The purpose of this chapter is to:
(a)
Assist
in the management of the public rights-of-way in order to minimize
the congestion, inconvenience, visual impact and other adverse effects,
and the costs to the citizens resulting from the placement of telecommunications
facilities within the public rights-of-way;
(b)
Govern
the provider’s use and occupancy of the public rights-of-way;
(c)
Compensate
[the] city for the private, commercial use and occupancy of the public
rights-of-way by telecommunications providers in a non-discriminatory
and competitively neutral manner;
(d)
Assist
the city in its efforts to protect the public health, safety and welfare;
(e)
Facilitate
competition among telecommunications service providers and encourage
the universal availability of advanced telecommunications services
to all residents and businesses of the city;
(f)
Conserve
the limited physical capacity of the public rights-of-way held in
public trust by the city.
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This chapter may be referred to as the “telecommunications
ordinance.”
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(Ordinance 1366, § 1(Exh. A), 6-22-99)
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 provider for the operation of access lines in a telecommunications system, consisting of both telecommunications facilities and transmission media. The terms of this chapter 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 80-23 herein.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
This
chapter applies to all telecommunications service providers under
Title 47, Chapter 5, Subchapter II of the United States Code (47 U.S.C. §
201 et seq.) (“Title 47”) that place transmission media
in, on or over public rights-of-way, excluding services provided solely
by means of a wireless transmission. No municipal consent granted
under this chapter authorizes the provision of any services not covered
by Title 47. 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.)] 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 other provisions of the City Code. The granting of
a municipal consent under this chapter does not grant attachment rights
or authorize the use of city utility infrastructure.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
In this chapter:
means a unit of measurement representing: (1) each switched
transmission path of the Transmission Media within the public rights-of-way
extended to the end-user customer’s network interface within
the city that allows delivery of telecommunications service; (2) each
separate transmission path of the transmission media within the city’s
public rights-of-way that terminates at an end user customer’s
network interface of each loop provided as an unbundled network element
to a person pursuant to an agreement under Section 252 of the Federal
Telecommunications Act of 1996 (47 U.S.C. § 252); or (3) each
termination point of a non-switched telephone or other circuit consisting
of transmission media connecting specific locations identified by,
and provided to, the end-user for the delivery of non-switched telecommunications
service within the city.
means the amount in section 80-11 to be applied to each access line on a monthly basis for the calculation of the total amount to be paid to the city by the provider and/or any person using the facilities of provider for the creation of telecommunications service.
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
percent or more of the affiliate’s stock or assets.
means any entity that has been granted or applied for a certificate under Chapter 54 of Texas Utilities Code or other successor-authorizing certificate to provide local exchange telephone service.
means the City of Euless, Texas. As used throughout, the
term “city” also includes the designated agent of the
city.
means the city manager of the city or the city manager’s
designee.
means all ordinances, laws, rules, resolutions, and regulations
of the city that are not inconsistent with this chapter and that are
now in force or may hereafter be passed and adopted.
means any and all of the provider’s duct spaces, manholes,
poles, conduits, underground and overhead passageways and other equipment,
structures, plant and appurtenances and all associated transmission
media.
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 the payment of compensation.
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.
means a person, including any certified telecommunications
utility, that delivers telecommunications service within the city
to person(s) by way of a network, and that places facilities in, on
or over the public rights-of-way. A provider does not include persons
who are authorized by the city to occupy the public rights-of-way
in specifically approved routes within the city, unless they also
have a municipal consent under this chapter. To the extent allowed
by law, provider also means a person that does not deliver telecommunications
service within the city, but who uses, constructs or maintains facilities
or transmission media within the public rights-of-way.
means all present and future public streets, highways, lanes,
paths, alleys, sidewalks, boulevards, drives, tunnels, easements or
similar property in the city limits in which the city holds a property
interest or exercises rights of management or control.
means all facilities placed in the public rights-of-way and
used to provide telecommunications service to the public.
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 a telecommunications network.
Telecommunications service include ancillary or adjunct switching
services and signal conversions rendered as a function of underlying
transmission services, but excludes long distance transmissions (inter-LATA
[Local Access Transport Area] and intra-LATA toll transmissions).
Telecommunications service includes all communications services capable
of being provided over a telephone system and certificated to telecommunications
providers under the Texas Utilities Code, Title 2, Public Utility
Regulatory Act, as amended, and Title II of the Communications Act
of 1934, as amended, expressly excluding cable services or open video
systems as defined in Title VI of the Communications Act of 1934,
as amended. Also excluded are “wireless services” as defined
by law.
means any and all of the provider’s cables, fibers,
wires or other physical devices used to transmit and/or receive communication
signals, whether analog, digital or of other characteristic, and whether
for voice, data or other purposes.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
Prior
to placing, reconstructing, or altering facilities in, on or over
the public rights-of-way, a provider must 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.
(c)
Any provider
with a current, unexpired consent, franchise, agreement or other authorization
from the city (“grant”) to use the public rights-of-way
that is in effect at the time this telecommunications chapter 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 provider and a municipal consent under this chapter
is granted and in effect.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
A person
must submit an application to the city manager to initiate the process
to obtain a municipal consent.
(b)
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 network, to the extent known
at the time of the application;
(2)
A
general description of the services to be provided initially;
(3)
With
respect to post-application construction a route map of the applicant’s
proposed network, if any; and
(4)
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 networks, except as may be required in section 80-17, including:
a.
The
location and route required for applicants proposed telecommunications
network.
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.
c.
The
specific trees, structures, improvements, facilities and obstructions,
if any, that the applicant proposes to temporarily or permanently
remove or relocate.
(5)
While
not a requirement for the issuance of a municipal consent, if applicable,
the applicant shall provide:
a.
Evidence
that the applicant holds or has applied for a Public Utility Commission
of Texas Certificate and information to establish that the applicant
will obtain all other governmental approvals and permits prior to
construction.
b.
Certification
or other documentation to evidence the Public Utility Commission of
Texas or any other required governmental approval showing compliance
with E911 requirements of Chapters 771 and 772 of the Texas Health
and Safety Code on Emergency Communication, and the Texas Public Utility
Council Substantive Rules on interconnection, particularly Section
80.97(a), (d) and (e), as amended.
(6)
Such
other and further information as may be reasonably requested by the
city manager as it relates to the use of the public rights-of-way.
(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 80-12.
(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 90th day after a completed
application has been filed. Upon mutual written agreement between
the city and the provider, action on an application may be postponed
for one or more periods not exceeding 30 days each.
(e)
Except
for delay caused by the applicant, the city council must take an initial
action on the city manager’s recommendation within 45 days after
receipt by the council of the city manager’s recommendation
or the city manager’s recommendation to grant an application
shall be deemed approved. No city council action is required to confirm
a denial recommendation, except acknowledgment of receipt of the recommendation.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
If the
city manager finds that the application meets the requirements 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.
(b)
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 provider substantially comply with this chapter;
(3)
A
requirement that the provider’s municipal consent is subject
to termination by the city council, after notice and hearing, for
the provider’s failure to comply with this chapter or on a showing
that the provider has breached the terms of the municipal consent;
(c)
Review
and approval by the city does not constitute a guarantee of sufficiency
of the design of the telecommunications network. The applicant retains
full responsibility for the adequacy of the design of the telecommunications
network.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
A person whose application for a municipal consent is denied, or whose application is not considered by the city council within a reasonable time after the city manager submits a recommendation under section 80-7 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 60 days after the petition is filed with the city secretary.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
The city
manager shall administer this chapter and enforce compliance with
a municipal consent conveyed under this chapter.
(b)
A provider
shall report information related to the use of the public rights-of-way
that the city manager requires in the form and manner prescribed by
the city manager.
(c)
The city
manager shall report to the city council upon the determination that
a provider has failed to comply with this chapter.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(Ordinance 1366, § 1(Exh. A), 6-22-99)
A provider shall compensate the city by payment of the fees
as provided below:
(a)
Access
line fee calculation.
To compensate the city for the use of the rights-of-way, [the] provider whose telecommunications network is used to serve persons in the city shall pay the city a monthly fee to be calculated as provided below for each access line owned or used by the provider, as calculated as of month-end, that is activated for use by an end user customer of the provider or of another person as a certificated telecommunications utility, by lease or otherwise, subject to subsection (f) below or of any other person;
(1)
Access
line fee calculation amount:
a.
Following the effective date of the municipal consent, a provider shall submit to the city manager on a quarterly basis, a certified statement together with the access line fee payment under section 80-12, indicating the number of access lines used to provide telecommunications service at month end, for each month of the quarter and for each customer class identified herein. The statement shall be provided on a form prescribed by the city manager.
b.
For
each month of the quarter following the effective date of the municipal
consent, a provider shall pay an access line fee, which is based upon
its number of access lines calculated in accordance with maximum rates
set by the Public Utility Commission of Texas.
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(To the extent allowed by law, and not at the direction
or request of the city, pursuant to Texas Utilities Code Section 54.206,
a provider has the discretion to collect the access line fee imposed
by the city pursuant to this chapter through a pro rata charge to
the customers in the boundaries of the city, including from any other
persons who are leasing, reselling, refunding or otherwise using the
provider’s access lines to provide telecommunications service.)
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(For purposes of this section only, lines terminating
at customers with “Lifeline,” “Tel-Assistance,”
or other service that is required to be similarly discounted pursuant
to state or federal law or regulation for the purpose of advancing
universal service to the economically disadvantaged shall not be included
in the lines upon which the fee is calculated, but provider shall
provide information on the number of such lines upon request by the
city.)
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(2)
Number of access lines.
Subject to city’s agreement
not to disclose this information unless required by law, [the] provider
agrees to provide annually 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 [the] provider
that are serving premises within the city. The city agrees that the
report shall be used solely for the purposes of verifying the number
of [the] provider’s access lines serving premises within the
city. Upon written request, [the] 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. § 2701 et seq.
(b)
Minimum
annual fee.
Notwithstanding any other provision in this
chapter, for all new installations of facilities placed in, on or
under the public rights-of-way from the effective date of the municipal
consent, and for each calendar year period thereafter, the provider
shall pay the city a minimum annual fee of $250.00 (“minimum
fee”), in the event the annual access line fee does not exceed
$250.00, with a credit against the minimum fee from any access line
fee paid to the city during the previous 12 months.
Each municipal consent shall provide that the minimum fee of
(b) above may be adjusted once every three years by the city, but
such adjustment shall not exceed $100.00 in any one three-year period.
(c)
Confidential
records.
If the 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 (b) 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 requests for the provider’s
confidential information, reports, documents, or writings, the city
shall notify the provider of the request in writing by facsimile transmission.
The city shall furnish the provider with copies of all requests for
attorney general opinions pertaining to the 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
provider with copies of attorney general opinion requests as soon
as practicable that it may pertain to the 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 provider. Further, such access line fee shall
constitute full compensation to the city for all provider’s
facilities located within the public rights-of-way, including interoffice-transport
and other transmission media 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, [the]
provider shall not be obligated to pay the city for any access lines
or private line termination points the revenues for which remain uncollectible.
(f)
Payments
by or use of the network by other telecommunications carriers and
providers.
(1)
Direct payment-facilities provided to other telecommunications service providers: To the extent allowed by applicable state and federal law, any telecommunications service providers who purchase unbundled network elements or other facilities or services for the purpose of rebundling those facilities and/or services to create telecommunications service for sale to persons within the city (“rebundler”), must pay to the city the access line fee that is calculated as of month-end by applying the appropriate access line fee, as specified in section 80-11 above, to each access line created by rebundling telecommunications service or facilities. Direct payment further ensures that the access line fee imposed herein can be applied on a non-discriminatory basis to all telecommunications service providers that sell telecommunications service within the city. Other provisions of this chapter notwithstanding, the provider shall not include in its monthly count of access lines any facilities or services provided to other telecommunications service providers for rebundling into telecommunications service, if the telecommunications service provider who is rebundling those facilities for resale has provided a signed statement to the provider that the telecommunications service provider is paying the access line fees applicable to those rebundled services directly to the city. If provider provides a copy of the signed statement to the city from the rebundler which is acceptable to the city, then provider is absolved of all responsibility for the access line fees payable on the services, unbundled network facilities, and other facilities rebundled for the creation of telecommunications service for sale within the city by each such rebundler.
(2)
Indirect
payments - public rights-of-way fee application to use of network
by others: With respect to any person leasing, reselling, or otherwise
using a provider’s access lines, if a provider believes it does
not have sufficient information to determine the appropriate rate
to apply, then the higher access line fee may be applied until such
time as the person using the access lines provides to the provider
sufficient written information to determine the correct access line
fee. If a person provides sufficient written information for the application
of the access line fee, [the] provider may, at its discretion and
not at the city’s request, bill the person on the basis of the
information provided. [The] provider shall provide to the city any
information regarding the locations to which it is providing service
or facilities for use by another person for the provision of telecommunications
service to end-user customers, so long as city first obtains written
permission of such other person for [the] provider to provide the
information to the city. Any other provision of this chapter notwithstanding,
however, a provider shall not be liable for underpayment of access
line fees resulting from the provider’s reliance upon the written
information provided by any person who uses provider’s services
or facilities for the provision of telecommunications service to end-user
customers.
(Ordinance 1366, § 1(Exh. A), 6-22-99; Ordinance 1439, § 1, 6-27-00; Ordinance 1486, § 1, 6-26-01; Ordinance 1528, § 1, 4-9-02; Ordinance 1583, § 1, 3-25-03)
(a)
Access line fee. A provider shall remit the access line fee on a quarterly basis together with the certified statement required in section 80-11(a)(1)a. 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.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
On 30
days’ notice to a provider the city may audit a provider for
a period of time to the fullest extent allowed by law. The provider
shall furnish information to demonstrate its compliance with the municipal
consent and/or other provisions of this chapter.
(b)
A provider
shall keep complete and accurate books of accounts and records of
business and operations that cumulatively reflect the monthly count
of all access lines for a period of seven years. 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 used to deliver telecommunication
services or for calculation of the payments due hereunder. The city
may examine the 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., to the
extent such records reasonably relate to providing information to
verify compliance with this chapter and the municipal consent.
(c)
A 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
written request, its books and records referred to above, including
papers, books, accounts, documents, maps, plans and other provider
records that pertain to municipal consent conditions and requirements
obtained under this chapter. A 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.
(d)
The
city manager may, at any time, make inquiries pertaining to [the]
providers’ performance of the terms and conditions of a municipal
consent conveyed under this chapter. 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, 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 providers, to the FCC and/or to the PUC or their successor
agencies, relating to any matters affecting the physical use of city
public rights-of-way.
(f)
The
provisions of this section shall be continuing and shall survive the
termination of a municipal consent granted under this chapter and
shall extend beyond the term of the municipal consent granted to the
provider and the city shall have all the rights described in this
section for so long as provider is providing any telecommunications
service within the city.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
No municipal
consent nor any rights or privileges that a provider has under a municipal
consent, or the facilities held by a 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 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. Should a provider sell, assign,
transfer, convey or otherwise dispose of any of its rights or interests
under its municipal consent, including such provider’s telecommunications
network, or attempt to do so, without the city’s prior consent,
the city may revoke the provider’s municipal consent for default,
in which event all rights and interest of the provider under the municipal
consent shall cease.
(b)
Any transfer in violation of this section shall be null and void and unenforceable. Any change of control of a provider shall constitute a transfer under this section. However, such a change in control 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 80-14. If the provider does not initiate compliance with section 80-14 by a request for municipal consent within 30 days after the above notice has been given by the city, the municipal consent shall be null and unenforceable as to the transferee.
(c)
There
shall be a rebuttable presumption of a change of control of a provider
upon a change of 15 percent or greater in the ownership of such provider.
Such a change in control shall be deemed a transfer, which 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)
Every municipal consent granted under this section 80-14 shall specify that any transfer or other disposition of rights which has the effect of circumventing payment of required access line fees or minimum fees and/or evasion of payment of such fees by failure to accurately count or report the number of access lines by a provider is prohibited.
(f)
Notwithstanding anything else in this section 80-14, if the city has not approved or denied a request to transfer under this section within 120 days of written notice of such request from the provider to the city, it shall be deemed approved. Such time frame may be extended by mutual agreement of the parties.
(g)
Notwithstanding any other provision in this section 80-14, a provider may transfer, without city approval, the facilities in the public rights-of-way under a municipal consent to another provider who has a municipal consent under this chapter. The provider transferring the facilities remains subject to all applicable obligations and provisions of the municipal consent unless the provider to which the facilities are transferred is also subject to the same, as applicable, obligations and provisions. The provider transferring the facilities must give written notice of the transfer to the city manager.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
A provider
shall notify the city manager as is provided in the consent agreement.
(b)
A provider shall give written notice to the city not later than 15 days before a transfer or change in operations that may affect the applicability of sections 80-18 [Conditions of Public Rights-of-Way Occupancy], 80-19 [Bond Requirements], 80-20 [Insurance Requirements], 80-21 [Indemnity], and 80-22 [Renewal of Municipal Consent], to the provider.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
A person may not circumvent payment of access line fees or evade payment of such fees by bartering, transfer of rights, or by any other means that result in undercounting a provider’s number of lines. Capacity or services may be bartered if the imputed lines are reported in accordance with section 80-11.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
A provider
is subject to the reasonable regulation of the city to manage its
public rights-of-way pursuant to the city’s rights as a custodian
of public property under state and federal laws. A provider is subject
to city ordinances and requirements and federal and state laws and
regulations in connection with the construction, expansion, reconstruction,
maintenance or repair of facilities in the public rights-of-way.
(b)
At the
city’s request, a provider shall furnish the city accurate and
complete information relating to the construction, reconstruction,
removal, maintenance, operation and repair of facilities performed
by the provider in the public rights-of-way.
(c)
The
construction, expansion, reconstruction, excavation, use, maintenance
and operation of a provider’s facilities within the public rights-of-way
are subject to applicable city requirements.
(1)
A
provider may be required to place certain facilities within the public
rights-of-way underground according to applicable city requirements
absent a compelling demonstration by the provider that, in any specific
instance, this requirement is not reasonable or feasible nor is it
equally applicable to other similar users of the public rights-of-way.
(2)
A
provider shall perform operations, excavations and other construction
in the public rights-of-way in accordance with all applicable city
requirements, including the obligation to use trenchless technology
whenever commercially economical and practical and consistent with
obligations on other similar users of the public rights-of-way. The
city shall waive the requirement of trenchless technology if it determines
that the field conditions warrant the waiver, based upon information
provided to the city by the provider. All excavations and other construction
in the public rights-of-way shall be conducted so as to minimize interference
with the use of public and private property. A provider shall follow
all reasonable construction directions given by the city in order
to minimize any such interference.
(3)
A provider must obtain a permit, as reasonably required by applicable city codes, prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the provider’s facilities. Once a permit is issued, [the] provider shall give to the city a minimum of 48 hours notice (which could be at the time of the issuance of the permit) prior to undertaking any of the above listed activities on its network in, on or under the public rights-of-way. The failure of the provider to request and obtain a permit from the city prior to performing any of the above listed activities in, on or over any public right-of-way, except in an emergency as provided for in subsection (10) below, will subject the provider to a stop-work order from the city and enforcement action pursuant to the city’s Code of Ordinances. If the provider fails to act upon any permit within 90 calendar days of issuance, the permit shall become invalid, and the provider will be required to obtain another permit.
(4)
When
a provider completes construction, expansion, reconstruction, removal,
excavation or other work, the provider shall promptly restore the
rights-of-way in accordance with applicable city requirements. A provider
shall replace and properly relay and repair the surface, base, irrigation
system and landscape treatment of any public rights-of-way that may
be excavated or damaged by reason of the erection, construction, maintenance,
or repair of the provider’s facilities within thirty (30) calendar
days after completion of the work in accordance with existing standards
of the city in effect at the time of the work.
(5)
Upon
failure of a provider to perform any such repair or replacement work,
and five days after written notice has been given by the city to the
provider, the city may repair such portion of the public rights-of-way
as may have been disturbed by the provider, its contractors or agents.
Upon receipt of an invoice from the city, the provider will reimburse
the city for the costs so incurred within 30 calendar days from the
date of the city invoice.
(6)
Should
the city reasonably determine, within two years from the date of the
completion of the repair work, that the surface, base, irrigation
system or landscape treatment requires additional restoration work
to meet existing standards of the city, a provider shall perform such
additional restoration work to the satisfaction of the city, subject
to all city remedies as provided herein.
(7)
Notwithstanding
the foregoing, if the city determines that the failure of a provider
to properly repair or restore the public rights-of-way constitutes
a safety hazard to the public, the city may undertake emergency repairs
and restoration efforts. A provider shall promptly reimburse the city
for all costs incurred by the city within 30 calendar days from the
date of the city invoice.
(8)
A provider shall furnish the city with construction plans and maps showing the location and proposed routing of new construction or reconstruction at least 15 days [subject to subsection (d)], before beginning construction or reconstruction that involves an alteration to the surface or subsurface of the public rights-of-way. A provider may not begin construction until the location of new facilities and proposed routing of the new construction or reconstruction and all required plans and drawings have been approved in writing by the city, which approval will not be unreasonably withheld, taking due consideration of the surrounding area and alternative locations for the facilities and routing.
(9)
If
the city manager declares an emergency with regard to the health and
safety of the citizens and requests by written notice the removal
or abatement of facilities, a provider shall remove or abate the provider’s
facilities by the deadline provided in the city manager’s request.
The provider and the city shall cooperate to the extent possible to
assure continuity of service. If the provider, after notice, fails
or refuses to act, the city may remove or abate the facility, at the
sole cost and expense of the provider, without paying compensation
to the provider and without the city incurring liability for damages.
(10)
Except in the case of customer service interruptions and imminent
harm to property or person (“emergency conditions”), a
provider may not excavate the pavement of a street or public rights-of-way
without first complying with city requirements. The city manager or
designee shall be notified immediately regarding work performed under
such emergency conditions, and the provider shall comply with the
requirements of city standards for the restoration of the public rights-of-way.
(11)
Within 60 days of completion of each new permitted section of a provider’s
facilities, the provider shall supply the city with a complete set
of “as built” drawings for the segment in a format used
in the ordinary course of the provider’s business and as reasonably
prescribed by the city, and as allowed by law.
(12)
The city may require reasonable bonding requirements of a provider,
as are required of other entities that place facilities in the public
rights-of-way.
(d)
In determining
whether any requirement under this section is unreasonable or unfeasible,
the city manager or his/her designee shall consider, among other things,
whether the requirement would subject the provider or providers to
an unreasonable increase in risk of service interruption, or to an
unreasonable increase in liability for accidents, or to an unreasonable
delay in construction or in availability of its services, or to any
other unreasonable technical or economic burden.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
In the
exercise of governmental functions, the city has first priority over
all other uses of the public rights-of-way. The city reserves the
right to lay sewer, gas, water, and other pipe lines or cables and
conduits, and to do underground and overhead work, and attachments,
restructuring or changes in aerial facilities in, across, along, over
or under a public street, alley or public rights-of-way occupied by
a provider, and to change the curb, sidewalks or the grade of streets.
(b)
The
city shall assign the location in or over the public rights-of-way
among competing users of the public rights-of-way with due consideration
to the public health and safety considerations of each user type,
and to the extent there is limited space available for additional
users, may limit new users, as allowed under state or federal law.
(c)
If,
during the term of a municipal consent, the city authorizes abutting
landowners to occupy space under the surface of any public street,
alley, or public rights-of-way, the grant to an abutting landowner
shall be subject to the rights of the provider. If the city closes
or abandons a public right-of-way that contains a portion of a provider’s
facilities, the city shall close or abandon such public right-of-way
subject to the rights conveyed in the municipal consent.
(d)
If the
city gives written notice, a provider shall, at its own expense, temporarily
or permanently, remove, relocate, change or alter the position of
provider’s facilities that are in the public rights-of-way within
120 days, except in circumstances that require additional time as
reasonably determined by the city based upon information provided
by the provider. For projects expected to take longer than 120 days
to remove, change or relocate, the city will confer with provider
before determining the alterations to be required and the timing thereof.
The city shall give notice whenever the city has determined that removal,
relocation, change or alteration is reasonably necessary for the construction,
operation, repair, maintenance or installation of a city or other
governmental public improvement in the public rights-of-way. This
section shall not be construed to prevent a provider’s recovery
of the cost of relocation or removal from private third parties who
initiate the request for relocation or removal, nor shall it be required
if improvements are solely for beautification purposes without prior
joint deliberation and agreement with provider.
If the provider fails to relocate facilities in the time allowed
by the city in this section, the provider may be subject to liability
to the city for such delay and as set forth in the city codes or ordinances,
now or hereafter enacted.
Notwithstanding anything in this subsection (d), the city manager and a provider may agree in writing to different time frames than those provided above if circumstances reasonably warrant such a change.
(e)
During
the term of its municipal consent, a provider may trim trees in or
over the rights-of-way for the safe and reliable operation, use and
maintenance of its network. All tree trimming shall be performed in
accordance with standards promulgated by the city. Should the provider,
its contractor or agent, fail to remove such trimmings within 24 hours,
the city may remove the trimmings or have them removed, and upon receipt
of a bill from the city, the provider shall promptly reimburse the
city for all costs incurred within 30 working days.
(f)
Providers
shall temporarily remove, raise or lower its aerial facilities to
permit the moving of houses or other bulky structures, if the city
gives written notice of no less than 48 hours. The expense of these
temporary rearrangements shall be paid by the party or parties requesting
and benefiting from the temporary rearrangements. [The] provider may
require prepayment or prior posting of a bond from the party requesting
temporary move.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
[The]
provider shall obtain and maintain, at its sole cost and expense,
and file with the city secretary, a corporate surety bond in the amount
of $100,000.00 both to guarantee timely construction and faithful
adherence to all requirements of the chapter. The bond amount may
be reduced to $50,000.00 after a period of two years provided [the]
provider has complied with all terms and conditions herein. The bond
must be presented to the city at the time of filing the acceptance
of a municipal consent.
(b)
The
bond shall contain the following endorsement: “It is hereby
understood and agreed that this bond may not be canceled by the surety
nor any intention not to renew be exercised by the surety until 30
days after receipt by the city of such written notice of such intent.”
(c)
The
bond shall provide, but not be limited to, the following condition:
there shall be recoverable by the city, jointly and severally from
the principal and the surety, any and all damages, loss or costs suffered
by the city resulting from the failure of the provider to satisfactorily
construct facilities and adherence to all the requirements of this
chapter.
(d)
The
rights reserved to the city with respect to the bond are in addition
to all other rights of the city, whether reserved by this chapter,
or authorized by law; and no action, proceeding or exercise of a right
with respect to such bond shall affect any other rights the city may
have.
(e)
The
city manager or his designee may waive or reduce the above required
bonding requirements, taking into consideration both that the provider
has furnished the city with reasonable documentation to evidence adequate
financial resources substantially greater than the bonding requirements,
and has demonstrated in prior right-of-way construction activity,
prompt resolution of any claims and substantial compliance with all
required applicable building codes and ordinances.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
A provider
shall obtain and maintain insurance in the following amounts with
an insurance company licensed to do business in the State of Texas
acceptable to the city throughout the term of a municipal consent
conveyed under this chapter:
|
Type of Insurance
|
Limit
(in $ millions)
| |
|---|---|---|
|
General liability (including contractual liability) written
on an occurrence basis
|
General aggregate
|
2
|
|
Prod./comp. op. agg.
|
2
| |
|
Personal & adv. injury
|
1
| |
|
1
| ||
|
Each occurrence
|
1
| |
|
Automobile liability, including any auto, hired autos, and non-owned
autos
|
Combined single limit
|
1
|
|
Escess liability, umbrella form
|
Each occurrence
|
2
|
|
Aggregate
|
2
| |
|
Worker's compensation and employer's liability
|
Each accident
|
.5
|
|
Disease-Policy limit
|
.5
| |
|
Disease-Each employee
|
.5
| |
A provider shall furnish the city with proof of insurance
at the time of filing the acceptance of a municipal consent. The city
reserves the right to review the insurance requirements during the
effective period of a municipal consent, and to reasonably adjust
insurance coverage and limits when the city manager determines that
changes in statutory law, court decisions, or the claims history of
the industry or the provider require adjustment of the coverage. For
purposes of this section, the city will accept certificates of self-insurance
issued by the State of Texas or letters written by the provider in
those instances where the state does not issue such letters, which
provide the same coverage as required herein. However, for the city
to accept such letters the provider must demonstrate by written information
that it has adequate financial resources to be a self-insured entity
as reasonably determined by the city, based on financial information
requested by and furnished to the city.
(b)
The
provider shall furnish, at no cost to the city, copies of certificates
of insurance evidencing the coverage required by this section to the
city. The city may request the deletion, revision or modification
of particular policy terms, conditions, limitations or exclusions,
unless the policy provisions are established by a law or regulation
binding the city, the provider, or the underwriter. If the city requests
a deletion, revision or modification, a provider shall exercise reasonable
efforts to pay for and to accomplish the change.
(c)
An insurance
certificate shall contain the following required provisions:
(1)
Name
the city and its officers, employees, board members and elected representatives
as additional insureds for all applicable coverage;
(2)
Provide
for 30 days notice to the city for cancellation, non-renewal, or material
change;
(3)
Provide
that notice of claims shall be provided to the city manager by certified
mail; and
(4)
Provide
that the terms of the municipal consent which impose obligations on
the provider concerning liability, duty, and standard of care, including
the indemnity section, are included in the policy and that the risks
are insured within the policy terms and conditions.
(d)
[The]
provider shall file and maintain proof of insurance with the city
manager during the term of a municipal consent or an extension or
renewal. An insurance certificate obtained in compliance with this
section is subject to city approval. The city may require the certificate
to be changed to reflect changing liability limits. A provider shall
immediately advise the city attorney of actual or potential litigation
that may develop may affect an existing carrier’s obligation
to defend and indemnify.
(e)
An insurer
has no right of recovery against the city. The required insurance
policies shall protect the provider and the city. The insurance shall
be primary coverage for losses covered by the policies.
(f)
The
policy clause “Other Insurance” shall not apply to the
city if the city is an insured under the policy.
(g)
The
provider shall pay premiums and assessments. A company, which issues
an insurance policy, has no recourse against the city for payment
of a premium or assessment. Insurance policies obtained by a provider
must provide that the issuing company waives all right of recovery
by way of subrogation against the city in connection with damage covered
by the policy.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
Each
municipal consent granted under this telecommunications chapter shall
contain provisions whereby the provider agrees to promptly defend,
indemnify and hold the city harmless from and against all damages,
costs, losses or expenses (i) for the repair, replacement, or restoration
of city’s property, equipment, materials, structures and facilities
which are damaged, destroyed or found to be defective solely as a
result of the provider’s acts or omissions, (ii) from and against
any and all claims, demands, suits, causes of action, and judgments
for (a) damage to or loss of the property of any person (including,
but not limited to the provider, its agents, officers, employees and
subcontractors, city’s agents, officers and employees, and third
parties); and/or (b) death, bodily injury, illness, disease, loss
of services, or loss of income or wages to any person (including,
but not limited to the agents, officers and employees of the provider,
provider’s subcontractors and city, and third parties), arising
out of, incident to, concerning or resulting from the negligent or
willful act or omissions of the provider, its agents, employees, and/or
subcontractors, in the performance of activities pursuant to such
municipal consent.
(b)
No municipal
consent indemnity provision shall apply to any liability resulting
from the negligence of the city, its officers, employees, agents,
contractors, or subcontractors.
(c)
The
provisions of the required indemnity provision set forth in an individual
municipal consent shall provide that:
(1)
It
is solely for the benefit of the parties to the municipal consent
and is not intended to create or grant any rights, contractual or
otherwise, to any other person or entity;
(2)
To
the extent permitted by law, any payments made to, or on behalf of
the city under the provisions of this section are subject to the rights
granted to providers under Sections 54.204-54.206 of the Texas Utilities
Code; and
(3)
Subject
to the continued applicability of the provisions of Sections 54.204-54.206
of the Texas Utilities Code, as set forth in (2) above, the provisions
of the indemnity shall survive the expiration of the municipal consent.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
A 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.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
Within 30 days following the date of the passage of any action
affecting the annexation of any property to or the disannexation of
any property from the city’s corporate boundaries, the city
agrees to furnish 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 chapter, a provider shall start including or excluding
access lines within the affected area in the 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 30 days from the date the
provider is notified by the city of the annexation or disannexation.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
The provisions of this chapter are severable. However, in the
event this chapter or any tariff that authorizes the provider to recover
the fee(s) provided for this chapter or any procedure provided in
this chapter or any compensation due the city under this chapter 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 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 chapter as long as the agreed-to compensation is recoverable
by the provider in a manner permitted by law for the unexpired portion
of the term of this chapter.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
This chapter shall be construed in accordance with the City Code(s) in effect on the date of passage of this chapter 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 sections 80-17 and 80-18 or as otherwise provided by law. Municipal consents entered into pursuant to this chapter are performable in Tarrant County, Texas.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
The
city shall reserve the right to terminate any municipal consent and
any rights or privileges conveyed under this chapter in the event
of a material breach of the terms and conditions of the municipal
consent or of this chapter, subject to a 30-day written notice and
the opportunity to cure the breach during that 30-day period.
(b)
Material breaches of a municipal consent specifically include, but are not limited to, continuing violations of sections 80-11 [Compensation to City], 80-17 [Construction Obligations] and/or 80-18 [Conditions of Public Rights-of-Way Occupancy], and the furnishing of service of any kind that requires municipal authorization but that is not authorized by section 80-3(a).
(c)
A material
breach shall not be deemed to have occurred if the violation occurs
without the fault of a provider or occurs as a result of circumstances
beyond its control. Providers shall not be excused from performance
of any of their obligations under this chapter 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 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 provider
at least 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.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
(a)
Any
person seeking to place facilities on, in or over the public rights-of-way,
city property, city structures, or utility infrastructure shall first
file an application for a municipal consent with the city and shall
abide by the terms and provisions of this chapter pertaining to use
of the public rights-of-way and pay the fees specified herein.
(b)
The
city may institute all appropriate legal action to prohibit any person
from knowingly using the public rights-of-way unless the city has
consented to such use 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.
(Ordinance 1366, § 1(Exh. A), 6-22-99)
