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HomeMy WebLinkAboutOrd 1626 - use of public places 0' Ordinance No. 1626 AN ORDINANCE RELATING TO THE USE OF STREET AREAS AND OTHER PUBLIC PLACES; AMENDING THE CODE OF ORDINANCES; CONTAINING FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY PLACE: Section 1. The purpose of this Ordinance is to: (1) assist in the management of facilities placed in, on or over the public rights of way (ROW) to minimize the congestion, inconvenience, visual impact and other adverse effects, and the costs to the public resulting from the placement of facilities within ROW; (2) govern the use and occupancy of the ROW; (3) assist the City in its efforts to protect the public health, safety and welfare; (4) conserve the limited physical capacity of the ROW held in public trust by the City; (5) preserve the physical integrity of the streets and highways; (6) to control the orderly flow of vehicles and pedestrians; (7) keep track of the different entities using the rights-of-way to prevent interference betweery them; (8) assist on scheduling common trenching and street cuts; (9) protect the safety, security, appearance, and condition of the ROW; (10) adopt, on a competitively neutral and nondiscriminatory basis, rules and regulations for use of ROW; (11) exercise, in accordance with applicable federal and state laws, the City's historical authority to control and manage its ROWand to receive reasonable compensation, as custodian of public property, for private, commercial ROW use, on a competitively neutral and nondiscriminatory basis; and, (12) recognize that ROW areas within the boundaries of the City are valuable public properties, the use of which is a valuable property right, for which users should pay reasonable compensation. Section 2. Chapter 19 of the Code of Ordinances of the City of West University Place is hereby proposed to be amended by adding Subsections F and G, as shown in Exhibit A which is attached to this ordinance and made a part hereof for all purposes. The City Council formally submits the proposed amendments for public comments, and asks that this matter be considered as a adjunct to the proposed joint public hearing on "personal wireless service facilities." The Public Works Director is authorized to notify current and potential ROW users and seek their comments Section 3. Pending a decision on this matter, no permit or approval may be issued for a new or reconstructed "regulated facility" that does not comply with the regulations r.n.."""'.,..,---=-""""f....~.,--""-~.._"'~"..:M...::J. ,. _:rr:r-'-------' - - '''~'l~r'' - ~ set out in Exhibit A and the other applicable ordinances, laws, rules and regulations (Le., compliance with both the proposed and existing regulations is required). This is a temporary regulation that expires after 135 days, which is an estimate of the minimum time necessary for receipt of public comments and final consideration of the I appropriate permanent regulations, all in conjunction with the related PWSF regulations. This temporary regulation does not forbid pre-application procedures, applications and other steps preceding issuance of a permit or approval. Section 4. If any word, phrase, clause, sentence, paragraph, section or other part of this ordinance, or the application thereof to any person or circumstance, shall ever be held to be invalid or unconstitutional by any court of competent jurisdiction, the remainder of this ordinance and the application of such word, phrase, clause, sentence, paragraph, section or other part of this ordinance to any other persons or circumstances shall not be affected thereby. All ordinances and parts of ordinances in conflict herewith are hereby repealed to the extent of the conflict only. Section 5. The City Council officially finds, determines and declares that sufficient written notice of the date, hour, place and subject of each meeting at which this ordinance was discussed, considered or acted upon was given in the manner required by the Open Meetings Law, Chapter 551, Texas Government Code, as amended, and that such meeting has been open to the public as required by law at all times during such discussion, consideration and action. The City Council ratifies, approves and confirms such notices and the contents and posting thereof. Section 6. The rapidly-changing regulatory and commercial environment for the use of public ROWand the approaching construction around the borders of the City require that new regulations be adopted at the earliest possible time, and a state of emergency is declared requiring that this ordinance be read and adopted finally at this meeting. Accordingly, this ordinance shall be adopted finally on first reading and shall become effective immediately upon adoption and signature. L__ ~~----- ~ r= ... . ._.....mr:J. .lUL.[ PASSED, APPROVED AND ADOPTED on t?7~ ,~ , 1999. si~l~~ Mayor ATTEST: (Seal) ~7 RevieweJ ~ ' UM City Attorney b55:\540row1 -.----~~rr.=~----,~-~~-;... - r- -.----- --~. -. -'-------..";::!IT. --------,--,-------"c..':-1' l~l Exhibit A Subchapter F. Regulated Facilities Sec. 19.601. Definitions. In this subchapter and in Subchapter G: ., (1) "Affiliate" means a person who controls, is controlled by, or is under common control with a user. (2) "Certificated telecommunications provider" means the same as in Section 283.002(2), Texas Local Government Code [any entity that has been granted a.certificate from the Texas Public Utility Commission under Chapter 54 of Tex. Utility Code authorizing that entity to provide local exchange telephone service]. (3) ''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 that are placed in, on or over the Public Rights-of-Way. To the extent allow~d 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. (4) "Regulated facilities" means any and all of the wires, cables, fibers, duct spaces, manholes, pipes, poles, conduits, underground and overhead passageways and other equipment, structures, plant and appurtenances and all associated physical equipment placed in, on or under ROW, other than: (i) facilities owned by the City or other governmental agencies authorized by the City, and (ii) driveways, sidewalks, landscaping, local utility service lines and similar facilities of abutting owners serving their property. (5) "ROW" means the same as in the Section 283.002(6), Texas Local Government Code [i.e., 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. ] (6) "ROW work" means to place, install, construct, maintain, alter, operate, inspect, connect, or disconnect any regulated facility. (7) "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 regulated facilities, exPressly excluding cable services or open video systems as defined in Title VI of the Communications Act of 1934, as amended, and any service that may only be offered by certificated telecommunications providers. (7) "User" means a person owning, controlling, using or placing regulated facilities in, on EXHIBIT A Page A-I .1lITI ; .,1 1IIIIItr u ~-----_u",1T'- or over ROW in the City. Sec. 19.602. Authorization requiried. (a) In general. All the following requirements must be met for all regulated facilities, as applicable: (1) There must be a City Council authorization in effect for the regulated facility, in the form of a franchise, right-of-way agreement, municipal consent under Subchapter G or similar authorization (Exception: this requirement does not apply to telecommunications facilities, to the extent the franchise requirement is preempted by Chapter 283, Texas Local Government Code). (2) There must be a construction permit for the regulated facility in effect, in those circumstances described in Subchapter B; or (3) All related ROW work must comply with this subchapter and with any applicable City Council authorization. (4) The regulated facilities must comply with this subchapter and with any applicable City Council authorization. (5) Each user of the regulated facilities in question must comply with the applicable provision of this subchapter. (b) Compliance required It shall be unlawful for any person to place, install, construct, maintain, alter, operate, control, use, rent or lease (as owner or tenant), control or own any regulated facility, if: (i) any of the foregoing requirements is applicable to the facility in question, or to that person, and (ii) the requirement is not met or satisfied. (c) Telecommunications, old franchises, etc. It is an affirmative defense to prosecution under subsection (b), above, that: (1) the activity in question was authorized by Chapter 283, Texas Local Government Code (pertaining to certificated telecommunications providers) or other controlling law, without City approval or concurrence; or (2) the activity in question was authorized by a current, unexpired consent, franchise, agreement or other authorization from the City Council, and.either: (i) the authorization conflicts or preempts the requirement sought to be enforced, or (ii) there was full compliance with the authorization, and, from and after the 91 st day following adoption of this subchapter, there was also full compliance with Sections 19.603, 16.604, 19:605 and 19.606 of this chapter. Sec. 19.603. Administration and enforcement. (a) In general. The Public Works Director shall administer and enforce this subchapter, subject to the jurisdiction of the BSC as provided for above. (b) Information. Each user shall report information related to the use of the ROW that the Public Works Director requires in the form and manner reasonably prescribed by the Public Works Director, including but not limited to: (1) complete information relating to the user's regulated facilities and ROW work; (2) "as built" drawings, in a format reasonably prescribed by the Director, and as EXHIBIT A Page A-2 allowed by law, within sixty days of completion of any section of regulated facilities, and when otherwise requested by the Public Works Director; (3) written notice at least 15 days before any transfer of control or material change in operations; and (3) within 30 days following a written request, copies of all public petitions, applications, written communications and reports submitted by the user to federal or state regulatory agencies, but only as they relate to any matters affecting the physical use of the ROW, to the extent the documents are reasonably identified. The provisions of this section shall be continuing and shall survive the termination of any consent or other authorization for a period of one year. (c) Reimbursement of costs. If a user fails to perform any work required by this subchapter (for example, work to move or remove facilities or to restore the ROW) within the prescribed time (or within a reasonable time, if no time is prescribed), the City may perform the work or have it performed. The user shall reimburse the City for the costs so incurred within 30 days from the date the user receives an invoice and a written determination by the Public Works Director that the amounts are correct and owed by the user. The City incurs no liability by taking such action. Reimbursement is not a bar to other enforcement action or to prosecution for any violation. Sec. 19.604. General regulations. (a) New facilities. A user must deliver to the City construction plans and maps showing the location and proposed routing of new (or reconstructed) regulated facilities at least 30 days before beginning construction or reconstruction. A user may not undertake construction except in accordance with complete plans and specifications approved in writing by the Public Works Director. The Director shall either grant such approval or deny it based upon this subchapter or other applicable laws, rules, specifications or regulations, sound engineering practice, impact upon surrounding area, availability of an alternative location or routing or some combination of these factors. (b) General standards. All ROW work must be performed: (1) in accordance with this Chapter and other applicable laws, rules, regulations, specifications and ordinances; (2) in a manner that minimizes interference with the use of public and private property, following all reasonable construction directions given by City officials to minimize any such interference; and (3) only after the required authorizations and approvals are obtained (see above) and the user has given the Public Works Director at least 48 hours, advance notice of the start of work and the specific location of the work. (c) Underground requirements. All new or reconstructed regulated facilities shall be located underground except as otherwise authorized by a special exception issued by the BSC. The BSC may only issue such a special exception ifit finds that the user has made a compelling demonstration that: (i) underground placement is not reasonable or not feasible, (ii) underground EXHIBIT A Page A-3 "~~~ ~ ~.~~.C"'",-~~~~'~~~=~ _ ____~_........:...._'I_..L'J...ii:.Ii:r C""l'!:l'!"""---'-- construction is not required of other similar users and (ill) above-ground regulated facilities will cause a lower impact upon nearby residents and properties than other reasonable alternatives. For this purpose, impact is measured in terms of access requirements, disruption or displacement of other facilities or activities, visual intrusiveness, risk of physical impactor other external effects and reduction in property values. Even if a special exception is issued, the Public Works Director may require aerial facilities to be relocated underground upon a future change in circumstance (such as, for example, the relocation of other facilities, or the availability of underground conduit space). Underground work must use trenchless technology, unless otherwise: authorized by the Public Works Director based upon sound engineering principles and the likelihood of disruption to other facilities and activities. (d) Restoration. When any ROW work is completed, or when no substantial work is done at the site of any ROW work for more than three consecutive business days, the user shall, beginning within five days thereafter, restore the ROW as follows: (1) replace and properly relay and repair the pavement, curb, sidewalk and gutter (including the surface and base), other structures, any irrigation system and any landscape treatment that may have been affected by the ROW work; (2) return the ROWand all structures therein to their pre-existing condition as nearly as practicable, and (3) otherwise comply with applicable specifications promulgated by the Public Works Director and in effect at that time. Such restoration must be completed as soon as practicable. Should the Public Works Director determine, within two years from the date of any restoration work, that the work was ineffective, defective in materials or workmanship or otherwise not in accordance with City standards, the user shall again restore the ROW as required by this section. Such work must begin within five days following receipt of written notice and must be completed as soon as practicable thereafter. (f) Emergency moving. If the Public Works Director declares an emergency with regard to the health and safety of the citizens and requests by written notice the removal or alteration of regulated facilities, a user shall remove or alter the user's regulated facilities, at its own expense, by the deadline provided in the Public Works Director's request. The user and the City shall cooperate to the extent reasonable and feasible to assure continuity of service. (g) Temporary moving. A user shall, at its own expense, temporarily remove, raise or lower its regulated facilities to permit the moving of houses or other bulky structures, if the Public Works Director gives at least 72 hours advance written notice. The user may require that its costs be reimbursed, unless the work is to accommodate construction, operation, repair, maintenance or installation of a City or governmental facility (including a change of width or grade) or another City or governmental operation in the ROW. (h) Other moving or alteration. Within 90 days following receipt of notice from the Public Works Director, a user shall, at its own exp~nse, permanently, remove, relocate, change or alter the position of the user's regulated facilities. The Director shall grant reasonable requests for time extensions for good cause shown. The user may require that its costs be reimbursed, unless: (i) the work is to accommodate construction, operation, repair, maintenance or installation of a City or another governmental facility (including a change of width or grade) or another City or EXlllBIT A Page A-4 ....1..___-'-_" 1._' l.1..IJ....IIL.I: . ----------~----- -,,-. ~ '''~'!~ [' ~- - governmental operation in the ROW, or (ii) the work is required to place regulated facilities underground as authorized by this subchapter. (i) Trees. A user shall not trim or damage trees (including their roots) except when: (i) needed for the safe and reliable operation, use and maintenance of its regulated facilities and (ii) authorized by a permit under Chapter 22 of this Code. All tree work shall.be performed in accordance with standards promulgated by the City. All trimmings shall be immediately removed when workis completed at any given location. G) Removal. Unless the Public Works Director approves another disposition by written permit, a user shall remove any of its regulated facilities from the ROWand restore the affected areas (as required in the case of other ROW work), if: (i) any required permit or authorization expires or is terminated or (ii) the regulated facility is not used for a period of90 days or longer. Removal and restoration shall begin within 30 days following either such occurrence and must be completed within 30 days thereafter. Sec. 19.605. Priorities for use of ROW. (a) Municipal use. For municipal or purposes, the City has first priority over all other uses of the ROW. The City retains the right to lay sewer, gas, water, and other pipes and cables and conduits, and to do underground and overhead work:, and attachments, restructuring or changes to regulated facilities, and to change the curb, sidewalks or the grade of streets. (b) Standards. The City shall assign locations in, on or over ROW among users and other persons with due consideration to public health and safety considerations of each use. Ifthere is limited space available for additional users, the City may limit new users, as allowed under state or federal law. (c) Abutting uses. If the City authorizes abutting landowners to occupy space under the surface of any ROW, the grant to an abutting landowner shall be subject to the rights of any previously authorized user at that location. If the City closes or abandons a ROW that contains a user's regulated facilities, the closure or abandonment shall be subject to the rights of the user. Sec. 19.606. Insurance. (a) In general. At all times when work is done in the ROW or when regulated facilities are present in the ROW, a user shall maintain in effect insurance policies issued by companies authorized and admitted to do business in Texas. Coverages, policy provisions and limits of liability shall be as prescribed by the Public Works Director based upon City standard insurance requirements for City contractors constructing streets, water and sewer facilities in ROW areas. The insurance requirements may be adjusted above the City standard levels when changes in statutory law, court decisions or the claims history or risk factors of the industry or a user require adjustment, in the judgment of the Public Works Director. (b) Self-insurance. In lieu of insurance"the Public Works Director may accept evidence of self-insurance, upon submission of proof (including financial data) that the self-insurance is equivalent to, or better than, the required insurance. ( c) Submission of proof. Proof of required insurance (or self-insurance) must be submitted to the Public Works Director with applications for permits and other approvals and must be kept EXHIBIT A Page A-S -~~-~~-~-~---'I'~'~--~~=~ r".... " llrI-l ~ ---------,---- ----.-"-;--...'''''''tll'l'~ ,,'C" ,-,_. current with updated filings. Additional proof shall be submitted at other times upon request. The Public Works Director may prescribe the form of insurance certificates and other proof to be submitted. Sec. 19.607. Indemnity. (a) In general. Each user shall promptly defend, indemnify and hold the City and its officers, agents and employees harmless from and against: (i) all damages, costs, losses and expenses for the repair, replacement, or restoration of City's property, equipment, materials, structures and facilities which are damaged, destroyed or found to be defective as a result of the user's acts or omissions, (ii) all claims, demands, suits, causes of action, liabilities. and judgments for (a) damage to or loss of property and/or (b) death, bodily injury, illness, disease, loss of services, or loss of income or wages, arising out of, incident to, concerning or resulting from a negligent or willful act or omission of the user, or any ofits agents, employees, contractors or subcontractors, in the performance of activities related to regulated facilities or in connection with use of the ROW. (b) Other provisions. This indemnity provision shall not apply to any liability caused by the negligence of the City, its officers,. employees, agents, contractors, or subcontractors. This indemnity is solely for the benefit of the indemnitees and is not intended to create or grant any rights, contractual or otherwise, to any other person or entity. ( c) Confirmation. A written confirmation of indemnity must be signed and filed with the Public Works Director with applications for permits and other approvals and at other times upon request. The Public Works Director may prescribe the form of the confirmation, in accordance with this section and with other customary requirements (e.g., conspicuousness). Sec. 19.608. Interpretation of subchapter. This Subchapter shall be interpreted and construed to harmonize with other ordinances and regulations and with the Constitution and laws of the United States and the State of Texas. Subchapter G. Municipal Consents Section 19.701. Defined terms. Words and phrases specially defined in Subchapter F of this chapter have the same meanings in this subchapter. Section 19.702. Consents in general. (a) In general; non-exclusivity. Subject to the restrictions set forth herein, the City may consent to use of ROW for regulated facilities. All municipal consents shall be non-exclusive. (b) CATV, video, etc. No Municipal Consent under this subchapter authorizes the provision of any services not specifically described in 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. ~ 521, et seq.)]. Any other content service are expressly excluded. The use of ROW for the delivery of any service not EXlllBIT A Page A-6 I ~~------~~~.- .-- covered by this subchapter is subject to all other applicable City requirements, including, for example, a traditional franchise ordinance. (c) Other provisions. Use of the ROW shall be governed by the other provisions of this chapter as well as other applicable regulations. (d) Attachments. A Municipal Consent does not grant attachment rights or authorize the use of City utility infrastructure. (e) Fees. Every user shall be liable for the same fees and charges as provided for herein, whether a consent, franchise or other authorization is obtained, or not. Section 19.703. Procedures. (a) Applications. A person must submit an application to the Public Works Director to initiate the process to obtain a Municipal Consent. The application must be on a form prescribed by the City, 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 regulated facilities, to the extent known at the time of the application, (2) a general description of the services to be provided; (3) a description of the effect on the ROW, including construction, post-application activity, routine maintenance, etc., 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 along the proposed route; (C) the specific trees, structures, improvements, facilities and obstructions, if any, that the applicant proposes to affect; and (D) additional data that the Public Works Director reasonably requests; and (4) a non-refundable application fee of $850 (to be credited against the first quarterly payment of ROW fees). (b) Review. The City Manager shall review an application submitted 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 days after a completed application has been filed. The City Mangager may recommend that another type of authorization (e.g., a traditional franchise) in lieu of a Municipal Consent. Upon mutual written agreement between the City and an applicant, action may be postponed for one or more periods. (c) Council action. Except for delay caused by the applicant, the City Council will take initial action on the City Manager's recommendation within thirty days after receipt by the Council of the City Manager's recommendation. No City Council action is required to confirm a recommendation to deny, but the City Council will provide an acknowledgment of receipt of the recommendation upon request. As provided in the City Charter, an ordinance is ordinarily required, and referendum provisions may also apply. (c) No guarantee, etc. Nothing in this Code requires the City to grant any consent or EXHIBIT A Page A-7 1 L----.-.--.------~~r:=~=_.______'_:________________- ~_~..-.~. ..- . .".. -.E:..'"::J.__ _ ________~_--'---_........_,J L.Jjill..lLl: ---~---7"-,-.'~Tl'~" ,c.-,- authorization to use ROW. The Cjty retains the full discretion allowed by applicable regulations. Review and approval by the City does not constitute a guarantee or representations of sufficiency of the design or adequacy of any facilities or services. The applicant retains full responsibility for the design and adequacy. Section 19.704. Preparation and contents. (a) In general. If the City Manager finds that the application meets the r~quirements of this chapter, 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. (b) Certain contents. A Municipal Consent submitted to the City Council must include the following provisions: . (1) a term of not more than five years; (2) a requirement that the user comply with all applicable regulations; (3) provisions incorporatin~ all applicable provisions of the City Charter and this Code, including, without limitation, this subchapter and Subchapter F; and (4) other provisions recommended by the City Attorney or the City Manager. Section 19.705. Reconsideration procedure. Any person whose application for a Municipal Consent is denied or whose Municipal Consent is terminated may petition the City Council for reconsideration. 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 19.706. ROW fees. (a) In general. A Non-Certificated Telecommunications Provider shall compensate the City by payment of a ROW fee as provided below. Exception: this requirement does not apply to telecommunications facilities, to the extent fees are prohibited or preempted by Chapter 283, Texas Local Government Code. ' (b) Calculation. For each calendar quarter or part thereof during the term of a Municipal Consent, the ROW fee is the greater of either the access line fee (if applicable) or the linear foot fee, plus the street crossing fee, as follows: (1) Access line fee (telecommunications). The access line fee applies if the user has access lines in the City for which an access line fee is in effect under Chapter 283 of the Texas Local Government Code. The amount is as prescribed, per access line, by the Public Utilities Commission, and as provided below. (2) Linear foot fee. The linear foot fee is $0.10 per quarter for each linear foot of regulated facilities up to two inches in diameter. Greater width facilities have a fee that is proportionally greater (Le., a six-inch diameter facility has a fee of $0.30 per foot). Boxes, cabinets and other above-ground enclosures count as 50 linear feet each, or one linear foot per 50 cubic inches of volume, whichever is greater. (3) Street crossing fee. For each calendar quarter during which the surface of any ROW is EXHIBIT A Page A-8 L-----.---~----~-.---r'- ,. r--- ,'-' --- ----''''=='''''.. . ;;IT, ;1 -llillll;r ."--------,----------~--- ---='-"'rrT..,---,-c~~'~; -- materially disturbed by a regulated facility crossing, or by work related to the crossing, the fee is $850.00. It shall be presumed to be a material disturbance ifa sidewalk or lane of traffic is blocked, in whole or in part, for more than four hours, or if there is any physical alteration or disturbance of the ROW. If the access line fee is greater than the linear foot fee (see above) in a quarter, the amount of the access line fee is credited toward the street crossing fee for that same quarter. ( c) Effect on end users. 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. (d) Franchises, etc. These fees are the minimum due for use of the ROW. Ifa franchise, another ordinance (e.g., Subchapter D) or other authorization requires a greater fee, the greater fee prevails. 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. ( e) Access line details. The following apply to users with access lines: (1) The access line fee is due for each access line owned or used by the user, counted as of month-end, that is activated for use by an end user customer in the City of the user or by another Non-Certificated Telecommunications Provider, by lease or otherwise. An access line fee is not due for any access line if the revenues for it are uncollectible. (2) Subject to City's agreement not to disclose this information unless required by law, each user must provide quarterly (or within a reasonable time after receipt of the City's written request), a report showing the number of access lines being owned, used, maintained or operated by the user 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 access lines. Upon written request, each user must 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. ~ 2701 et seq. (f) Confidential data. If a user notifies the City by a conspicuous written notation of the confidential nature of any information, 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 requests for confidential information, reports, documents, or writings, the City shall notify the user of the request in writing or by facsimile transmission. The City shall furnish the user with copies of all requests for Attorney General's opinions pertaining to the information request. The City shall request an Attorney General's Opinion before disclosing any such confidential information, reports, documents or writings, if allowed by law. (g) No other fees. The ROW fees (if applicable) 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 ROW. EXHIBIT A Page A-9 L F4-,o=~=--------==--==>r'~ ..,~ ~---- - ---- '"""ff" -,- r-.' --. Further, such fees shall constitute full compensation to the City for all Non-Certificated Telecommunications Provider's regulated facilities, 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 ROW 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 qr expenses recoverable under the Texas Public Utility Regulatory Act, or other statutes. . (h) Payment schedule. Each user shall remit the ROW fees on a quarterly basis. 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. (i) Audits. On 30 days notice to a user, the City may audit the user for a period of time to the fullest extent allowed by law. The. user shall furnish information to demonstrate its compliance with the Municipal Consent and other provisions of this chapter. G) Records. Each user shall keep complete and accurate books of accounts and records of business and operations that reflect the monthly count of all access lines, the linear feet of regulated facilities and street crossings, for a period of one year after the expiration of the term of Municipal Consent. The 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, regulated facilities, or street crossings used to deliver telecommunication services or for calculation of the payments due hereunder. The City may examine the user'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 chapter and the Municipal Consent. (k) No circumvention. A person shall not circumvent payment of any fees payable hereunder or evade payment of such fees by bartering, transfer of rights, or by any other means. Sec. 19.707. Furnishing information. Each user shall make available to the City or the City's designated agent (hereinafter "agent"), for the agent to examine, audit, review and copy, its books and records referred to above, including papers, books, accounts, documents, maps, and plans that pertain to compliance with this chapter or the Municipal Consent. They shall be made available in the City, uponthe City Manager's reasonable written request. The user shall fully cooperate in making them available and otherwise assist the agent. The agent 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. Section 19.708. Transfers. (a) In general. Neither a Municipal Consent nor any related rights or privileges nor any EXIllBIT A Page A-IO regulated facilities covered by a Municipal Consent may be sold, resold, assigned, conveyed or otherwise transferred by the user, either separately or collectively, to any other person, without the prior written approval of the City granted by ordinance or resolution. The City's approval may be withheld if unless the transferee provides adequate information to the City that it has the ability to perform and comply with the Municipal Consent and this chapter. Such approval shall not otherwise be unreasonably withheld or delayed. Should a user make such a transfer without the City's prior consent, the City may revoke the Municipal Consent for default, in which event all rights and interest of the user under the Municipal Consent and this chapter shall cease. Further, any transfer in violation of this section shall be null and void and unenforceable. (b) Change of control. Any change of control of a user shall constitute a transfer under this section that requires consent of the City. There shall be a rebuttable presumption of a change of control if there is a change of25% or greater in the ownership ofa user. ( c) Mortgages, etc. A mortgage or other pledge of assets to a bank or lending institution in a bona fide lending transaction shall not be considered a transfer. (d) Approval by inaction. Notwithstanding anything else in this section, if the City has not approved or denied a request to transfer, under this section at the next regular Council meeting held after the elapse of 40 days from the date of written notice of such request, it shall be deemed approved. Such time frame may be extended by mutual agreement of the parties. ( e) Exempt transfers. A Non-Certificated Telecommunications Provider may without City approval, (i) transfer or assign the regulated facilities under a Municipal Consent to another Non- Certificated Telecommunications Provider which has a Municipal Consent under this Ordinance; (ii) transfer or assign the Municipal Consent to an affiliate that is a Certificated Telecommunications Provider or (ill) 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 ("Assignor") from its obligations and liabilities under the Municipal Consent, such Assignor is not released from any obligations or liabilities that arise from this chapter or the Municipal Consent. The Non- Certificated Telecommunications Provider transferring or assigning the facilities or the Municipal Consent must give written notice of such to the City Manager within 14 days. Section 19.709. [Reserved] Section 19.710. RenewaL A user may request renewal of a Municipal Consent by making written application to the City Manager at least 90 days before the expiration of the consent. Section 19.711. Boundary changes. Within 30 days following the date of the passage of any action affecting the City's corporate boundaries, the City agrees to furnish written notice of the action to each user. For the purpose of ROW fees, users shall start including or excluding access lines within the affected area on the effective date designated by the Comptroller of Public Accounts for the imposition of local sales EXHIBIT A Page A-II ;::rr-,---.,----------n- -- "-,---c'-'- ,-"",~"''--'-7'-'" and use taxes, but in no case sooner than 30 days from the date the user is notified. Section 19.712. Termination. (a) In general. The City shall have the right to terminate any Municipal Consent and any related rights or privileges in the event of a material breach of the terms and conditions of the Municipal Consent or this chapter, but only after giving at least 30 days written notice to the user and the opportunity to cure the breach during that 30 day period. Upon written request and approval by the City Manager, a longer notice and cure period will be allowed, if the breach takes longer than 30 days to cure and the user acts diligently and in good faith to cure the breach. (b) Material breaches. A material breach shall not be deemed to have occurred if the violation occurs without the fault of a user as a result of circumstances beyond its control. A user is not excused from performance of any obligations by economic hardship, nor misfeasance or malfeasance of their contractors, officers or employees. ( c) Declaration. A termination may be declared only by motion, resolution or ordinance of the City Council after an appropriate public proceeding before the City Council, which shall accord the user an opportunity to be heard and to respond to allegations of breach. Notice of the proceeding shall be given to the user at least 15 days in advance. The notice shall state the grounds for termination alleged. EXIDBIT A Page A-12 F:--':'=.+.-_-_-_':""."._:-.':'C_~~:::::~__~ E~-~--_:-:_:--::_~-'--::.:'":E:::l j :1_Lli....I: -- -- ~ --~---T~---_~_".~-~--~~--