWD/TELECOM.ORD/10/20/99 2,1
. � .. � , .
9.01 Prohibition. Any right, privilege, and license granted pursuant hereto
may not be assigned, in whole or in part, without the prior consent of the City
expressed by resolution or ordinance, and then only under such conditions as may
therein be prescribed, except as otherwise provided in Section 9.04 below. No such
consent by the City shall be unreasonably withheld, conditioned, or delayed. No
assignment in law or otherwise shall be effective until the assignee has filed with the
City an instrument, duly executed, reciting the fact of such assignment, accepting the
terms hereof and of the License Ordinance, and agreeing to comply with all the
provisions thereof. A mortgage or other pledge of assets in a bona fide lending
transaction shall not be considered an assignment of a license for the purposes of this
Ordinance.
9.02 Process. Upon receipt of a request for consent to an assignment, the
City shall diligently investigate the request in a timely manner and place the request on
the City Council agenda at the earliest practicable time. The City Council shall
proceed to act on the request within a reasonable period of time.
9.03 Scope of Review. In reviewing a request for assignment, the City may,
to the extent permitted by law, inquire into the legal, technical, and financial
qualifications of the prospective assignee, and the Licensee shall assist the City in so
inquiring. The City may condition said assignment upon such terms and conditions as
it deems reasonably necessary, provided its approval and any such terms and conditions
so attached shall be related to the legal, technical, and financial qualifications of the
prospective assignee, as well as the Licensee's compliance with the terms hereof.
9.04 Assignments Not Requiring Approval. Notwithstanding any other
provision contained in this Ordinance to the contrary, the prior approval of the City
shall not be required for any transfer of ownership or control of a Provider's business,
except that the Provider shall maintain with the City current point of contact
information. Provided, however, no such assignment shall be effective until the
Licensee shall have given written notice thereof to the City.
9.05 Release. Upon receiving the City's consent to an assignment, or, in the
event of an assignment qualifying under subsection 9.04 above, upon giving notice
under subsection 9.04, a Licensee shall be relieved of all conditions, obligations, and
liabilities arising or which might arise hereunder that are assumed by the assignee.
Section 10. Miscellaneous Provisions.
10.01 Work by Others, Construction by Abutting Owners, and Alterations
to Conform with Public Improvements.
10.01.01 The City reserves the right to lay and permit to be laid,
sewer, gas, water, and other pipe lines or cables and conduits, and to do and permit to
be done, any underground and overhead work, and any attachment, restructuring, or
FWD/TELECOM.ORD/10/20/99 22
changes in aerial facilities that may be deemed necessary or proper by the City in,
across, along, over, or under any Public Right-of-Way occupied by Providers, and to
change any curb or sidewalk or the grade of any street. In permitting such work to be
done, the City shall not be liable to Providers for any damages not directly caused by
the misconduct or gross negligence of the City; provided, however, nothing herein
shall relieve any other Person or entity, including any contractor, subcontractor, or
agent from liability for damage to a Licensee's facilities.
10.01.02 If during a License term the City authorizes abutting
landowners to occupy space over, under, or across the surface of any Public
Right-of-Way, such grant to an abutting landowner shall be subject to the rights
herein granted to a Licensee. In the event that the City shall close or abandon
any Public Right-of-Way, which contains any portion of a Licensee's Network
Facilities, any conveyance of land contained in such closed or abandoned Public
Right-of-Way shall be subject to the rights of a Licensee hereunder and under
the Licensee's License Ordinance.
10.01.03 Providers shall be liable for the acts or omissions of any
Person used by such Providers when such Person is involved directly or
indirectly in the construction and installation of such Providers' Network
Facilities to the same extent as if the acts or omissions of such Person were the
acts or omissions of the Provider.
10.02 Annexation and Disannexation. Within thirty (30) days following the
date of passage of any action effecting the annexation of any property to, or the
disannexation of any property from, the City's corporate boundaries, the City shall
furnish Licensees written notice of the action and an accurate map of the City's
corporate boundaries showing, if available, street names and number details. For the
purpose of compensating the City under this Ordinance, a Licensee shall start including
or excluding Access Lines or subscribers, as applicable, within the affected area in the
Licensee's count of Access Lines or subscribers, as applicable, on the effective date
designated by the Comptroller of Public Accounts of the State of Texas for the
imposition of state local sales and use taxes; but in no case less than thirty (30) days
following the date the Licensee is notified by the City of the annexation or
disannexation.
10.03 Con�dential Records. Upon the notification by a Licensee to the City
of the confidential nature of any information, report, document, or writing, the City
shall maintain the confidentiality of such information, report, document, or writing to
the extent permitted by law. Upon receipt by the City of requests for the Licensee's
confidential information, report, document, or writing, the City shall notify the
Licensee of the request, in writing. Unless otherwise approved in writing by the
applicable Licensee, the City shall request an Attorney General's Opinion before
disclosing any confidential information, report, document, or writing, and will furnish
the Licensee with copies of such r�quests.
FWD/TELECOM.ORD/10/20/99 23
, , 1 ` . Av.�. , � .♦ � � k
10.04 Abandonment of Public Rights-of-Way. If the City conveys, closes,
abandons, or releases its interest in or authority over any Public Right-of-Way
containing Network Facilities installed or operated pursuant to a License Ordinance,
any such conveyance, closure, abandonment, or release shall be subject to the rights of
the Licensee under the License Ordinance.
10.05 Right to Audit. The City reserves the right to inspect a Provider's
business records to the extent necessary to ensure compliance with the Access Line
and/or subscriber reporting requirements of this Ordinance. Any such review shall be
commenced within ninety (90) days following the filing of a certified report of Access
Lines and/or subscribers. If any such inspection discovers an underpayment due to the
City that exceeds five percent (5%) of the total amount paid for any quarterly reporting
period, then the Licensee shall promptly reimburse the City for the actual and
reasonable cost of such audit. Provider shall also pay the City all actual amounts of the
underpayments as determined by the audit, plus interest as hereinabove provided.
10.06 Force Majeure. Other than for the failure to pay amounts due and
payable under this Ordinance, a Licensee shall not be in default or be subject to
sanction under any provision of this Ordinance when its performance is prevented by
Force Majeure. Force Majeure shall mean an event caused by strike or other labor
problem; embargo; epidemic; act of God; fire; flood; adverse weather conditions, or
other major environmental disturbance; act of military authority; or war or civil
disorder, provided that such causes are beyond the reasonable control and without the
willful act, fault, failure, or negligence of the Licensee. Performance is not excused
under this Section following the end of the applicable event of Force Majeure.
10.07 Controlling Law. This Ordinance, and any license issued hereunder,
shall be governed by the laws of the State of Texas and the United States, and venue
for any action hereunder shall be in Harris County, Texas.
10.08 Effective Date of License. Any License granted hereunder shall be
effective upon the adoption of the applicable License Ordinance and the filing of
necessary certificates of insurance as otherwise required herein.
Section 11. Penalty. Any Person who shall use or occupy the Public Rights-of-Way
for the provision of Telecommunications Services without having been issued a License
therefor pursuant to this Ordinance shall be deemed guilty of a misdemeanor and, upon
conviction thereof, shall be fined in an amount not to exceed Two Thousand Dollars
($2,000.00). Each day of violation of this Section shall constitute a separate offense.
Section 12. Severability. In the event any clause phrase, provision, sentence, or
part of this Ordinance or the application of the same to any Person or circumstances shall for
any reason be adjudged invalid or held unconstitutional by a court of competent jurisdiction, it
shall not affect, impair, or invalidate this Ordinance as a whole or any part or provision hereof
FWD/TELECOM.ORD/10/20/99 24
. � � • � . � ..._... �, i V , � • . � � .
r. ` w � • , ' , ♦
other than the part declared to be invalid or unconstitutional; and the City Council of the City
of Friendswood, Texas, declares that it would have passed each and every part of the same
notwithstanding the omission of any such part thus declared to be invalid or unconstitutional,
whether there be one or more parts.
Section 13. Repeal. All ordinances or parts of ordinances inconsistent or in conflict
herewith are, to the extent of such inconsistency or conflict, hereby repealed.
PASSED AND APPROVED on this first reading this 4th day of october ,
1999.
PASSED, APPROVED, and ADOPTED on second and final reading this 18 th day of
October , 1999.
Harold L. Whitaker
Mayor
ATTEST:
�
Deloris McKenzie, C
City Secretary
FWD/TELECOM.ORD/10/20/99 2,S