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Home My WebLink AboutORD 1999-068 ORDINANCE NO. 99-6s ' AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS, GRANTING A MUNICIPAL CONSENT AGREEMENT WITH GTE SOUTHWEST, INC. TO PROVIDE TELECOMMUNICATIONS SERVICES WITHIN THE CITY OF GRAPEVINE; PROVIDING FOR ACCEPTANCE; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Grapevine ("City") seeks to facilitate competition in the provision of Telecommunications Services on a competitively neutral basis and to encourage the availability of such services to all residences and business within the City; and WHEREAS, the City, pursuant to federal law and state statutes, may consent to one or more non-exclusive agreements to construct and maintain a Telecommunications Network in the public rights-of-way within the municipal boundaries of the City; and WHEREAS, the City adopted Ordinance No. 99-30 ("Telecommunications ��=-* Ordinance") which establishes the rules and regulations governing the use of City public rights-of-way by providers of telecommunications services, sets fees for the use of City public rights-of-way, and provides for the Municipal Consent procedures and construction obligations; and WHEREAS, GTE Southwest, Inc ("Provider") is now and has been engaged in the telecommunications business in the State of Texas; and WHEREAS, Provider has applied for a Municipal Consent Agreement with the City to maintain, operate and construct its physical plant in the public rights-of-way within the City and said application has been reviewed and approved by staff. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That all matters stated in the preamble are found to be true and correct and are included herein as if copied in their entirety. Section 2. That the City Council of the City of Grapevine hereby approves the {��;.� Municipal Consent Agreement with Provider for a period of three (3) years. A�#�1 Section 3. That the Municipal Consent to Use the Public Rights-of-Way Agreement is attached as Exhibit "A". Section 4. That the Mayor is authorized to execute the Municipal Consent Agreement on behalf of the City. Section 5. That the Provider shall have thirty (30 days from and after the passage and approval of this ordinance to file its written acceptance thereof with the City Secretary, and after such acceptance is filed, this ordinance shall take effect and be in force from and after July 1, 1999. Section 6. That all other ordinances and agreements and parts of ordinances and agreements in conflict with the provision of this ordinance are hereby repealed. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on first reading on this the 23rd day of March, 1999. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on second reading on this the 4th day of May, 1999. APPROVED: � William D. Tate ATTEST: Mayor � Lind Huff City Secretary APPROVED AS TO FORM: Stan Lowry City Attorney � ORD. NO. 99-68 2 ACCEPTED: � GTE SO T EST I PORATED NAME: ��"ry E. Atx�ell TITLE: President Texas/NeYr Mexico Region DATE OF ACCEPTANCE: 5� � � APPfit?: D A M . , S�� ' � r:. �s �� ORD. NO. 99-68 3 �xHiBifi � t0 � ` ' `� Page ��,� Of City of Grapevine, Texas Municipal Consent to Use the Public Rights-of-Way (Rev. 11/12/98) (2/19/99) TELECOMI�ZUNICATIONS SERVICE PROVIDER: GTE Southwest Incorporated CONTACT NAME: Sam Luxton, Area Manager-Customer Operations TELEPHONE NUMBER: 972-413-7418 �F� 972-255-6907 ADDRESS: 3500 N. Beltline MC TXG3IIRN CITY/STATE/ZIP CODE: Irving, TX 75062 EFFECTNE DATF.: June 1, 1999 EXPIRATION DATE: May 31, 2002 THIS CONSENT IS AUTHORIZED BY ORDINANCE NO.: 99-68 ADOPTED ON: MAY 4, 1999 : EXHIBIT� TO Page �... of � Municipal Consent to Use the Public Rights-of-Way 1. PURPOSE AND INTENT. THIS NIUNICIPAL CONS�NT TO US� THE PUBLIC RIGHTS-OF-WAY (the "Consent") is made and entered into as of June 1, 1999, (the "Effective Date") by and between the City of Grapevine, a city duly orgat�ized under the applicable laws of the State of Texas, (hereinafter referred to as "City"), and GTE South�ti�est Incorporated [Telecommunication Company] ("Provider"); WHEREAS, the City, pursuant to federal law, state statutes, and local ordinances, may consent to one or more non-exclusive agreements to construct and maintain a Telecommunication Network in the Public Ri�hts-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 (Telecommunication Ordinance); ��::.� WHEREAS, the Provider has acknowleci�ed the terms and conditions of the ��:� Telecommunications Ordinance and understands that it is bound by them; NOW, THEREFORE, Provider a�rees to abicle by the terms and conditions of this Telecommunications Ordinance, as follows: 2. SCOPE OF CITY CONSEN'l. The City hereby grants to the Provider, for a period of three (3) years from and after the Effective Date of this Consent (the "Term"), the non-exclusive right to construct, use, operate,own and maintain a Telecommunication Network in, on, under and over the Public Rights-of-Way, as described in Exhibit "A," subject to applicable law, under the terms and conditions specifically set forth in the Telecommunications Ordinance. 3. AUTHORITY NOT EXCLUSIVE. This Consent and the �rant conferred in Section 2 above are not exclusive, pursuant to the Telecommunication Ordinance. The Provider shall respect the rights and property of the City and �,,, other authorized users of the Public Rights-of-Way. � _ 2 _ EXNIBIT� TO �h'�-�'� Page `�.�.... of � 4. FEES AND CO�YIPENSATION. From and after the Effective Date of this Consent and throu�hout the full term of this " Consent, the Provider shall promptly pay to the City all fees and compensation pursuant to the Telecommunication Ordinance. 5. CONSTRUCTIO�V OF "lHE TELECONINIUNICA'IION NET4VORK. 5.1 Provider shall comply with the Telecommunication Network construction requirements in accordance with the appropriate sections of the Telecommunication Ordinance. 5.2 Pernzits Required - Provider shall not construct, reconstruct, or relocate the Telecommunication Net�vork (or parts thereot) 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 Revie�v - 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- `Vay or on any City property �vithout first securin� the �vritten permission of the city and/or lawful occupant of any property involved. - 3 - : kX�MI�lIT_,��__ TO � � Page .�..,E,.,.,. of 5.10 Books and Records - The Provider shall keep books and records as required by the Telecommunications Ordinance and in accordance with generally accepted accounting principles. ��"" 6. TREE TRIM�YIING. With reasonable prior written notice, the Provider may tricn trees or other vegetation owned by the City or encroachin; upon the Public Rights-of-�Vay to prevent their branches or leaves from touching or otherwise interferin� with its wires. All trimming or prunin� shall be at the sole cost of the Provider. 7. R�PORTS. 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 within the Public Ri�hts-of-Way with sufficient notice as to not disrupt the operations of the Provider. 8. INDEMNITYAND INSURANC�. "�`"� (a) The Provider shall comply �vith applicable sections of the Telecommunication Ordinance governing insurance. � (b) THE PROVIDER AGRE�S TO PROMPTLY DEI'LND, INDEMNIFY AND HOLD THE CITY HARIVILESS FROM AND AGAI�i 1ST ALL DAMAGES, COSTS,LOSSES OR EXPENSES (i)FOR THE REPAIR, REPLACEM�NT, OR RESTORATION OF CITY'S PROPERTY, EQUIPMENT, MATERIALS, STRUCTURES AND FACILITIES WHICH ARE DAMAGED, DESTROYED OR FOUND TO BE DEFECTIVE SOLELY AS A I2ESULT OF THE PROVIDER'S ACTS OR OMISSIONS, (ii) rROM AND AGAINST ANY AND ALL CLAIMS, D�IVIANDS, SUITS, CAUS�S OF ACTION,AND JUDGMENTS FOR(a) DAMAGE TO OR LOSS OF THE PROPERTY OI' ANY P�RSON (INCLUDING, BUT NOT LIMITED TO THE PROVIDER, ITS AGENTS, OrFICERS, EMPLOYEES AND SUBCONTRACTORS, CITY'S AG�NTS, OF'I'IC�RS AND EMPLOYEES, AND THIRD PARTIES); AND/OR(b) DEATH, BODILY INJURY, ILLNESS,DISEASE, LOSS OF SERVIC�S, OR LOSS OF INCONIE OR �VAGES TO ANY PERSON (INCLUDING, BUT NOT LIMITED TO THE AGENTS, OFFICERS AND �MPLOYEES OF THE PROVIDER, PROVIDER'S SUBCONTRACTORS AND CITY,AND THIRD PARTIES),ARISIl�`G OUT OF,INCIDENT TO, CONCERNL�IG OR 12�SULTING I'ROM TH�N�GLIGENT OR�VILLFUL ACT OR 01�1ISSIONS OF THE PROVIDER,ITS AGENTS,E1�IPLOYEES,AND/OR SUBCONTRACTORS, IN THE PERFORNIANC� OF ACTIVITI�S PURSUANT TO THIS NIUNICIPAL � CONS�NT. - 4 - : Exs��r.�.,�.. ro -�s Page ��...,� 0� (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 forth above is: (1) Solely for the benefit of the parties to this Municipal Consent and is not intended to create or grant any rights, contractual or other�vise, 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 this Municipal Consent. 9. PROVIDER DEFAULT AND RE1I�IEDIES. If Provider fails to comply with this Consent or the Telecommunication Ordinance, Provider will be subject to termination and remedies as provided for in the Telecommunications Ordinance and herein. I0. COMPLIANCE WITH LA WS; 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 held by any court or by any Federal, state, or county agency of competent jurisdiction to be invalid as conflictin� �vith 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 la�v, rule or re�ulation, said provision shall be considered as a separate, distinct and independent part of this oi•such other Consent or ordinances, permits or licenses, and such holding shall not affect the validity and enforceability of all other provisions hereof or thereof. In the event that such la�v, rule or regulation is subsequently repealed, rescinded, amended or other�vise 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 - 5 - : Ex�isir�. ro - Page .�../� of 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 ri�ht 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. ll. TAXES. 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 here�lfter lawfully imposed by the City as are generally applicable in the City or State. I2. SALE OR TRANSFER. With respect to the sale or transfer of the Consent or Telecammunication Network, the � Provider shall comply with appropriate sections of the Telecommunications Ordinance. � I3. 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 writin� and shall be deemed served: (a) When delivec-ed by hand or by Federa] Express or similar service to that party's address set forth below during normal business hours; oi- (b) When mailed to any other person designated by that party in �vriting herein to receive such notice, via certified mail, return receipt requested. :� - 6 - EXN18tT.�, TO `�' Page � of _.g..,r._ 13.2 Notice shall be given to the followin;: �� (a) If to City: � Mr. Ro;er Nelson, City Mana�er, City of Grapevine P. O. Box 95104 Grapevine, TX 76051 817-481-0300 b) If to Provider: GTE Southwest Incorporated Associate General Counsel 500 Carpenter Freeway MC TXD 1986A Irving, TX 75035 972-717-5882 972-717-7707 - Fax l4. FORCE MAJEURE. ,� „ Any delay, preemption, or other failure to perform caused by 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 �overnment 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 durin� which such factor continues. I5. CONSTRUCTIONAND JURISDIC'1I0��'. In the event of any conflict between this Consent and the Telecommunications Ordinance, the Ordinance terms shall prevail and control. Provicter's obli�ations 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 throu�h 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 in the State of Texas and the City. Any suit to enforce this Consent shall be brought in Tarrant County, Texas. � � - 7 - EX�iIBI?� TO � ' � g Page .�..�..... of �,w, l6. ACKNOWLEDGMENT THAT TERMS ARE UNDERSTOOD. �..:,:,.. The Provider acknowledges that it has read and fully understood the terms of both the Consent and the 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 Grapevine GTE Southwest Incorporated "City" "Provider" ,�,�, By. � - , ,' `. � `�.�.� Roger Nelson R ional Presi ent-Texas/New Mexico � Its: City Manager Its: GTE Southwest Incorporated ��av�a �.: � [Note to City Attorney - Add appropriate signature block for City] k�;r ��°�� 109800\0001 uVITOB ED06.CAW � � - Q _ O �71� � EXN181T..,� TO � � - � Page _.__L_ Of ..-.1.._. �..� EXHIBIT "A" �.� PUBLIC RIGHTS-OF-WAY THAT MAY BE U5ED BY THE PROVIDER Check applicable box: ,f t� '� �� _� . �,, XX Any public rights-of-way in the City City Initial 4 Provider Initial ❑ Only areas as described in the attached Map City Initial Provider Initial �� 109800\0OO1�IvITOBED06.CAW � - 9 -