For purposes of this article, the following terms, phrases,
words, and their derivations shall have the meanings set forth in
this section, unless the context clearly indicates that another meaning
is intended. When not inconsistent with the context, words used in
the present tense include the future tense, words used in the plural
number include the singular number, and words used in the singular
number include the plural number. Words not defined shall be given
their common and ordinary meaning.
(1)
Affiliated person
means each parent, subsidiary,
or sister entity, as well as each general and limited partner or joint
venturer, of the company, and any other person or entity related to
the company by common ownership, common management or other common
control.
(2)
Cable communications services
means any facility
operating by means of coaxial cable, optical fiber wire, or other
transmission lines or forms of transmission, and associated equipment
and devices, the primary function of which is to receive, through
any means, including, without limitation, coaxial cable, optical fiber,
or satellite or microwave transmission, and to distribute the signals
of one or more broadcast television or radio stations and of any other
sources or video, audio, voice or data signals; and may also be one
which distributes to, from or among subscribers or other persons such
other video, audio, voice, or data signals as may originate within
the City or elsewhere. Cable communications services shall include,
without limitation, “cable system” as defined in section
602(6) of the Cable Act of 1984 and any system which provides any
“cable service” as defined in section 602(5) of the Cable
Act of 1984.
(3)
Company
means any person using the streets
in connection with the operation of a system within the City.
(4)
Customer
means any person lawfully receiving
any service provided by the company by means of, through or in connection
with the system whether or not a fee is paid for such service.
(5)
Electric services
means the transmission, distribution,
conveyance, routing, or reception of electric power or energy utilizing
wires, cable, transformers, capacitors, or any other method now in
existence or hereafter devised.
(6)
FCC
means the Federal Communications Commission,
its designee, or any successor thereto.
(7)
Gas services
means the transmission, distribution,
conveyance, routing, pumping, or reception of natural or petroleum
gas by pipes, pumps, valves, or any other method now in existence
or hereafter devised.
(8)
Gross revenue
means all revenue, as determined
in accordance with generally accepted accounting principles, which
is derived or received, directly or indirectly, by the company from
or in connection with the operation of the system and for its services
and related services provided by the company to customers located
within the corporate limits of the City.
Gross revenue is intended to cover all revenue except the nonaccess
charge revenue from long distance service. Access charge revenues
of a telecommunications company shall not be considered long distance
revenues and, to the extent that company does not segregate long distance
revenues from other revenues, or other revenues are commingled with
long distance revenues, all such commingled revenues shall be included
in gross revenue. Gross revenue also includes the value of any free
services provided by the company. Gross revenue shall also include
the gross revenue of any other person including, without limitation,
any affiliated person, which is derived directly or indirectly from
or in connection with the operation of the system to the extent that
such revenue is derived through any means which is intended to have
the effect of avoiding the payment of the fees that would otherwise
be paid to the City under this article. Gross revenue shall not include:
(a)
The
revenue of any person, including, without limitation, an affiliated
person, to the extent that such revenue is also included in gross
revenue of the company.
(b)
Taxes
imposed by law on customers which the company is obligated to collect
and which the company passes on, in full, to the applicable tax authority
or authorities.
(c)
Any
investment income earned by the company; and any revenue from a charge
for a customer’s pro rata share of any occupation, franchise,
business, license, excise, privilege or other similar charge or tax
imposed upon the gross revenue or receipts of the company.
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For companies providing telecommunications services, the following
conditions apply in addition to the terms in the proceeding subsections:
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(a)
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Gross revenue includes all billing for services:
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(i)
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Without regard to the regulatory agency the company files reports
with;
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(ii)
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Whether the company makes a fixed monthly charge for services
or a variable charge based on minutes of use other criteria; or
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(iii)
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The classification of a customer.
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Gross revenue includes billings to customers located within
the City limits for services that may extend beyond the corporate
limits of the City.
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(b)
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If an affiliated person offers to the general public services
which are designed to either directly or indirectly promote the use
of the company’s operation within the City limits, then for
purposes of this article, the operations of the affiliated person,
specifically including the gross revenues, shall be included with
the operation of the company in determining gross revenue. However,
if the affiliated person pays to the company an amount for services
comparable to the amount the company receives from a competitor of
the affiliated person, then the amount of the fair market value of
the services received either directly or indirectly from the affiliated
person shall be combined with the gross revenues of the company, to
determine the total operations within the City limits.
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(c)
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Gross revenue includes, in addition to revenues from access
services under applicable PUC tariffs, charges to customers for access
charges as that term is defined by the FCC. For purposes of this article,
“access charges” includes both end user common line and
the carrier common line charges, as those terms are currently defined
or as subsequently modified by the FCC. The carrier common line charge
shall include the billing to an inter-exchange carrier, as that term
is defined by the FCC, for use of the telecommunications network attributable
to a customer within the City limits.
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(d)
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Gross revenue shall also include a portion of any other revenue
by the company received either directly or indirectly by the company
attributable to a customer within the City limits.
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(9)
Person
means any natural person, or any association,
firm, partnership, joint venture, corporation, or other legally recognized
entity, whether for-profit or not-for-profit, but shall not mean the
City.
(10)
PUC
means the Public Utility Commission established
by the Public Utility Regulatory Act of 1995, as now in effect or
as hereafter amended, or any successor to the PUC having rate-making
or regulatory jurisdiction over the company.
(11)
RRC.
means that the railroad commission established
by Tex. Rev. Civ. Stat. article 6447, as now in effect or as hereafter
amended, or any successor to the RRC having ratemaking or regulatory
jurisdiction over the company.
(12)
Resident
means any person residing in the City.
(13)
Street
means the surface of and the space above
and below any public street, road, highway, freeway, public way, alley,
or sidewalk, or any easement or right-of-way now or hereafter held
by the City which is dedicated for a use compatible with a system.
(14)
System
means any facility or network installed,
operated, or maintained by the company within the City for the purpose
of providing cable communications services, electric services, gas
services, or telecommunications services, as applicable.
(15)
Telecommunications services
means the electronic,
electrical, or other transmission, conveyance, routing, or reception
of sounds, signals, data, or information utilizing wires, cable, radio
waves, microwaves, satellites, fiber optics, or any other method now
in existence or hereafter devised.
(Ordinance 4901, sec. 1, adopted 9/19/95)
(A)
This
article does not apply to a company that holds a valid and existing
franchise from the City under a current franchise agreement nor does
it apply to a company that is conducting business under the terms
of an expired franchise if, in the sole discretion of the City Council,
the company is negotiating a new franchise in good faith and the previous
franchise has been expired not more than 180 days.
(B)
A company
may not, without the consent and approval of the City Council, extend
its system within the City by using any streets but may only maintain,
repair, replace, and reconstruct such facilities as the company has
in place in the streets on the effective date of this article and
may not extend its system into any new streets opened through platting,
subdivision, annexation or otherwise. The use of any street pursuant
to this article does not constitute the consent of the City to such
use unless the company holds a valid and existing franchise with the
City and does not relieve the company from its obligation to obtain
a franchise with the City. However, the intent of this section is
not to restrict the provision of service by any company through its
respective system but to coordinate the provision of such service
with the services provided by the City and with those services provided
by other companies through other systems. This subsection shall be
interpreted, construed and applied consistent with the foregoing statement
of intent.
(C)
A company
may not cut, dig, excavate, bore into or under, or otherwise work
upon a street, nor cut, dig, excavate, bore into or under, or otherwise
work upon the facilities of a system located in a street unless the
company has provided, for such work, a performance and maintenance
bond in favor of the City in the amount of the estimated cost of the
work. Each bond shall be conditioned upon the faithful performance
and completion of the work and the repair, replacement, and maintenance,
for a period of (1) year, of that portion of the street affected by
the work. The bond or bonds shall be executed by a corporate surety
or corporate sureties duly authorized to do business in the state.
The one (1) year maintenance period shall run from the date of completion
of the work. A separate bond shall be provided for each location of
such work, without combination with other locations of work, whether
such work is interrelated or not.
(D)
All
work done on a system within a street shall be done in accordance
with this Code. Nothing contained in this article precludes the application
of any other provision of this Code or other law to the company or
the system.
(Ordinance 4901, sec. 1, adopted 9/19/95)
(A)
The
company may promulgate such rules, regulations, terms, and conditions
governing the conduct of its business as shall be reasonably necessary
to enable the company to exercise its rights and to perform its obligations
under this article and to ensure uninterrupted service to each and
all of its customers, provided that no such rules, regulations, terms,
or conditions shall be in conflict with the provisions of this article,
or with any laws, regulations, ordinances, or orders of the City,
the PUC, the RRC, the state, or the United States.
(B)
Copies
of all material petitions, applications, communications, or reports
submitted by the company to the PUC, RRC, FCC, Securities and Exchange
Commission, or any other federal or state regulatory commission or
agency having jurisdiction in respect to any matters affecting the
system shall promptly be submitted, upon written request by the City,
to the City Manager. Copies of responses from the regulatory agencies
to the company shall likewise be furnished promptly to the City Manager
by the company, upon written request by the City.
(C)
Annually,
within sixty (60) days after the end of each calendar year or, in
the case of audited financial statements, within one hundred and twenty
(120) days after the end of each calendar year, the company shall
file with the City Manager certified financial statements, consisting
of a balance sheet, income statement and statement of changes in financial
position, of the company, provided that if audited financial statements
are prepared for the company concerning operations of the company
within the City, such audited statements are to be submitted in lieu
of certified statements.
(D)
The
City shall have authority to arrange for and conduct an audit of and
to copy the books and records of the company. The company shall be
given at least five (5) days’ notice of the audit request, a
description of and purpose for the audit, and a description, to the
best of the City’s ability, of the books, records, and documents
the City wants to review.
(E)
(1)
The
company shall at all times utilize the standard of care attendant
to the risks involved and shall install and use commonly accepted
methods and devices for preventing failures and accidents which are
likely to cause damage, injury, or nuisance to the public or to employees
of the company.
(2)
The
company shall install and maintain its wires, cables, fixtures, and
other equipment in accordance with the requirements of all applicable
Codes, and in such manner that they will not interfere with any installations
of the City. All installations shall be made so as not to impair the
fire integrity of any building.
(3)
All
lines, equipment, and connections in, over, under, and upon the streets,
other public property, and private property within the City, wherever
situated or located, shall at all times be kept and maintained in
a safe and suitable condition and in good order and repair.
(4)
The
company shall, on the request of any person or the City, promptly
raise, lower, or remove, temporarily, its wires, cables, fixtures,
and other equipment to accommodate the moving of houses or other bulky
structures. The reasonable expense of the temporary removal, raising,
or lowering shall be charged to and paid by the benefited party.
(5)
The
company shall at all times be subject to all lawful exercise of police
power by the City as the City shall now or hereafter by charter, resolution
or ordinance provide. The terms of this article shall apply to all
the company’s systems used, in whole or part, in the provision
of services in newly annexed areas upon the effective date of such
annexation.
(6)
The
company shall lay, maintain, construct, operate, and replace its poles,
wires, anchors, cables, manholes, conduits, and appurtenances so as
to interfere as little as possible with traffic and shall promptly
clean up and restore to as good or better condition, at its cost,
all streets and other surfaces which it may disturb. All poles, stubs,
guys, anchors, and other aboveground facilities shall be set so that
they shall not interfere with the flow of water in any gutter or drain,
and so that the same shall not interfere with ordinary travel on the
streets, and so that they shall not compromise public safety. The
City reserves the right to require the company, at its own expense,
to install underground all new facilities except those to which aboveground
access is necessary for normal maintenance and connections, without
claim for reimbursement or damages against the City and to relocate
all such existing facilities underground. The location and route of
all poles, stubs, guys, anchors, conduits, and cables to be placed
and constructed by the company in the City, and the location of all
conduits to be laid by the company in the City shall be subject to
the reasonable and proper regulation, control and direction of the
City.
(7)
The
company shall comply with all reasonable rules and regulations of
the City relative to street excavations, and permits therefor. Any
and all streets and other public property disturbed by the company
in building, constructing, renewing or maintaining its system shall
be restored within a reasonable time after the completion of the work
to as good a condition as before the commencement of the work. The
company shall be responsible for all maintenance costs incurred as
a result of any defects, impairments or substandard condition in the
street caused by the construction, maintenance or restoration work
of the company. No street shall be encumbered for a longer period
than shall be necessary to execute the work. The company shall submit,
in a format prescribed by the City, information describing the nature,
location, and estimated duration of any activity which will result
in the disturbance of any street. When the company shall make or cause
to be made excavations, or shall place obstructions in any street,
the public shall be protected by barriers and lights placed, erected
and maintained by the company. The company shall repair, clean up
and restore to an approximate original condition all streets disturbed
during construction and repair of its system.
(8)
The
City reserves the right to lay, and permit to be laid, sewer, gas,
water, electric, and other pipelines or cables or conduits, and to
do and permit to be done any underground and overhead installation
or improvement that may be deemed necessary or proper by the City
in, across, along, over or under any street occupied by the company,
and to change any curb or sidewalk or the grade of any street. In
permitting such work to be done, the City shall not be liable to the
company for any damage so caused, nor shall the City be liable to
the company for any damages arising out of the performance by the
City or its contractors or subcontractors, not willfully and unnecessarily
occasioned; provided, however, nothing herein shall relieve any other
person or corporation from liability for damages to facilities of
the company. The City expressly reserves the right to change the grade,
install, relocate, or widen any street within the present limits of
the City and within the limits as same may from time to time be extended,
and the company shall relocate, at its own expense, its poles, wires,
cables, anchors, manholes, conduits, and other facilities and appurtenances
in order to accommodate the installation, relocation, widening, or
changing of the grade of any such street, including if necessary,
relocating such poles, wires, cables, anchors, manholes, conduits,
or other facilities or appurtenances to a sufficient distance from
the edge of the pavement to permit a reasonable work area for machinery
and individuals engaged in installing, relocating, widening, or changing
the grade of any street. The City also reserves the right to require
the company to relocate, at the sole expense of the company, any facilities
erected or maintained pursuant to the privilege granted herein, if
the relocation is reasonably necessary for traffic safety purposes
or the accommodation of other work by the City. Whenever by reason
of changes in the grade of a street or in the location or manner of
constructing a water pipe, gas pipe, sewer, or other aboveground or
underground structure, it is deemed necessary by the City to remove,
alter, change, adapt, or conform the underground or aboveground facilities
of the company, the company shall make the alterations as soon as
practicable when ordered in writing by the City, without claim for
reimbursement or damages against the City.
(9)
The company’s use of and occupancy of the streets in furtherance of the provision of its services is conditioned on the company’s compliance with the terms and conditions stated in this article and the payment of the street use fees stated in section 51.33. The company’s continued occupancy and use of the streets to provide its services shall be deemed acceptance of the terms and conditions stated in this article and agreement to pay the street use fees stated in section 51.33.
(10)
The information, bonds, permits or other prerequisites of subsection (E) of this section and of section 51.31 shall be provided or done prior to the performance of any work in, on, above or under any street except in the case of emergencies in which case the information, bonds, permits or other prerequisites shall be provided or done as soon as practicable.
(Ordinance 4901, sec. 1, adopted 9/19/95)
(A)
The
company shall pay to the City as street use fees for the use and occupation
of the streets for gas services and electric services an amount equal
to two percent (2%) of the company’s annual gross revenues and
an amount equal to five percent (5%) for any other services including,
but not limited to, telecommunications services and cable communications
services. Payment of street use fees shall be made quarterly, not
later than forty-five (45) days after each calendar quarter. Each
street use fee payment shall be accompanied by a report showing the
basis for the computation and other relevant facts.
(B)
No acceptance
of any street use fee payment shall be construed as an accord and
satisfaction that the amount paid is in fact the correct amount, nor
shall such acceptance of any payment, be construed as a release of
any claim that the City may have for further or additional sums payable
under the provisions of this article. All amounts paid shall be subject
to audit and recomputation by the City.
(C)
Payment
of street use fees shall be in addition to any and all taxes or other
fees or charges which the company or any affiliated person shall be
required to pay to the City or to any state or federal agency or authority,
all of which shall be separate and distinct obligations of the company
and its affiliates.
(D)
Neither
the company nor any affiliated person shall have or make any claim
for any deduction or other credit of all or any part of the amount
of street use fee payments from or against any City taxes or other
fees or charges which the company or any affiliated person is required
to pay to the City; and neither the company nor any affiliated person
shall apply or seek to apply all or any part of the amount of such
payments as a deduction or other credit from or against any City taxes,
other fees or charges, each of which shall be deemed to be separate
and distinct obligations of the company and its affiliated persons.
(Ordinance 4901, sec. 1, adopted 9/19/95)
The City, its officers, employees and agents shall not be liable
for any loss or damage to any real or personal property of any person,
or for any injury to or death of any individual person, arising out
of or in connection with the construction, operation, maintenance,
repair or removal of, or other action or event with respect to, the
system, or the distribution of any service over the system. The company
shall defend, indemnify and hold harmless the City, its officers,
employees, and agents, from and against all liability, including strict
liability, actual, punitive, and all other forms of damage, cost,
and expense (including reasonable attorneys’ fees) arising out
of or in connection with the construction, operation, maintenance,
repair or removal of, or any other action or event with respect to,
the system, or the exercise of any service under this article whether
caused by or attributable to the company or by the company and others,
expressly including any party indemnified herein.
(Ordinance 4901, sec. 1, adopted 9/19/95)
(A)
The company shall maintain liability insurance insuring both the company and the City and its officers, boards, commissions, elected officials, agents and employees with regard to any of the matters listed in section 51.31 and section 51.32 herein, in the minimum amounts of:
(1)
One
million dollars ($1,000,000.00) for bodily injury or death to each
person;
(2)
One
million dollars ($1,000,000.00) for property damage resulting from
any one accident;
(3)
Three
million dollars ($3,000,000.00) in an umbrella policy covering bodily
injury, death and property damage; and
(4)
One
million dollars ($1,000,000.00) for all other types of liability.
(B)
The
company shall carry in its own name automobile liability insurance
with limits of five hundred thousand dollars ($500,000.00) for each
person and one million dollars ($1,000,000.00) for each accident for
property damage with respect to owned and nonowned automobiles for
the operations of which the company is responsible.
(C)
Because
the company will be working in the streets continually, the company’s
insurance will cover comprehensive form, premises-operations, explosions
and collapse hazard, underground hazard and products completed hazard
in the minimum amount of one million dollars ($1,000,000.00), or whatever
greater limits are permitted by the state for bodily injury and property
damaged combined.
(Ordinance 4901, sec. 1, adopted 9/19/95)
