All facilities shall be constructed, installed and located in
accordance with the following terms and conditions:
(A)
A
grantee shall install its telecommunication facilities within an existing
underground duct or conduit whenever excess capacity exists within
such underground facility, absent the submission by the grantee 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.
(B)
A
grantee 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 designed by the City.
(C)
Whenever
any existing electric utilities, cable facilities or telecommunication
facilities are located underground within public rights-of-way of
the City, a grantee with permission to occupy the same public right-of-way
must also locate its telecommunications facilities underground, absent
a compelling demonstration by the grantee or an affected telecommunications
carrier that this requirement is not reasonable or feasible in any
specific instance. This paragraph only applies to telecommunication
facilities constructed or extended after the effective date of this
Chapter.
(D)
Whenever
any new or existing electric utilities, cable facilities or telecommunication
facilities are located or relocated underground within public rights-of-way,
the City may request, but not require, that a grantee, then currently
occupying the same public rights-of-way, relocate its telecommunications
facilities underground within a reasonable period of time. When such
a request is made, the City and the grantee shall meet to discuss
whether the request is technically and economically reasonable and
feasible and, if so, under what circumstances the grantee might be
willing to relocate its telecommunication facilities.
(E)
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 grantee
or other affected telecommunication 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 unavailability of its services, or to any other unreasonable
technical or economic burden.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
All grantees performing major construction work are required
to obtain construction permits to the extent and in the manner required
in Division 6 of this Chapter. If not performing major construction
work, the grantee must comply with the City Code when performing construction
work in a public right-of-way.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
No grantee may locate or maintain its telecommunication 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 grantee, temporarily or permanently, as determined
by the city manager or his or her designee, upon reasonable notice.
If the temporary removal of a grantee's aerial facilities is necessary
to permit the moving of houses or other bulky structures, the grantee
shall be required to temporarily remove the same upon not less than
48 hours' advance notice by a party permitted to move a building,
house or other bulky structure pursuant to city ordinances. The expenses
of such temporary relocation or removal of aerial facilities shall
be paid by the party or parties requesting and benefiting from such
temporary relocation or removal.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
No grantee nor any person acting on a grantee'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.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
Unless otherwise provided in this Chapter, no grantee nor any
person acting on the grantee'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.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
In the event of an unexpected repair or emergency, a grantee
may commence such repair and emergency response work as required under
the circumstances, provided the grantee 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.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
Each grantee shall maintain its facilities in good and safe
condition and in a manner that complies with all applicable law.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
(A)
Within
120 days following written notice from the City, a grantee shall,
without claim for reimbursement or damages against the City, temporarily
or permanently remove, relocate, change or alter the position of any
telecommunication 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 grantee to impose a financial hardship on the grantee, the grantee 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 grantee to adopt or conform its telecommunication
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 grantee shall not be required to make any such
changes until such other entity or person shall reimburse or make
arrangements satisfactory to the grantee to reimburse the grantee
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 grantee fails or refuses to remove or abate
the facilities in question, the City retains the right and privilege
to remove or abate any such telecommunication facilities, at the sole
cost and expense of the grantee. In performing or permitting such
work to be done, the City shall not be liable to any telecommunication
carrier or any telecommunication provider for any damages to any telecommunication
facilities unless directly and proximately caused by willful or malicious
act by the City, and shall not be liable in any event for any consequential
damages relating to service interruptions.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
Within 30 days following written notice from the City, any grantee,
telecommunication carrier, or other person that owns, controls or
maintains any unauthorized telecommunication 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. All telecommunication
facilities are unauthorized and subject to removal in the following
circumstances:
(A)
Upon
expiration or termination of the grantee's telecommunication franchise;
(B)
Upon
abandonment of a facility on city property or within the public rights-of-way
of the City;
(C)
If
the facility was constructed or installed without the prior grant
of a telecommunication franchise; or
(D)
If
the facility was constructed or installed without the prior assurance
of a required construction permit.
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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 telecommunication 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 telecommunication
carrier or any telecommunication provider for any damages to any telecommunication
facilities unless directly and proximately caused by willful, intentional
or malicious act by the City, and shall not be liable in any event
for any consequential damages relating to service interruptions.
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(Ordinance 7647, sec. 1, adopted 9/9/1997)
The City retains the right and privilege to cut or move any
telecommunication 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 grantee in such
instances to assure continuity of service, and to afford the grantee
the opportunity to make such relocation and/or removal itself where
deemed reasonable, at the city's sole discretion.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
Unless directly and proximately caused by willful or malicious
acts by the City, the City shall not be liable for any damage to or
loss of any telecommunication 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.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
(A)
When
a grantee, or any person acting on the grantee's 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 grantee shall temporarily restore the
affected ways or property. Such temporary restoration shall be at
the grantee's sole expense and the grantee shall promptly undertake
and complete the required permanent restoration when the weather or
other conditions no longer prevent such permanent restoration.
(C)
A
grantee 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.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
(A)
Upon
written request of the City, and within a reasonable time after completing
any new construction of or expansion of existing telecommunication
facilities, but in no case more than 60 days after such completion,
a grantee shall provide the City with an accurate as-built map or
maps, which shall be digital if possible, certifying the location
of all such new or expanded telecommunication facilities.
(B)
Each
grantee shall maintain maps of all of the grantee's telecommunication
facilities located on City property or within the public rights-of-way.
Such maps shall be made available for review by other grantees, 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 business days of a request from the City, the grantee
shall provide the City with a copy of any portion of those maps showing
the location of the grantee'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 grantee shall also promptly locate any buried or underground utilities
at the city's request at no cost to the City.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
Within 20 days of a written request from the city manager or
his or her representative, each grantee shall furnish the City with
information sufficient to demonstrate:
(A)
That
grantee has complied with all requirements of this Chapter.
(B)
That
all franchise fees due the City under this Chapter as of the date
of the request have been properly calculated and paid by the grantee.
(C)
All
books, records, maps and other documents maintained by the grantee
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. The city's right to examine the grantee's
books and records expressly excludes the right to examine any records,
documents or other writings the disclosure of which is prohibited
by state or federal law, including the Electronic Communications Privacy
Act, 18 USC § 2701 et seq.
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Each grantee shall furnish the city attorney with notice of
all petitions, applications, and reports submitted by the grantee
to the Federal Communications Commission and the Public Utility Commission
of Texas relating to any matters affecting both the use of public
rights-of-way and telecommunication services within the City. Upon
written request, the grantee shall furnish the city attorney with
copies of all such documents.
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(Ordinance 7647, sec. 1, adopted 9/9/1997)
(A)
Except
as provided in subparagraph (C) below, each grantee shall, as a condition
of the grant, secure and maintain the following liability insurance
policies insuring both the grantee and the City, and its elected and
appointed officers, officials, agents and employees as additional
insureds:
(2)
Automobile liability for owned, nonowned and hired vehicles with
a limit of $3,000,000.00 for each person and $3,000,000.00 for each
accident.
(3)
Workers' compensation within statutory limits and employer's liability
insurance with limits of not less than $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 $3,000,000.00.
(B)
The
liability insurance policies required by this Section shall be maintained
by the grantee throughout the term of the telecommunications franchise,
and any such other period of time during which the grantee is operating
without a franchise hereunder, or is engaged in the removal of its
telecommunication 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 Attorney of such intent
to cancel or not to renew."
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Within 60 days after receipt by the City of said notice, and
in no event later than 30 days prior to said cancellation, the grantee
shall obtain and furnish to the City replacement insurance policies
meeting the requirements of this Section.
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(C)
With
respect to the obligation to comply with the requirements for automobile
liability insurance and for workers' compensation insurance, a carrier
may self-insure, provided the carrier tenders satisfactory evidence
of self-insurance as contemplated by the Texas Motor Vehicle Safety
Responsibility Act, V.T.C.A., Transportation Code § 601.124,
and the Texas Workers' Compensation Act, V.T.C.A., Labor Code §
407.001 et seq. With respect to the obligation to provide other forms
of insurance, a grantee may self-insure, provided that the grantee
is given prior approval by the City. To be given prior approval for
self-insurance, the grantee must show to the city's satisfaction that
the grantee is in sound financial condition, and that the grantee
maintains a dedicated reserve in an amount sufficient to ensure that
the grantee's outstanding potential claims do not at any time exceed
50 percent of the value of the reserve.
(D)
Grantees
shall obtain and maintain in full force and effect, throughout the
term of a franchise granted under this Chapter, insurance with an
insurance company licensed to do business in the State of Texas and
acceptable to the City as determined by its representative. All companies
will be required to be rated "A-VI" or better by A.M. Best or "A"
or better by Standard and Poors. Grantees shall furnish the City with
proof of such insurance so required at the time of filing the acceptance
of a franchise. The City reserves the right to review these insurance
requirements during the effective period of any franchise, and to
reasonably adjust insurance coverage and their limits when deemed
necessary and prudent by the city's risk manager, based upon changes
in statutory law, court decisions, or the claims history of the industry
or the grantee. The City shall not increase by more than ten percent
per year the amount of insurance coverage to be carried by the grantee,
unless required by law or court decisions.
(E)
The
city attorney shall be entitled, upon request and without expense,
to receive copies of certificates of insurance evidencing coverage
stated above. The City also may make any reasonable requests for deletion,
revision or modification of particular policy terms, conditions, limitations
or exclusions, except where policy provisions are established by law
or regulation binding upon either the City or a grantee or upon the
underwriter for any of such policies. Upon request for deletion, revision
or modification by the city manager, the grantee shall exercise reasonable
efforts to accomplish the changes and shall pay the cost thereof.
(F)
Grantees
shall agree that, with respect to the above-required insurance, all
insurance certificates will contain the following required provisions:
(1)
Name the City and its officers, employees, board members and elected
representatives as additional insureds (as the interests of each insured
may appear) as to all applicable coverage;
(2)
Provide for 30 days' notice to the City for cancellation, nonrenewal,
or material change;
(3)
Provide for notice to both the city manager and the city secretary
by certified mail; and
(4)
Provide that all provisions of the franchise, as amended, concerning
liability, duty, and standard of care, including the indemnity election,
shall be underwritten by contractual coverage sufficient to include
such obligations within applicable policies, subject to the policy
terms and conditions.
(G)
The
insurance certificates obtained by grantees in compliance with this
Section shall be subject to a approval by the city attorney, and such
proof of insurance shall be filed and maintained with the city attorney
during the term of the franchise, or any extension or renewal thereof,
and may be changed from time to time to reflect changing liability
limits, as required by the City. Grantees shall immediately advise
the city attorney of any actual or potential litigation that might
reasonably compromise or otherwise jeopardize the insurance coverage
required by this Section, including, but not limited to, any levels
of coverage.
(H)
Insurers
shall have no right of recovery against the City, it being the intention
that the insurance policies shall protect the grantee and the City
and shall be primary coverage for all losses covered by the policies.
(I)
The
policy clause "Other Insurance" shall not apply to the City where
the City is an insured on the policy.
(J)
Companies
issuing the insurance policies shall have no recourse against the
City for payment of any premiums or assessments, which all are set
at the sole risk of the grantee. Insurance policies obtained by the
grantee shall provide that the issuing company waives all rights of
recovery by way of subrogation or assignment against the City in connection
with any damage covered by these policies.
(K)
Whether
or not the grantee purchases insurance or arranges for self-insurance,
the grantee and its insurer waive all rights of subrogation against
the City. If insurance is purchased, the City shall be furnished with
a certificate which reflects this waiver of subrogation.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
Each franchise agreement shall include, to the extent permitted
by law, the grantee'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 grantee or its affiliates, officers, employees,
agents, contractors or subcontractors in the construction, operation,
maintenance, repair or removal of its telecommunication facilities,
and in providing or offering telecommunication services over the facilities
or network, whether such acts or omissions are authorized, allowed
or prohibited by this Chapter or by a franchise agreement made or
entered into pursuant to this Chapter.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
Before a franchise granted pursuant to this Chapter is effective,
and as necessary thereafter, the grantee shall provide and deposit
such monies, bonds, letters of credit or other instruments in form
and substance acceptable to City as may be required by this Chapter
or by an applicable franchise agreement.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
Each grantee shall establish a permanent security fund with
the City by depositing the amount of $25,000.00 with the City in cash,
an unconditional letter of credit, or other instrument acceptable
to the City, which fund shall be maintained at the sole expense of
the grantee so long as any of the grantee's telecommunication facilities
are located on city property or within the public rights-of-way of
the City.
(A)
The
fund shall serve as security for the full and complete performance
of this Chapter, including any costs, expenses, damages or loss the
City pays or incurs because of any failure attributable to the grantee
to comply with the codes, ordinances, rules, regulations or permits
of the City.
(B)
Before
any sums are withdrawn from the security fund, the City shall give
written notice to the grantee:
(1)
Describing the act, default or failure to be remedied, for the damages,
cost or expenses which the City has incurred by reason of the grantee's
act of default.
(2)
Providing a reasonable opportunity for the grantee to first remedy
the existing or ongoing default or failure, if applicable.
(3)
Providing a reasonable opportunity for the grantee to pay any monies
due the City before the City withdraws the amount thereof from the
security fund, if applicable.
(4)
That the grantee will be given an opportunity to review the act,
default or failure described in the notice with the city manager or
his or her designee.
(C)
Grantees
shall replenish the security fund within 14 days after written notice
from the City that there is a deficiency in the amount of the fund.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
For any construction project exceeding an estimated cost of
$50,000.00, a performance installation bond written by a corporate
surety acceptable to the City equal to at least 100 percent of the
estimated cost of construction of the grantee's telecommunication
facilities (excluding cost of plant) on city property and within the
public rights-of-way of the City shall be deposited before construction
is commenced.
(A)
The
construction bond shall remain in force until 60 days after substantial
completion of the work, as determined by the city manager or his or
her designee, including restoration of public rights-of-way and other
property affected by the construction.
(B)
The
construction bond shall guarantee, to the satisfaction of the City:
(1)
Timely completion of construction.
(2)
Construction in compliance with applicable plans, permits, technical
codes and standards.
(3)
Proper location of the facilities as specified by the City.
(4)
Restoration of the public rights-of-way and other property affected
by the construction.
(5)
The submission of "as-built" drawings after completion of the work
as required by this Chapter.
(6)
Timely payment and satisfaction of all claims, demands or liens for
labor, material or services provided in connection with the work.
(C)
In
the event that performance by a grantee of any of its obligations
under the terms of the grantee's construction permit, construction
bond and/or the construction requirements imposed by this Chapter
shall be interrupted or delayed by an act of God, by acts of war,
riot, or civil commotion, by an act of state, by strikes, fire, or
flood, or by the occurrence of any other similar event, the grantee
shall be excused from such performance for such period of time as
is reasonably necessary after such occurrence abates or the effects
thereof have dissipated.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
All grantees are required to cooperate with the City and with
each other.
(A)
By
February 1 of each year, grantees shall provide the city manager or
his or her designee with a schedule of their then known proposed construction
activities in or around or that may affect city property or public
rights-of-way.
(B)
Each
grantee shall meet with the city manager or his or her designee, other
grantees, 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.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
A franchise may not be transferred, assigned or disposed of
by sale or lease 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.
(A)
The
grantee and the proposed assignee or transferee of the franchise shall
provide and certify the following information to the City not less
than 150 days prior to the proposed date of transfer:
(1)
Complete information setting out the nature, terms and location of
the proposed transfer or assignment.
(2)
All information required of a telecommunication franchise applicant
pursuant to Division 3 of this Chapter with respect to the proposed
transferee or assignee.
(3)
Any other information reasonably required by the City.
(4)
No transfer shall be approved unless the assignee or transferee has
the legal, financial and other requisite qualifications to own, hold
and operate the telecommunication facilities covered by the franchise
pursuant to this Chapter.
(5)
The grantee shall reimburse the City for all direct and indirect
fees, costs, and expenses reasonably incurred by the City in considering
a request to transfer or assign a telecommunications franchise.
(6)
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.
(7)
Provided the rights of the City are not changed, modified or rescinded,
the grantee may merge or consolidate without the consent of the City.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
A franchise granted by the City to use or occupy city property
or public rights-of-way may be revoked for the following reasons:
(A)
Construction
on city property or in the public rights-of-way at an unauthorized
location.
(B)
Unauthorized
sale, assignment or transfer of the grantee's franchise, or a substantial
interest therein.
(C)
Misrepresentation
of a material fact by a grantee or any of the grantee's officers,
employees or agents in any application to the City.
(D)
Unauthorized
abandonment of telecommunication facilities on city property or in
the public rights-of-way.
(E)
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 Chapter.
(F)
Failure
to pay compensation, fees or costs when and as due the City.
(G)
Insolvency
or bankruptcy of the grantee.
(H)
Violation
of material provision of this Chapter.
(I)
Violation
of the material terms of a franchise agreement.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
In the event that the city manager believes that grounds exist
for revocation of a franchise, he or she shall give the grantee 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 grantee a reasonable period of
time not exceeding 30 days to furnish evidence:
(A)
That
corrective action has been taken, or is being actively and expeditiously
pursued, to remedy the violation or noncompliance.
(B)
That
rebuts the alleged violation or noncompliance.
(C)
That
it would be in the public interest to impose some penalty or sanction
less than revocation.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
In the event that a grantee fails to provide evidence reasonably satisfactory to the city manager as provided in Section 14-1-56 of this Chapter, the manager shall refer the apparent violation or noncompliance to the governing body. The governing body shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
If persuaded that the grantee has violated or failed to comply
with material provisions of this Chapter 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:
(A)
Whether
the misconduct was egregious.
(B)
Whether
substantial harm resulted.
(C)
Whether
the violation was intentional.
(D)
Whether
the grantee has a history of prior violations of the same or other
requirements.
(E)
The
grantee's history of overall compliance.
(F)
Whether
the grantee voluntarily disclosed, admitted, or cured the violation.
(Ordinance 7647, sec. 1, adopted 9/9/1997)
