HomeMy WebLinkAboutORD 2005-061 ORDINANCE NO. 2005-61
r.;�Y..a
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF GRAPEVINE, TEXAS, GRANTING A MUNICIPAL
CONSENT AGREEMENT WITH ABOVENET
COMMUNICATIONS, INCORPORATED TO PROVIDE
TELECOMMUNICATIONS SERVICES WITHIN THE CITY
OF GRAPEVINE, PROVIDING A SEVERABILITY CLAUSE
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, setting fees for the use of
City public rights of way, and provides for the Municipal Consent procedures and
construction obligations; and
WHEREAS, AboveNet Communications, 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.
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.
Sectior� 5. If any section, article, paragraph, sentence clause, phrase or word
in this ordinar�ce, ar application thereto any person or circumstance is held invalid or
unconstitutional by a Court of competent jurisdiction, such holding shall not affect the
validity of the remaining portions of this ordinance; and the City Council hereby declares
it would have passed such remaining portions of the ordinance despite such invalidity,
Which remaining portions shall remain in full force and effect.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS THE 16th DAY OF August, 2005.
APPROVED:
V"lilliam D. Tate
Mayor
ATTEST:
Linda Huff
City 5ecretary
APPROVED AS TO FORM:
. ;
x�x�� �.,.
� .
.., r -''. � - ,. `
.1ohn F. Boyle, Jr.,�
City Attorney
t:,_,W
ORD. NO. 2005-6� 2
EXHIBIT "A" TO ORDINANCE NO. 2005-61
PAGE 1 OF 9
City of Grapevine, Texas
Municipal Consent to Use the
Public Rights-of-Way
TELECOMMLTNICATIONS SERVICE PROVIDER: AboveNet Communications, Inc.
CONTACT NAME: Tommy Capps
� TELEPHONE NUMBER: 972-329-6400
� � ADDRESS: 13647 Omega Road
CITY/STATE/ZIP CODE: Farmers Branch, TX 75244-4515
EFFECTIVE DATE: 8/16/2005
EXPIRATION DATE: 8/15/2008
THIS CONSENT IS AUTHORIZED BY ORDINANCE NO.: 2005 - 61
ADOPTED ON: 8/16/2005
�
EXHIBIT "A" TO ORDINANCE NO. 2005-61
PAGE20F9
.�_.. Municipal Consent to Use the
,�
Public Rights-of-Way
1. PURPOSE AND INTENT.
THIS MUNICIPAL CONSENT TO USE THE PUBLIC RIGHTS-OF-WAY (the
"Consent")is made and entered into as of 8/16/2005,(the "Effective Date")by and between the City
of Grapevine, Texas, a city duly organized under the applicable laws of the State of Texas,
(hereinafter referred to as "City"), and AboveNet Communications, Inc., [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 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 (Telecommunication 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 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. A UTHORITY NOT EXCL USIVE.
This Consent and the grant 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 -
EXHIBIT "A" TO ORDINANCE NO. 2005-61
PAGE30F9
��
4. FEES AND COMPENSATION.
From and after the Effective Date of this Consent and throughout the full term of this
Consent, the Provider shall promptly pay to the City all fees and compensation pursuant to the
Telecommunication Ordinance.
5. CONSTRUCTION OF THE TELECOMMUNICATION 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 thereo fl 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 lawful
occupant of any property involved.
��
5.10 Books and Records -The Provider shall keep books and records as required by the
- 3 -
EXHIBIT "A" TO ORDINANCE NO. 2005-61
PAGE40F9
��
Telecommunications Ordinance and in accordance with generally accepted accounting principles.
6. TREE TRIMMING.
With reasonable prior written notice,the Provider may trim trees or other vegetation owned
by the City or encroaching upon the Public Rights-of-Way to prevent their branches or leaves from
touching or otherwise interfering with its wires. All trimming or pruning shall be at the sole cost of
the Provider.
7. REPORTS.
7.1 The Provider shall make available to the City such information or reports,as required
by the Telecommunications Ordinance.
7.2 The Provider shall allow the City to make inspections of any of the Provider's
facilities and equipment located within the Public Rights-of-Way with sufficient notice as to not
disrupt the operations of the Provider.
8. INDEMNITYAND 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,
� - 4 -
EXHIBIT "A" TO ORDINANCE NO. 2005-61
PAGE 5 OF 9
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 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 otherwise, to any
other Person or entity;
(2) To the extent permitted by law,any payments made to,or on behalf of
the City under the provisions of this section are subject to the rights granted
to Providers under Sections 54.204-54.206 of the Texas Utilities Code; and
(3) Subject to the continued applicability of the provisions of Sections
54.204-54.206 of the Texas Utilities Code, as set forth in (2) above, the
provisions of the indemnity shall survive the expiration of this Municipal
Consent.
� 9. PROVIDER DEFAULT AND REMEDIES.
"°�` 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.
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 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 or 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,
`� - 5 -
EXHIBIT "A" TO ORDINANCE NO. 2005-61
PAGE60F9
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.
l2. 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.
� l3. 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:
Mr. Bruno Rumbelow, Acting City Manager,
City of Grapevine
P.O. Box 95104
�.' - 6 -
EXHIBIT "A" TO ORDINANCE NO. 2005-61
PAGE7OF9
�{:,�
Grapevine, Texas 76099
(b) If to Provider:
Mr. Rob Sokota
Senior Vice President
360 Hamilton Avenue
�cn Floor
White Plains, NY 10601
14. 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 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.
I5. CONSTRUCTIONAND JURISDICTIDN.
°� ` In the event of any conflict between this Consent and the Telecommunications Ordinance,the
Ordinance terms shall prevail and control. Provider's obligations 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 in the State of Texas and the City. Any suit to enforce this Consent shall be
brought in Tarrant County, Texas.
16. 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,
� _ 7 _
EXHIBIT "A" TO ORDINANCE NO. 2005-61
PAGE80F9
this Municipal Consent.
�a� IN WITNESS THEREOF,the parties have signed below, effective as of the Effective Date,
by their duly authorized representatives.
ACCEPTED:
City of Grapevine, Texas AboveNet Communications, Inc.
"City" "Provider"
By: g� By:
William D. Tate Rob Sokota
Its: Mayor Its: Senior Vice President
[Note to City Attorney-Add appropriate signature block for City]
'" " 109896\0OOI�MTOGRAOI.CAW
��
_ g _ A
EXHIBIT "A" TO ORDINANCE NO. 2005-61
PAGE 9 TO 9
by their duly authorized representatives.
ACCEPTED:
�
City of Grapevine, Texas AboveNet Communications, Inc.
"City" "Provider"
By: By: G . � � -...
Bruno Rumbelow - �' ,,L,e,'t�;k��
Its: Acting City Manager Its: Senior Vice President
[Note to City Attorney- Add appropriate signature block for City]
109 896\0001�IVIT OGRA01.CAW
�..,�
� - g - B
EXHIBIT "A" TO EXHIBIT "A" OF
ORDINANCE NO. 2005-61
PAGE 1 TO 3
��,-�
EXHIBIT "A"
PUBLIC RIGHTS-OF-WAY THAT MAY BE USED BY THE PROVIDER
�
Check applicable box:
A
An ublic ri hts-of-wa in the Cit �L�"�
YP g Y Y
City Initial Provider Initial
✓ Only areas as described in the attached
Map �
ty Initial Provider Initial
�
109896\0001�1VITOGRAO 1.CAW
".� - 9 -
EXHIBIT "A" TO EXHIBIT "A" OF
�x � ORDINANCE NO. 2005-61
PAGE 2 TO 3
� � Ft�Ck a
�� � �� � � ���� �� �,� �
—� a. �' 1 .
-� �� :
� � _� � i
L.- ,e
AboveNet°
- T �; '�•�:� u :'� � � I
Littl e
�J� ��4 ���711'G� �t, Caesar• ' !
Sf I
r�Q
c !
i _. : -= - . __--- __
� � '
�dey .,� ', -- t` - ort v�re
ry -�-:�-�__��.� _ -
� �`,-�.��'`;�•t---- ��
;
•,,,,, � ��
�
~��.``� �
' Gra evine r o w '
P I 1 ��;. 4�
Distan�e 0 201 mi �
� . s�. ..•� �'\��\\�t
, ti
= ,, �,
,
_ _.. `,�ti, ,
�.
_ ---- ,�� *`��R � .
�$-��aci--- ,,.�' ,
n
_ -- - - __ _._. 1a� 7� ��` -
�� tir .
" - - �1709--.�-��u�.� •.�\li ` ; ; =--
i Y,,; t;;
ti��
; '
LEGE��JD; tS��
7
Orange=6rapevine rjojw �A^ .;,�•ti
o GREE�d=Texas DOT r jo/w t:`�i
� RED=Existing backbone(both TX DOT+ -___ --' � '�
� Grapevine rjo/w}; '"*,:��,�;�
i��t c � ,,:
` ��trlarket Loop ---t-7 `� , j `�
o m � ,
' ' � - �i �f
i � ;, �
! �;
� ;
ii ' cr� I i
' �.»--�'"
� r , , Grapevir�e rJofw(utility, ,� ; .'
'i � � ! ° easerc�ent}Diskance= � -��� M~ �
� � �0,653 mi
I f I � ; � . . . �. �< < �
i
� L � i � � � �
iange-blva; -- �— -------
------- i ; �
�
; . _ , �
; , �, �
; � , �f �
� f � Gra�e�
� + �:
; i II_,�..� � F�o�
,- --- � � -- -- _�" V,+al
� � — -- s. '"-
�
i r
, � 3sf'�'
� � y� .s�'c�`, , '
�
. __ .._., : . .��.,�.�� � ..ti ��,�,�.��.. ,,
EXHIBIT "A" TO EXHIBIT "A" OF
ORDINANCE NO. 2005-61
PAGE3T03
�pac� �9lanaged Hosting
30� Ir�dustrial Bivd
Grapevine, TX
b��.� � �'�
m � �
�
Bus �-a�..� �. ;�:, . �. w:���s.:,,.
ort west Hwy _ _ _ _ ._.__ t,, __ t,' _ .. � t �:
---_
EnooreO Pearl Chinese �G3
Restaurants REStavrant �y
Existing AboveNet back�,one
wJin�rape�+ine+TX DdT r f o/w
�I r;},.
_ `>� /54�'
��5 j
, , __._�. �� �I � �'�.
r �. St___..___�..- m� Heam+eT�
_-r---
__
-,-_------ �a'��. �i t_.
-___ _ ._ __ _.
--- -- --
- -- __-- --- _--- ,
i � Ii �,
ti,; __` ; ; 'G'heTsea �t -----
l _ Q � i � �..I i _ __'_
, +,',. Q
. . . , � � ,
�,.�,.ti.,ti',, ,. ' ,_ i , i
` \\``�`,'• _-- � � � , � I �
' . ---'o �,i ' 4
r: �t��,; ----.� � � 0 fl
a� C s i �
_� +�� '' .1`l ..Q .-�+ S� N � . �.
,, `
—� � � [i1 nr ,� �
, �, ai � � m
�±' ,�1� :', ' ' C7-- --d]- �--- - a-_=. ___.
. __. - - - -
i��4 --- -- -- ----tilV -C o l l e g e=_ t:_-_ - --- ------
�:� . �<, __ _ � --_ — _ --- �
; - �� ` , ;Berkley=Dr--_____ ---
` �;.� `- `-�
.,;•,, � I
,, ,
�� `i
" ` TXGOT rjoJw � �dXfOGd-Ln -- - ---
Distance=�0.887 rni � i !
'�, '. `,'_ _ . +� ;
'�. .:.. J �Eaton-Ln --
ti c
}� ---- �___--
�� •.O
T� �
------ ,,,'' -�- i - -___
__" --- _.__- --
x ^ _ __---- -
{} ,,• � `- l ^ �UC�gti�g ��---
, ± ° ���
Regional_.Rd== ` � ; , , ,„
_
,.. �. .t.�, ._,�
,
� 11�#.,'' .;�_�
_ _
_ .
, � ---- --
,', t . _ --- __-- ---
i s 5 � r ----_T 26 i---- _
Grape�vine ' ��� �=Waad�-��-
,', ��,' : _ �.
;.;_, � _ __-- 1 i� ,:
_ '''� ,,;, !.
� �oad relocate�l�1ue to ���'��� � �'i�?
l+del-Mart Facilities t�,',\ �; ,
. � �l,`�`,`��''
' ,t �\� �.
' 4 �
;i'ii ,I�,F�� .ti __
�1.�i., i�5 1��\ ' .
. � ,. . . ,��5��,,.. . . �fi
�