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HomeMy WebLinkAboutOrdinances (O-99-1170)-08/17/1999 ORDINANCE 0-99-1170 AN ORDINANCE TO ESTABLISH RULES AND REGULATIONS GOVERNING THE USE OF CITY PUBLIC RIGHTS-OF-WAY BY NON-CERTIFICATED TELECOMMUNICATIONS PROVIDERS OF TELECOMMUNICATIONS SERVICES, ESTABLISHING REASONABLE COMPENSATION FOR THE USE OF CITY PUBLIC RIGHTS-OF-WAY FOR THOSE PROVIDERS AND PROVIDING FOR MUNICIPAL CONSENT PROCEDURES. WHEREAS, the City of Colleyville Texas (the "City") seeks to adopt on a competitively neutral and nondiscriminatory basis rules and regulations for non-certificated telecommunications providers for their use of the Public Rights-Of-Way; and WHEREAS, in accordance with applicable federal and state laws, the City seeks to exercise its historical rights to control and manage its Public Rights-of-Way and to receive reasonable compensation for their use on a competitively neutral and nondiscriminatory basis; and, WHEREAS, because the City deems that the public streets, alleys, easements, and other Public Rights-of-Way within the boundaries of the City are valuable public properties, the use of which is deemed by the City to be a valuable property right, therefore, the City finds that the users thereof should pay the City compensation for the use of the City's Public Rights-of-Way. NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS AS FOLLOWS: SECTION 1 - FINDINGS AND PURPOSE The purpose of this Ordinance is to: (A) Establish an application and regulatory process for Non-Certificated Telecommunications Provider's use and occupancy of the Public Rights-of-Way; (8) Compensate the City for the private, commercial use and occupancy of the Public Rights-of-Way by Non-Certificated Telecommunications Providers in a non-discriminatory and competitively neutral manner; (C) Assist the City in its efforts to protect the public health, safety and welfare. Ordinance 0-99-1170 Page 2 of 18 This Ordinance may be referred to as the "Non-Certificated Telecommunications Provider Ordinance." SECTION 2 - GRANTING CLAUSE (A) Subject to the restrictions set forth herein, the City may consent to the non- exclusive right and privilege to use the Public Rights-of-Way in the City by a Non-Certificated Telecommunications Provider for the operation of a telecommunications system, consisting of Facilities. The terms of this Ordinance shall apply throughout the City and to all operations of the Provider within the City Public Rights-of-Way, and in the Public Rights-of- Way in any newly annexed areas in accordance with Section 22 herein. SECTION 3 - AUTHORITY; SCOPE (A) This Ordinance applies to all telecommunications providers, except Certificated Telecommunications Providers, that place facilities in, on or over Public Rights-of-Way, excluding services provided solely by means of a wireless transmission. No Municipal Consent granted under this Ordinance authorizes the provision of any services not covered by the Municipal Consent, including, but not limited to, cable service and open video systems as defined in Title VI of the Communications Act of 1934 [Title 47, Chapter 5, Subchapter V-A of the United States Code (47 U.S.C. I 521, et seq.)] and any other content service are expressly excluded. (B) The right of a Person to apply for or to use City utility infrastructure shall be governed by the Construction Public Rights-Of-Way Ordinance and other provisions of the City Code. The granting of a Municipal Consent under this Ordinance does not grant attachment rights or authorize the use of City utility infrastructure. SECTION 4 - DEFINITIONS In this Chapter: (1 ) Access Line means the same as in the Local Government Code, '283.002(1), as adopted in 1999. Ordinance 0-99-1170 Page 3 of 18 (2) (3) (4) Access Line Fee means the amount as determined by the Texas Public Utility Commission in accordance with the Local Government Code '283.055{a)(1 ). Affiliate means a Person who controls, is controlled by, or is under common control with a Provider. Affiliate does not include a Person who serves end use customers by means of a wireless transmission. There is a rebuttable presumption of control if a Provider owns 25% or more of the Affiliate's stock or assets. Certificated Telecommunications Provider means the same as in the Texas Local Government Code, '283.002(a) [any entity that has been granted a certificate by the Texas Public Utility Commission under Chapter 54 of Tex. Utility Code to provide local exchange telephone service). (5) City means The City of Colleyville, Texas. As used throughout, the term City also includes the designated agent of the City. (6) City Manager means the City Manager of the City or the City Manager's designee. (7) Direction of the City means all ordinances, laws, rules, resolutions, and regulations of the City that are not inconsistent with this Ordinance and that are now in force or may hereafter be passed and adopted. (8) Facilities means any and all of the Provider's wires, cables, fibers, duct spaces, manholes, poles, conduits, underground and overhead passageways and other equipment, structures, plant and appurtenances and physical devices in, on or under the Public Rights-Ot-Way. (9) Municipal Consent means the individual grant to use the Public Rights-of- Way issued by the City and accepted by the individual Providers under this Chapter governing the Provider's use of the Public Rights-of-Way, and which provides for the payment of compensation. (10) Non-Certificated Telecommunications Provider means a Person, excluding any Certificated Telecommunications Provider, that delivers Telecommunications Service within the City to Person(s) by way of Facilities Ordinance 0-99-1170 Page 4 of 18 that are placed in, on or over the Public Rights-of-Way. To the extent allowed by law, this also includes a Person that does not deliver Telecommunications Service within the City, but who places, constructs or maintains Facilities within the Public Rights-of-Way for the delivering of telecommunications service outside the City, except a Certificated Telecommunications Provider. (11) Person means a natural Person (an individual), corporation, company, association. partnership, firm, limited liability company, joint venture, joint stock company or association, and other such entity. (12) Public Rights-of-Way means the same as in the Texas Local Government Code, ' 283.002(6) [the area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the municipality has an interest. The term does not include the airwaves above a Public Right-of-Way with regard to wireless telecommunications]. (13) Public Rights-of-Way Use Fee means the fee paid quarterly as determined in accordance with Section 11. (14) Telecommunications Service means the providing or offering to provide transmissions between or among points identified by the user, of information of the user' s choosing, including voice, video or data, without change in content of the information as sent and received, if the transmissions are accomplished through Facilities place in, on or over the Public Rights'-Of- Way, expressly excluding cable services or open video systems as defined in Title VI of the Communications Act of 1934, as amended, and ''wireless services" providers, as defined by law, and any service that may only be offered by Certificated Telecommunications Providers. SECTION 5 - MUNICIPAL CONSENT REQUIRED (A) Any Person, except a Certificated Telecommunications Provider, prior to placing, reconstructing, or altering Facilities in, on or over the Public Rights- of-Way, shall obtain a Municipal Consent from the City. (B) The use of Public Rights-of-Way for the delivery of any service not covered by this Chapter is subject to all other applicable City requirements. Ordinance 0-99-1170 Page 5 of 18 (C) Any Non-Certificated Telecommunications Provider with a current, unexpired consent, franchise, agreement or other authorization from the City (A Grant) to use the Public Rights-of-Way that is in effect at the time this Telecommunications Ordinance takes effect shall continue to operate under and comply with that Grant until the Grant expires or until it is terminated by mutual agreement of the City and the Non-Certificated Telecommunications Provider and a Municipal Consent under this Ordinance is granted and in effect. SECTION 6 - APPLICATION FOR MUNICIPAL CONSENT (A) A Person must submit an application to the City Manager to initiate the process to obtain a Municipal Consent. (8) The application must be on a form prescribed by the City Manager, and it must include the following: (1) The identity of the applicant, including all Affiliates of the applicant that may have physical control of the Facilities, to the extent known at the time of the application, (2) A general description of the services to be provided initially, (3) A description of the effect on the rights-of-way, of any post- application construction to the extent known, but not including routine maintenance and construction for additions to existing Facilities including: (a) The location and route required for applicant's proposed Facilities. (b) The location of all overhead and underground public utility, telecommunication, cable, water, sewer, drainage and other Facilities in the rights-of-way along the proposed route. Ordinance 0-99-1170 Page 6 of 18 (c) The specific trees, structures, improvements, Facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate. (C) Each applicant that shall submit a non-refundable application fee of $850.00 with the application, with a credit in the amount of $850.00 on its first quarterly payment due under Section 11. (D) The City Manager shall review an application submitted under this Chapter and shall recommend to the City Council that it grant or deny the application. The City Manager shall make recommendation to the City Council as soon as practicable, but no later than the next Council meeting forty (40) days after a completed application has been filed. Upon mutual written agreement between the City and the Non-Certificated Telecommunications Provider, action on an application may be postponed for one or more periods. (E) Except for delay caused by the applicant, the City Council must take an initial action on the City Manager's recommendation within thirty (30) days after receipt by the Council of the City Manager's recommendation. No City Council action is required to confirm a denial recommendation, except acknowledgment of receipt of the recommendation. SECTION 7 - MUNICIPAL CONSENT ORDINANCE (A) If the City Manager finds that the application meets the requirements of this Ordinance, the City Manager shall request the City Attorney or Designee to prepare a Municipal Consent Ordinance for the City Council's consideration at the same time the application is before council. (8) A Municipal Consent Ordinance submitted to the City Council must include the following provisions: (1) a term of not more than five (5) years for the Municipal Consent; (2) a requirement that the Non-Certificated Telecommunications Provider substantially comply with this Ordinance; Ordinance 0-99-1170 Page 7 of 18 (3) a requirement that the Non-Certificated Telecommunications Provider's Municipal Consent is subject to termination by the City Council, after notice and hearing, for the Non-Certificated Telecommunications Provider's failure to comply with this Ordinance or on a showing that the Non-Certificated Telecommunications Provider has breached the terms of the Municipal Consent; (4) a provision that incorporates the requirements of Section 14 [Transfer] of this Ordinance; (5) a provision that incorporates the requirements of the Construction in the Public Rights-Of-Way Ordinance. (C) Review and approval by the City does not constitute a guarantee of sufficiency of the design of the Facilities. The applicant retains full responsibility for the adequacy of the design of the Facilities. SECTION 8 - PETITION FOR RECONSIDERATION (A) A Person whose application for a Municipal Consent is denied or whose Municipal Consent is terminated may petition the City Council for reconsideration before seeking judicial remedies. A petition for reconsideration is considered denied if the City Council does not act within forty (40) days after the petition is filed with the City Secretary. SECTION 9 - ADMINISTRATION AND ENFORCEMENT (A) The City Manager shall administer this Ordinance and enforce compliance with a Municipal Consent conveyed under this Ordinance. (B) A Non-Certificated Telecommunications Provider shall report information related to the use of the Public Rights-of-Way that the City Manager reasonably requires of all similarly situated Non-Certificated Telecommunications Providers in the form and manner prescribed by the City Manager. Ordinance 0-99-1170 Page 8 of 18 (C) The City Manager shall report to the City Council upon the determination that a Non-Certificated Telecommunications Provider has failed to comply with this Ordinance. SECTION 10 - APPLICABILITY OF CONSTRUCTION IN THE PUBLIC RIGHTS- OF-WAY ORDINANCE (A) All providers with facilities in the rights-of-way shall also comply with the Construction in the Public Rights-Of-Way Ordinance. SECTION 11 - COMPENSATION TO CITY A Non-Certificated Telecommunications Provider shall compensate the City by payment of a Public Rights-of-Way Use Fee as provided below: (A) Public Rights-of-Way Use Fee. From the Effective Date of the Municipal Consent, and for each calendar quarter period thereafter, the Non-Certificated Telecommunications Provider shall pay a Public Rights-of-Way Use Fee to the City which shall be the greater of either (1) or (2), and shall also pay, to the extent applicable, the Street Crossing Fee described in (3) below: (1) the Access Line Fee described in (B) below; or (2) the total of $0.10 per linear foot, for each linear foot of Facilities in the Public Rights-of-Way; and (3) Street Crossing Fee: For each new Public Rights-of-Way crossing by Facilities in the applicable calendar quarter since the last quarterly payment in which a Public Rights-of-Way is crossed underground and which the surface was altered or disturbed, except as to boring, or in which the Public Rights-of-Way was crossed overhead and the pedestrian or vehicular traffic was materially affected the Non- Certificated Provider shall pay the City $850.00. It shall be presumed to be a material affect if a sidewalk or lane of traffic is blocked, in whole or in part, for more than four hours. In the event Ordinance 0-99-1170 Page 9 of 18 the Access Line Fee is the greater amount between (1) and (2) above, the amount of the Access Line Fee paid to the City in the applicable calendar quarter shall be a credit applied to the Street Crossing Fee due that quarter. These fees are used to calculate the total compensation due the City and are not to be construed as the setting of a charge for end-users. Each Municipal Consent shall provide that the Public Rights-of- Way Use Fee of this subsection (A) (2) and (3) above may be adjusted once every three (3) years by the City, but such adjustment shall not exceed 10% in anyone three (3) year period. u (8) Access Line Fee Calculation. (1) To the extent that the Access Line fee is applicable to the Non-Certificated Provider in accordance with Subsection (A) above: (a) The Non-Certificated Telecommunications Provider shall pay the Access Line Fee for each Access Line owned or used by the Non- Certificated Telecommunications Provider, as calculated as of month- end that is activated for use by an end user customer in the City of Colleyville the Non-Certificated Telecommunications Provider or by another Non-Certificated Telecommunications Provider by lease or otherwise. (b) Number of Access Lines. Subject to City's agreement not to disclose this information unless required by law, Non-Certificated Telecommunications Provider agrees to provide quarterly or as requested by the City, within a reasonable time after receipt of the City's written request, a report showing the number of Access Lines being maintained or operated by Non-Certificated Telecommunications Provider that are serving premises within the City, on a month end basis. The City agrees that the report shall be used solely for the purposes of verifying the number of Non- Ordinance 0-99-1170 Page 10 of 18 Certificated Telecommunications Provider's Access Lines serving premises within the City. Upon written request, Non-Certificated Telecommunications Provider shall verify the information in the report and, upon reasonable advance notice, all non-customer specific records and other documents required for such verification shall be subject to inspection by the City expressly excluding any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. 1 2701 et seq. (C) Confidential Records. If the Non-Certificated Telecommunications Provider notifies the City by a conspicuous written notation of the confidential nature of any information (including, but not limited to the information in paragraph (8) of this section), reports, documents, or writings, the City agrees to maintain the confidentiality of the information, reports, documents, and writings to the extent permitted by law. Upon receipt by the City of Colleyville requests for the Non-Certificated Telecommunications Provider's confidential information, reports, documents, or writings, the City shall notify the Non-Certificated Telecommunications Provider of the request in writing by facsimile transmission. The City shall furnish the Non-Certificated Telecommunications Provider with copies of all requests for Attorney General's opinions pertaining to the Non-Certificated Telecommunications Provider's confidential information, reports, documents or writings. The City shall request an Attorney General's Opinion before disclosing any confidential information, reports, documents or writings, and shall furnish the Non-Certificated Telecommunications Provider with copies of Attorney General Opinion Requests as soon as practicable that it may pertain to the Non-Certificated Telecommunications Provider's Confidential Information, reports, documents or writings. (D) No other fees. The payments due hereunder shall be in lieu of any construction, building or other permit, approval, inspection, or other similar fees or charges, including, but not limited to, all general business permit fees customarily assessed by the City for the use of the Public Rights-of-Way against Persons operating businesses similar to that of a Non-Certificated Telecommunications Provider. Further, such Fees shall constitute full compensation to the City for all Non-Certificated Telecommunications Provider's Facilities located Ordinance 0-99-1170 Page 11 of 18 within the Public Rights-of-Way, including interoffice-transport and other Facilities that do not terminate at an end-user customer's network interface device, even though those types of lines are not used in the calculation of the Public Rights-of-Way fee. The compensation paid herein is not in lieu of any generally applicable ad valorem taxes, sales taxes or other generally applicable taxes, fees, development impact fees or charges, or other statutory charges or expenses recoverable under the Texas Public Utility Regulatory Act, or successor statutes. (E) Uncollectibles. Any other provision of this agreement notwithstanding, Non- Certificated Telecommunications Provider shall not be obligated to pay the City for any Access Lines or private line termination points the revenues for which remain uncollectible. SECTION 12 - CITY PAYMENT DUE DATES (A) A Non-Certificated Telecommunications Provider shall remit the Public Rights-of-Way use Fee on a quarterly basis, and if applicable, the Certified Statement required in Section 11 (8)(1 )(b). Payment shall be made on or before the 45th day following the close of each calendar quarter for which the payment is calculated and shall be paid by wire transfer to an account designated by the City Manager. SECTION 13 - AUDITS (A) On 30 days notice to a Non-Certificated Telecommunications Provider the City may audit a Non-Certificated Telecommunications Provider for a period of time to the fullest extent allowed by law. The Non-Certificated Telecommunications Provider shall furnish information to demonstrate its compliance with the Municipal Consent and/or other provisions of this Ordinance. (8) A Non-Certificated Telecommunications Provider shall keep complete and accurate books of accounts and records of business and operations that commutatively reflect the monthly count of all Access Lines, the linear feet of Facilities in the Public Rights-of-Way, and the street crossings for a period of one (1) year after the expiration of the term of Municipal Consent. The Ordinance 0-99-1170 Page 12 of 18 City Manager may require the keeping of additional records or accounts that are reasonably necessary for purposes of identifying, accounting for, and reporting the number of Access Lines, Facilities in the Public Rights-of-Way, or street crossings used to deliver Telecommunication Services or for calculation of the payments due hereunder. The City may examine the Non- Certificated Telecommunications Provider's books and records referred to above, expressly excluding any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. '2701 et seq, but only to the extent such records reasonably relate to providing information to verify compliance with this Ordinance and the Municipal Consent. (C) A Non-Certificated Telecommunications Provider shall make available to the City or the City's designated agent (hereinafter "agent"), for the City or it's agent to examine, audit, review and copy, in the City, on the City Manager's reasonable written request, its books and records referred to above, including papers, books, accounts, documents, maps, and plans that pertain to compliance with the Municipal Consent. A Non-Certificated Telecommunications Provider shall fully cooperate in making records available and otherwise assist the City examiner. The City examiner shall not inspect or copy or otherwise demand production of customer specific information or any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. '2701 et seq. (0) The City Manager may, at any time, make reasonable inquiries pertaining to Non-Certificated Telecommunications Providers' performance of the terms and conditions of a Municipal Consent granted under this Ordinance. Non- Certificated Telecommunications Providers shall respond to such inquiries on a timely basis. (E) Upon written request by the City Manager, to the extent the documents are reasonably identified, Non-Certificated Telecommunications Providers shall furnish to the City within 30 business days from the date of the written request copies of all public petitions, applications, written communications and reports submitted by Non-Certificated Telecommunications Providers, to the FCC and/or to the PUC or their successor agencies, but only as they Ordinance 0-99-1170 Page 13 of 18 relate to any matters affecting the physical use of the Public Rights-of-Way in the City. (F) The provisions of this Section shall be continuing and shall survive the termination of a Municipal Consent granted under this Ordinance and shall extend for one year beyond the term of the Municipal Consent granted to the Non-Certificated Telecommunications Provider and the City shall have all the rights described in this Section. SECTION 14 - TRANSFER (A) No Municipal Consent nor any rights or privileges that a Non-Certificated Telecommunications Provider has under a Municipal Consent, or the Facilities held by a Non-Certificated Telecommunications Provider for use under such Municipal Consent which are in the Public Rights-of-Way, shall be sold, resold, assigned, transferred or conveyed by the Non-Certificated Telecommunications Provider, either separately or collectively, to any other Person, without the prior written approval of the City by ordinance or resolution. The City's approval shall be based upon the transferee providing adequate information to the City that it has the ability to perform and comply with the obligations and requirements of the Municipal Consent. Such approval shall not be unreasonably withheld or delayed. Should a Non- Certificated Telecommunications Provider sell, assign, transfer, conveyor otherwise dispose of any of its rights or interests under its Municipal Consent, including such Non-Certificated Telecommunications Provider's Telecommunications Network, or attempt to do so, without the City's prior consent, the City may revoke the Non-Certificated Telecommunications Provider's Municipal Consent for default, in which event all rights and interest of the Non-Certificated Telecommunications Provider under the Municipal Consent shall cease. (8) Any transfer in violation of this Section shall be null and void and unenforceable. However, such a transfer shall not void the Municipal Consent as to the transferee, unless and until the City has given notice that such a change in control necessitates compliance with Section 14 and either the Non-Certificated Telecommunications Provider does not initiate compliance with Section 14 within thirty (30) days after the above notice has Ordinance 0-99-1170 Page 14 of 18 been given by the City, or the City has validly denied granting its approval to the transfer. (C) Any change of control of a Non-Certificated Telecommunications Provider shall constitute a transfer under this Section. There shall be a rebuttable presumption of a change of control of a Non-Certificated Telecommunications Provider upon a change of 25% or greater in the ownership of such Non-Certificated Telecommunications Provider. Such a change in control shall be deemed a transfer that requires consent of the City. (D) A mortgage or other pledge of assets to a bank or lending institution in a bona fide lending transaction shall not be considered an assignment or transfer. (E) Notwithstanding anything else in this Section 14, if the City has not approved or denied a request to transfer under this Section at the next Council meeting following forty (40) days after written notice of such request from the Non-Certificated Telecommunications Provider to the City, it shall be deemed approved. Such time frame may be extended by mutual agreement of the parties. (F) Notwithstanding any other provision in this Section 14, a Non-Certificated Telecommunications Provider may without City approval, (i) transfer or assign the Facilities in the Public Rights-of-Way under a Municipal Consent to another Non-Certificated Telecommunications Provider who has a Municipal Consent under this Ordinance; (ii) transfer or assign the Municipal Consent to an affiliate that is a Certificated Telecommunications Provider or (iii) collaterally assign the Municipal Consent to its lender as security, and said lender may exercise its security interest and transfer the Municipal Consent to a third party that is a Certificated Telecommunications Provider; however, unless there is prior consent by the City which releases the holder of the Municipal Consent (An Assignor) from its obligations and liabilities under the Municipal Consent, such Assignor is not released from any obligations or liabilities that arise from this Ordinance and/or the Municipal Consent. The Non-Certificated Telecommunications Provider transferring or assigning the Facilities the Municipal Consent must give written notice of such to the City Manager within fourteen (14) days notice of such action. Ordinance 0-99-1170 Page 15 of 18 SECTION 15 - NOTICES TO CITY (A) A Non-Certificated Telecommunications Provider shall notify the City Manager as is provided in the Municipal Consent Agreement. (8) A Non-Certificated Telecommunications Provider shall give written notice to the City not later than 15 days before a transfer or change in operations that may affect the City. SECTION 16 - CIRCUMVENTION OF FEE PROHIBITED (A) A Person may not circumvent payment of any fees payable hereunder or evade payment of such fees by bartering, transfer of rights, or by any other means. SECTION 17 - RENEWAL OF MUNICIPAL CONSENT (A) A Non-Certificated Telecommunications Provider shall request a renewal of a Municipal Consent by making written application to the City Manager at least 90 days before the expiration of the consent. SECTION 18 - ANNEXATION; DISANNEXATION (A) Within thirty (30) days following the date of the passage of any action affecting the annexation of any property to or the deannexation of any property from the City's corporate boundaries, the City agrees to furnish Non-Certificated Telecommunications Provider written notice of the action and an accurate map of the City's corporate boundaries showing, if available, street names and number details. For the purpose of compensating the City under this Ordinance, a Non-Certificated Telecommunications Provider shall start including or excluding Access Lines within the affected area in the Non-Certificated Telecommunications Provider's count of Access Lines on the effective date designated by the Comptroller of Public Accounts - Texas for the imposition of State local sales and use taxes; but in no case less than thirty (30) days from the date the Non-Certificated Telecommunications Provider is notified by the City of Colleyville the annexation or de-annexation. Ordinance 0-99-1170 Page 16 of 18 SECTION 19 - SEVERABILITY (A) The provisions of this ordinance are severable. However, in the event this Ordinance or any tariff that authorizes the Non-Certificated Telecommunications Provider to recover the fee(s) provided for in this Ordinance or any procedure provided in this Ordinance or any compensation due the City under this Ordinance becomes unlawful, or is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, illegal or otherwise inapplicable, in whole or in part, or is exchanged for another means of compensation under higher authority, the remaining parts shall be fully enforceable and the Non-Certificated Telecommunications Provider and City shall meet and negotiate a new agreement that is in compliance with the authority's decision or enactment. Unless explicitly prohibited, the new agreement shall provide the City with a level of compensation comparable to that set forth in this Ordinance as long as the agreed-to compensation is recoverable by the Non-Certificated Telecommunications Provider in a manner permitted by law for the unexpired portion of the term of this Ordinance. SECTION 20 - GOVERNING LAW (A) This Ordinance shall be construed in accordance with the City Code(s) in effect on the date of passage of this Ordinance to the extent that such Code(s) are not in conflict with or in violation of the Constitution and laws of the United States or the State of Texas, subject to the City's ongoing authority to adopt reasonable regulations to manage its Public Rights-of- Way pursuant to the Construction Public Rights-Of-Way Ordinance. Municipal Consents entered into pursuant to this Ordinance are performable in Tarrant County, Texas. SECTION 21 - TERMINATION (A) The City shall reserve the right to terminate any Municipal Consent and any rights or privileges conveyed under this Ordinance in the event of a material breach of the terms and conditions of the Municipal Consent or of this Ordinance, subject to thirty (30) days written notice and the opportunity to cure Ordinance 0-99-1170 Page 17 of 18 the breach during that thirty (30) day period (or if reasonably determined by the City, a longer notice and cure period will be allowed, if the breach takes longer than thirty (30) days to cure and the Non-Certificated Telecommunications Provider acts diligently and in good faith to cure the breach) . (8) Material breaches of a Municipal Consent specifically include, but are not limited to, continuing violations of Sections 11 [Compensation to City], the Construction in the Public Rights-Of-Way Ordinance, and the furnishing of service of any kind that requires municipal authorization but that is not authorized by Section 3{A). (C) A material breach shall not be deemed to have occurred if the violation occurs without the fault of a Non-Certificated Telecommunications Provider or occurs as a result of circumstances beyond its control. Non-Certificated Telecommunications Providers shall not be excused from performance of any of their obligations under this Ordinance by economic hardship, nor misfeasance or malfeasance of their City Managers, officers or employees. (D) A termination shall be declared only by a written decision by motion, resolution or ordinance of the City Council after an appropriate public proceeding before the City Council, which shall accord the Non-Certificated Telecommunications Provider due process and full opportunity to be heard and to respond to any notice of grounds to terminate. All notice requirements shall be met by giving the Non-Certificated Telecommunications Provider at least fifteen (15) days prior written notice of any public hearing concerning the proposed termination of its consent. Such notice shall state the grounds for termination alleged by City. SECTION 22 - UNAUTHORIZED USE OF PUBLIC RIGHTS-OF-WAY (A) Any Person seeking to place Facilities on, in or over the Public Rights-of- Way, City property, City structures shall first file an application for a Municipal Consent with the City and shall abide by the terms and provisions of this Ordinance pertaining to use of the Public Rights-of-Way and pay the fees specified herein. Ordinance 0-99-1170 Page 18 of 18 (B) The City may institute all appropriate legal action to prohibit any Person from knowingly using the Public Rights-of-Way without the City's consent in accordance with the terms of this Chapter and with a Municipal Consent. (C) Any Person using the Public Rights-of-Way without a Municipal Consent shall be liable for the same fees and charges as provided for herein. SECTION 23 - EFFECTIVE DATE This Telecommunications Ordinance takes effect on August 17,1999. AND IT IS SO ORDERED. The firS~ding and public hearing being conducted on the of "jll,sl ,/999 . 3,.1 day The seco of reading and public hearing being conducted on the r ,/999. /1~ day n~;J~ ~Harris, TRMC, CMC City Secretary ;ro FORM AND LEGALITY: