All facilities shall be constructed, installed and located in
accordance with the following terms and conditions:
(1)
A
telecommunications services provider shall install its telecommunications
facilities within an existing underground duct or conduit whenever
excess capacity exists within such utility facility, absent the submission
by the provider or an affected telecommunications carrier or provider
of satisfactory evidence to the city manager or his or her designee
that this requirement is not reasonable or feasible in any specific
instance.
(2)
A
telecommunications services provider with permission to install overhead
facilities shall install its facilities on pole attachments to existing
utility poles only, provided surplus space is available. If the installation
of a new pole or poles is necessary, the number, location and installation
of same shall be as designated by the city.
(3)
Whenever
any existing electric utilities, cable facilities or telecommunications
facilities are located underground within a public right-of-way of
the city, a telecommunications services provider with permission to
occupy the same public right-of-way must also locate its telecommunications
facilities underground, absent a compelling demonstration by the provider
or an affected telecommunications carrier that this requirement is
not reasonable or feasible in any specific instance.
(4)
Whenever
any new or existing electric utilities, cable facilities or telecommunications
facilities are located or relocated underground within a public right-of-way,
a telecommunications services provider that currently occupies the
same public right-of-way shall relocate its telecommunications facilities
underground within a reasonable period of time, which shall not be
later than the end of the franchise term unless the provider makes
a compelling demonstration that this requirement is not reasonable
or feasible in any specific instance. Absent extraordinary circumstances
or undue hardship as determined by the city manager or his or her
designee, such relocation shall be made concurrently to minimize the
disruption of the public rights-of-way.
(5)
In
determining whether any requirement under this section is unreasonable
or infeasible, the city manager or his or her designee shall consider,
among other things, whether the requirement would subject the telecommunications
services provider or other affected telecommunications carrier or
provider to an unreasonably increased risk of service interruption,
or to an unreasonably increased liability for accidents, or to an
unreasonable delay in construction or in the availability of its services,
or to any other unreasonable technical or economic burden.
(1983 Code, sec. 26.5-101; Ordinance 10222, art. 5, sec. 1, adopted 12/9/1999)
All telecommunications services providers are required to obtain
construction permits to the extent and in the manner required in division
6 of this article.
|
Editor’s note–Division 6 mentioned
in the above section was repealed by Ordinance 2007-O0122, sec. 2,
adopted 12/6/2007.
|
(1983 Code, sec. 26.5-102; Ordinance 10222, art. 5, sec. 2, adopted 12/9/1999)
No telecommunications services provider may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of city property or public rights-of-way by the city, by the general public or by other persons authorized to use or be present in or upon city property or public rights-of-way. In the event of unreasonable interference, such facilities shall be moved by the provider, temporarily or permanently, as determined by the city manager or his or her designee upon reasonable notice. If the temporary removal of a provider’s aerial facilities is necessary to permit the moving of houses or other bulky structures, the provider shall be required to temporarily remove the same upon not less than forty-eight (48) hours’ advance notice by a party permitted to move a building, house or other bulky structure pursuant to section 28.09.131 of this Code of Ordinances. The expenses of such temporary relocation or removal of aerial facilities shall be paid by the party or parties requesting and receiving the benefit from such temporary relocation or removal.
(1983 Code, sec. 26.5-103; Ordinance 10222, art. 5, sec. 3, adopted 12/9/1999)
No telecommunications services provider nor any person acting
on a provider’s behalf shall take any action or permit any action
to be done which may impair or damage any city property, public rights-of-way,
or other property located in, on or adjacent thereto.
(1983 Code, sec. 26.5-104; Ordinance 10222, art. 5, sec. 4, adopted 12/9/1999)
Unless otherwise provided in this article, no telecommunications
services provider nor any person acting on the provider’s behalf
shall commence any nonemergency work in or about city property or
public rights-of-way without the provision of advance notice to the
city.
(1983 Code, sec. 26.5-105; Ordinance 10222, art. 5, sec. 5, adopted 12/9/1999)
In the event of an unexpected repair or emergency, a telecommunications
services provider may commence such repair and emergency response
work as required under the circumstances, provided the provider shall
notify the city as promptly as possible, before such repair or emergency
work or as soon thereafter as possible if advance notice is not practicable.
(1983 Code, sec. 26.5-106; Ordinance 10222, art. 5, sec. 6, adopted 12/9/1999)
Each telecommunications services provider shall maintain its
facilities in good and safe condition and in a manner that complies
with all applicable laws.
(1983 Code, sec. 26.5-107; Ordinance 10222, art. 5, sec. 7, adopted 12/9/1999)
(a)
Within
thirty (30) days following written notice from the city, a telecommunications
services provider shall, without claim for reimbursement or damages
against the city, temporarily or permanently remove, relocate, change
or alter the position of any telecommunications facilities on city
property or within the public rights-of-way whenever the governing
body shall have determined that such removal, relocation, change or
alteration is reasonably necessary for:
(b)
In any instance in which operation of subsection (a) is deemed by a provider to impose a financial hardship on the provider, the provider shall have the right to present alternative proposals to the city, and the city shall give due consideration to any such alternative proposals.
(c)
If
the city requires a provider to adopt or conform its telecommunications
facilities to enable any other entity or person, except the city,
to use, or to use with greater convenience, public rights-of-way or
city property, the provider shall not be required to make any such
changes until such other entity or person shall reimburse or make
arrangements satisfactory to the provider to reimburse the provider
for any loss and expense caused by or arising out of such change;
provided, however, that the city shall never be liable for such reimbursement.
(d)
If,
after proper notice, the provider fails or refuses to remove or abate
the facilities in question, the city retains the rights and privilege
to remove or abate any such utility facilities, at the sole cost and
expense of the provider. In performing or permitting such work to
be done, the city shall not be liable to any provider for any damages
to any utility facilities unless directly and proximately caused by
the willful intentional or malicious act by the city, and shall not
be liable in any event for any consequential damages relating to service
interruptions.
(1983 Code, sec. 26.5-108; Ordinance 10222, art. 5, sec. 8, adopted 12/9/1999)
(a)
Within
thirty (30) days following written notice from the city, any telecommunications
services provider or other person that owns, controls or maintains
any unauthorized telecommunications facilities or related appurtenances
on city property or within the public rights-of-way shall, at its
own expense, remove such facilities or appurtenances from city property
or public rights-of-way. A telecommunications facility is unauthorized
and subject to removal in the following circumstances:
(1)
Upon expiration or termination of the telecommunications services
provider’s telecommunications franchise or commission certification,
whichever is applicable.
(2)
Upon abandonment of a facility on city property or within the public
rights-of-way of the city.
(3)
If the facility was constructed or installed without the prior grant
of a telecommunications franchise or receipt of a certificate from
the commission.
(4)
If the facility was constructed or installed without the prior issuance
of a required construction permit.
(b)
If,
after proper notice, the owner fails or refuses to remove or abate
the facilities in question, the city retains the right and privilege
to remove or abate any such utility facilities, at the sole cost and
expense of the owner. In performing or permitting such work to be
done, the city shall not be liable to any telecommunications services
provider for any damages to any utility facilities unless directly
and proximately caused by the willful intentional or malicious act
by the city, and shall not be liable in any event for any consequential
damages relating to service interruptions.
(1983 Code, sec. 26.5-109; Ordinance 10222, art. 5, sec. 9, adopted 12/9/1999)
The city retains the right and privilege to cut or move any
telecommunications facilities located on city property or within the
public rights-of-way, as the city may determine to be necessary, appropriate
or useful in response to any public health or safety emergency. The
city shall cooperate to the extent possible with the telecommunications
service provider in such instances to assure continuity of service,
and to afford the provider the opportunity to make such relocation
and/or removal itself where deemed reasonable, at the city s sole
discretion.
(1983 Code, sec. 26.5-110; Ordinance 10222, art. 5, sec. 10, adopted 12/9/1999)
Unless directly and proximately caused by the willful, intentional
or malicious acts by the city, the city shall not be liable for any
damage to or loss of any telecommunications facility on city property
or within the public rights-of-way as a result of or in connection
with any public works, public improvements, construction, excavation,
grading, filling, or work of any kind on city property or in the public
rights-of-way by or on behalf of the city, and shall not be liable
in any event for any consequential damages relating to service interruptions.
(1983 Code, sec. 26.5-111; Ordinance 10222, art. 5, sec. 11, adopted 12/9/1999)
(a)
When
a telecommunications services provider, or any person acting on its
behalf, does any work in or affecting any public rights-of-way, or
city property, it shall, at its own expense, promptly remove any obstructions
therefrom and restore such public rights-of-way or city property to
as good a condition as existed before the work was undertaken.
(b)
If
weather or other conditions do not permit the complete restoration
required by this section, the provider shall temporarily restore the
affected ways or property. Such temporary restoration shall be at
the provider’s sole expense and the provider shall promptly
undertake and complete the required permanent restoration when the
weather or other conditions no longer prevent such permanent restoration.
(c)
A
provider or other person acting in its behalf shall use suitable barricades,
flags, flagmen, lights, flares and other measures as required for
the safety of all members of the general public and to prevent injury
or damage to any person, vehicle or property by reason of such work
in or affecting such ways or property.
(1983 Code, sec. 26.5-112; Ordinance 10222, art. 5, sec. 12, adopted 12/9/1999)
(a)
Within
a reasonable time after completing any new construction of or expansion
of existing utility facilities, but in no case more than sixty (60)
days after such completion, a telecommunications services provider
shall provide the city with an accurate as-built map or maps in both
electronic and reproducible Mylar format certifying the location of
all such new or expanded utility facilities.
(b)
Each
telecommunications services provider shall maintain maps of all of
the provider’s telecommunications facilities located on city
property or within the public rights-of-way. Such maps shall be made
available for review by other providers, upon reasonable request,
to the extent such review may be necessary to determine whether the
sharing of conduit in a given location is feasible. Within five (5)
business days of a request from the city, the provider shall provide
the city with a copy of any portion of those maps showing the location
of the provider’s facilities within the public rights-of-way
or on city property in any specific geographic area designated by
the city. Such map or maps shall be provided at no cost to the city.
The provider shall also promptly locate any buried or underground
utilities at the city’s request at no cost to the city.
(1983 Code, sec. 26.5-113; Ordinance 10222, art. 5, sec. 13, adopted 12/9/1999)
(a)
Within
twenty (20) days of a written request from the city manager or his
or her representatives, each noncertificated telecommunications provider
shall furnish the city with information sufficient to demonstrate:
(1)
That the provider has complied with all requirements of this article.
(2)
That all franchise fees due the city in connection with the telecommunications
services and facilities provided by the provider have been properly
calculated and paid by the provider.
(3)
All books, records, maps and other documents maintained by the provider
with respect to its facilities on city property or within the public
rights-of-way shall be made available for inspection by the city at
reasonable times and intervals.
(b)
Each
provider shall furnish the city attorney with notices of all initial
petitions, applications, and reports submitted by the provider to
the Federal Communications Commission, the public utility commission
of Texas, the Texas Legislature or the Congress of the United States
relating to any matters affecting both the use of public rights-of-way
and telecommunications services within the city. Upon written request,
the provider shall furnish the city attorney with copies of all such
documents.
(1983 Code, sec. 26.5-112; Ordinance 10222, art. 5, sec. 12, adopted 12/9/1999)
(a)
Except as provided in subsection (c) below, each telecommunications services provider shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the provider and the city, and its elected and appointed officers, officials, agents and employees as coinsureds:
(1)
General liability insurance with limits not less than:
(2)
Automobile liability for owned, nonowned and hired vehicles with
a limit of three million dollars ($3,000,000.00) for each person and
three million dollars ($3,000,000.00) for each accident.
(3)
Worker’s compensation within statutory limits and employer’s
liability insurance with limits of not less than one million dollars
($1,000,000.00).
(4)
Comprehensive form premises-operations, explosions and collapse hazard,
underground hazard and products completed hazard with limits of not
less than three million dollars ($3,000,000.00).
(b)
The
liability insurance policies required by this section shall be maintained
by the provider throughout the term of the telecommunications franchise,
and any such other period of time during which the provider is operating
without a franchise hereunder, or is engaged in the removal of its
telecommunications facilities. Each such insurance policy shall contain
the following endorsement:
“It is hereby understood and agreed that this policy may
not be canceled nor the intention not to renew be stated until 90
days after receipt by the City, by registered mail, of a written notice
addressed to the City Manager of such intent to cancel or not to renew.”
Within sixty (60) days after receipt by the city of said notice,
and in no event later than thirty (30) days prior to said cancellation,
the provider shall obtain and furnish to the city replacement insurance
policies meeting the requirements of this section.
(c)
Unless otherwise precluded by law, a provider may satisfy one or more of the insurance requirements specified in subsection (a) of this section through self-insurance; provided, however, that no provider may self-insure without the prior approval of the city. In no event shall a self-insurance proposal be approved absent a showing to the city’s satisfaction that the provider is in a sound financial condition, and that provider maintains a dedicated reserve in an amount sufficient to ensure that provider’s outstanding potential claims do not at any time exceed fifty (50) percent of the value of the reserve.
(1983 Code, sec. 26.5-115; Ordinance 10222, art. 5, sec. 15, adopted 12/9/1999)
(a)
Each
franchise agreement shall include, to the extent permitted by law,
the noncertificated telecommunications service provider’s express
undertaking to defend, indemnify and hold the city and its officers,
employees, agents and representatives harmless from and against any
and all damages, losses and expenses, including reasonable attorney’s
fees and costs of suit or defense, arising out of, resulting from
or alleged to arise out of or result from the negligent, careless
or wrongful acts, omissions, failures to act or misconduct of the
noncertified telecommunications provider or its affiliates, officers,
employees, agents, contractors or subcontractors in the construction,
operation, maintenance, repair or removal of its telecommunications
facilities, and in providing or offering telecommunications services
over the facilities or network, whether such acts or omissions are
authorized, allowed or prohibited by this article or by a franchise
agreement made or entered into pursuant to this article.
(b)
Certificated
telecommunications service providers shall provide the city with the
indemnity provided by section 283.05, Local Government Code.
(1983 Code, sec. 26.5-116; Ordinance 10222, art. 5, sec. 16, adopted 12/9/1999)
(a)
All
telecommunications service providers are required to cooperate with
the city and with each other.
(b)
By
February 1 of each year, providers shall provide the city manager
or his or her designee with a schedule of their then-known proposed
construction activities in, around, or that may affect city property
or public rights-of-way.
(c)
Each
provider shall meet with the city manager or his or her designee,
other providers, and users of city property and public rights-of-way
as determined by the city manager or his or her designee, but in no
case less than once a calendar year or more frequently than once a
month, to schedule and coordinate construction on city property and
in public rights-of-way.
(d)
All
construction locations, activities and schedules shall be coordinated,
as ordered by the city manager or his or her designee, to minimize
public inconvenience, disruption or damages.
(1983 Code, sec. 26.5-117; Ordinance 10222, art. 5, sec. 17, adopted 12/9/1999)
(a)
A
franchise may not be transferred, assigned or disposed of by sale,
lease, merger, or consolidation, by operation of law or otherwise,
without the prior consent of the city, which consent shall not be
unreasonably withheld or delayed, as expressed by ordinance and then
only on such reasonable conditions as may be prescribed therein. Transactions
between affiliated entities are not exempt from city approval. Transfer
to a certificated telecommunications service provider shall not be
subject to approval by the city.
(b)
The
provider and the proposed assignee or transferee of the franchise
shall provide and certify the following information to the city not
less than one hundred fifty (150) days prior to the proposed date
of transfer:
(1)
Complete information setting forth the nature, terms and condition
of the proposed transfer or assignment;
(2)
All information required of a telecommunications franchise applicant
pursuant division 3 of this article with respect to the proposed transferee
or assignee;
(3)
Any other information reasonably required by the city.
(c)
No
transfer shall be approved unless the assignee or transferee has the
legal, financial and other requisite qualifications to own, hold and
operate the telecommunications facilities covered by the franchise
pursuant to this article.
(d)
Any
transfer or assignment of the franchise, or any part thereof, without
prior approval of the city under this section or pursuant to a franchise
agreement shall be void and is cause for revocation of the franchise.
(1983 Code, sec. 26.5-118; Ordinance 10222, art. 5, sec. 18, adopted 12/9/1999)
A franchise granted by the city to use or occupy city property
or public rights-of-way by a noncertificated telecommunications service
provider may be revoked for the following reasons:
(1)
Construction
on city property or in the public rights-of-way at an unauthorized
location.
(2)
Unauthorized
sale, assignment or transfer of provider’s franchise, or a substantial
interest therein.
(3)
Misrepresentation
of a material fact by a provider or any of the provider’s officers,
employees or agents in any application to the city.
(4)
Unauthorized
abandonment of telecommunications facilities on city property or in
the public rights-of-way.
(5)
Failure
to relocate or remove facilities or the failure to reimburse the city
for the involuntary relocation or removal of facilities as required
in this article.
(6)
Failure
to pay compensation, fees or costs when and as due the city.
(7)
Insolvency
or bankruptcy of the grantee.
(8)
Violation
of material provisions of this article.
(9)
Violation
of the material terms of a franchise agreement.
(1983 Code, sec. 26.5-119; Ordinance 10222, art. 5, sec. 19, adopted 12/9/1999)
In the event that the city manager believes that grounds exist
for revocation of a franchise, he or she shall give the provider written
notice of the apparent violation or noncompliance, providing a short
and concise statement of the nature and general facts of the violation
or noncompliance, and providing the provider a reasonable period of
time not exceeding thirty (30) days to furnish evidence:
(1)
That
corrective action has been taken, or is being actively and expeditiously
pursued, to remedy the violation or noncompliance.
(2)
That
rebuts the alleged violation or noncompliance.
(3)
That
it would be in the public interest to impose some penalty or sanction
less than revocation.
(1983 Code, sec. 26.5-120; Ordinance 10222, art. 5, sec. 20, adopted 12/9/1999)
In the event that a provider fails to provide evidence reasonably satisfactory to the city manager as provided in section 8.13.160 of this division, the manager shall refer the apparent violation or noncompliance to the governing body. The governing body shall provide the provider with notice and a reasonable opportunity to be heard concerning the matter.
(1983 Code, sec. 26.5-121; Ordinance 10222, art. 5, sec. 21, adopted 12/9/1999)
If persuaded that the provider has violated or failed to comply
with material provisions of this article, or of a franchise agreement,
the governing body shall determine whether to revoke the franchise,
or to establish some lesser sanction and cure, considering the nature,
circumstances, extent and gravity of the violation as reflected by
one or more of the following factors:
(1)
Whether
the misconduct was egregious.
(2)
Whether
substantial harm resulted.
(3)
Whether
the violation was intentional.
(4)
Whether
the provider has a history of prior violations of the same or other
requirements.
(5)
The
provider’s history of overall compliance.
(6)
Whether
the provider voluntarily disclosed, admitted, or cured the violation.
(1983 Code, sec. 26.5-122; Ordinance 10222, art. 5, sec. 22, adopted 12/9/1999)
