(a) 
Protection of rights-of-way; neutrality.
The purpose of this article is to establish a competitively neutral policy for the use, by telecommunications providers, of the city's public rights-of-way, and to enable the city to:
(1) 
Minimize congestion, inconvenience, visual impact, costs, and other adverse effects which would likely result from the unregulated placement of telecommunications facilities within public rights-of-way;
(2) 
Require, to the extent permitted by law, that telecommunications providers pay fair and reasonable compensation for the use of public rights-of-way, for private or commercial purposes;
(3) 
Promote competition among telecommunications providers and encourage the universal availability of telecommunications services to all residents and businesses of the city;
(4) 
Conserve the limited physical capacity of such public rights-of-way held in public trust by the city;
(5) 
Ensure that telecommunications providers having facilities within the city comply with applicable ordinances, rules, and regulations of the city; and
(6) 
Ensure that the city fairly and responsibly preserves and protects public health, safety, and general welfare.
(b) 
Services not regulated.
It is not the policy or intention of this article to prohibit, regulate, license, or franchise the provision of any service within the city, and no provision of this article shall be so construed; any term or condition contained herein, or in any license ordinance adopted pursuant hereto, shall relate to the rights of a person to make use of the public rights-of-way, not in limitation of any right granted by the state public utility commission, the Federal Communications Commission, or their successors.
(c) 
Existing franchise rights preserved.
This article shall not apply to a telecommunications provider operating within the city on the effective date hereof pursuant to a valid existing franchise ordinance; provided, however, upon the termination of any such franchise the telecommunications provider to which it applies shall be subject to the provisions hereof in the same manner as any other telecommunications provider. Notwithstanding the foregoing, any telecommunications provider operating within the city on the effective date hereof pursuant to a valid franchise ordinance may, at such provider's option, apply for the issuance of a license hereunder and the early termination of such franchise. Such franchise shall be deemed terminated upon the effective date of such license. Nothing in this article shall be construed to diminish the right or ability of the city to require any other user of public rights-of-way to secure appropriate city authorization, including, without limitation, cable service providers.
(Ordinance 990720-1, sec. 2, adopted 7/20/1999)
The following words, terms, and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Access line
means a unit of measurement representing:
(1) 
Each switched transmission path of the transmission media that is physically within the public right-of-way extended to the end-user customer's premises within the city that allows delivery of local exchange telephone services within the city that is provided by means of owned facilities, unbundled network elements or leased facilities, or resale;
(2) 
Each termination point of a non-switched telephone or other circuit consisting of transmission media located within the public right-of-way connecting specific locations identified by, and provided to, the end-user for delivery of non-switched telecommunications services within the city; or
(3) 
Each switched transmission path within the public right-of-way used to provide central office based PBS-type services for systems of any number of stations within the city, and in such instance, one such path shall be counted for every ten stations served. The term "access line" shall not be construed to include interoffice transport or other transmission media that do not terminate at an end-user customer's premises, or to permit duplicate or multiple assessment of access line rates upon the provision of a single service.
Applicant
means a person who files an application with the city, pursuant to section 30-55 hereof, to obtain a license to use or place network facilities within the city's public rights-of-way, whether by means of the person's own facilities or by purchase or lease of one or more network facilities from another provider of telecommunications services.
Cable act
means the Cable Communications Policy Act of 1984, 47 USC 532 et seq.
Cable operator
means a person providing or offering to provide cable service within the city as that term is defined in the cable act.
Cable service
shall have the same meaning provided by the term "cable act."
City property
means all real property owned by the city, other than public rights-of-way, as that term is defined herein, and all other properties held in a proprietary capacity by the city, which are not subject to right-of-way licensing as provided in this article.
Federal Communications Commission or FCC
means the federal agency or its successor agency that is the regulatory authority over telecommunications providers.
License fee
means the compensation payable to the city by a licensee for the use and occupancy of public rights-of-way.
License ordinance
means an ordinance adopted pursuant to this article which grants to a telecommunications provider the authority and license to place, operate, and utilize its network facilities within the public rights-of-way of the city for the purpose of providing telecommunications services.
Licensee
means a telecommunications provider that has been issued a license pursuant to a license ordinance.
Network facilities
means conduits, ducts, manholes, vaults, tanks, towers, wave guides, optic fiber, microwave dishes, transmitters, antennas and antenna structures, radio equipment, and any associated converters, electrical lines, communications lines, transmission lines, cables, wires, amplifiers, switches, utility equipment, or other such object, device, facility, or appurtenance, including attachments and encasements therefor, whether underground or overhead, which are designed, installed and constructed within the public rights-of-way for the purpose of producing, receiving, amplifying, switching, transmitting, or distributing communication signals, whether analog or digital, whether for voice, data, or other purposes, and whether by or through "wired" or "wireless" systems, to or from customers, subscribers or locations within the corporate limits of the city. Network facilities shall not include airwaves above a right-of-way. Network facilities shall not include such facilities to the extent that they are solely used to provide cable services.
Private or commercial purpose
means any purpose other than a public purpose.
Public rights-of-way
means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, easement, or similar property in which the city holds a property interest (fee title, easement or otherwise) or over which the city exercises any rights of management or control, and which, consistent with the purposes for which it was acquired or dedicated, may be used for the installation and maintenance of network facilities.
Public Utility Commission of Texas or PUC
means the state agency having jurisdiction over telecommunications providers.
Telecommunications
means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the content of the information as sent and received.
Telecommunications provider or provider
means a person who offers telecommunications services to customers through network facilities located in the public rights-of-way.
Telecommunications services
means the provision of telecommunications provided through network facilities, excluding cable services, but which include, without limitation:
(1) 
Access lines provided to end users or to other telecommunications companies for the purpose of voice, data, or non-cable video transmission;
(2) 
Non-switched telephone circuits consisting of transmission media connecting specific locations identified by, and provided to, the end-user for delivery of non-switched services within the city;
(3) 
Switched access lines for the distribution of voice, data, and non-cable video transmission; and
(4) 
Any other telecommunication services authorized by state or federal law.
Wired telecommunications service
means telecommunications services provided through network facilities which transmit and receive sounds, pictures, or signals of any kind by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, and includes both one-way and two-way services.
Wireless telecommunications service
means telecommunications services provided through network facilities which transmit and receive sounds, pictures, or signals of any kind by radio or microwave signals between the points of origin and reception of such transmission, and includes both one-way and two-way services.
(Ordinance 990720-1, sec. 3, adopted 7/20/1999)
(a) 
Authorization to use public rights-of-way required.
It shall be unlawful for any person to lay, construct, operate, offer for lease, or make available for any use whatsoever, any network facility across, along, over, above, or under any public right-of-way within the limits of the city, for any private or commercial purpose, unless the right to do so has been granted to such person pursuant to a license ordinance adopted by city council in accordance herewith.
(b) 
Liability for fees.
Without limitation of other remedies available to the city, persons making use of the public rights-of-way of the city in violation of this article, or otherwise without valid consent of the city, shall be liable for all fees authorized by this article effective as of the date of inception of such use.
(Ordinance 990720-1, sec. 4, adopted 7/20/1999)
(a) 
Application required; contents.
Any person proposing to place network facilities within public rights-of-way shall submit an application to the city. Applications may be filed in the office of the city secretary. An application shall describe in general terms all services the applicant will offer or provide, and shall outline the applicant's proposed network facilities, including a description of the physical characteristics of the network facilities proposed to be installed in the public rights-of-way. The city council may require the following information:
(1) 
The identity of the applicant and all affiliates of the applicant which may use in any manner the network facilities to provide telecommunications services within the city;
(2) 
A general description of the principal transmission medium that will be used by the applicant to offer or provide such telecommunications services; and
(3) 
Preliminary engineering plans, specifications, and a network map of planned or projected new network facilities to be located within the city, all in sufficient detail to identify:
a. 
The location and route requested for the applicant's proposed network facilities;
b. 
The location of all known overhead and underground public utility, telecommunications, cable, water, sewer, drainage and other facilities in the public rights-of-way along the proposed route;
c. 
The specific trees, structures, improvements, facilities, or obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate;
d. 
If the applicant is proposing to install overhead facilities, evidence that surplus space is available, and, if existing utility poles are to be utilized, evidence that their use is authorized;
e. 
If the applicant is proposing to install underground network facilities, evidence of whether surplus duct or conduit space is available, and, if existing ducts or conduits are to be utilized, evidence that their use is authorized;
f. 
A preliminary construction schedule and completion dates;
g. 
A preliminary traffic-control plan;
h. 
Information to establish that the applicant will obtain all other governmental approvals and permits prior to construction and operation of the network facilities and prior to offering or providing the telecommunications services;
i. 
Whether the applicant intends to provide cable service or other video programming service, such as an open video system, as defined in the cable act, together with sufficient information to determine whether such service is subject to cable franchising under the cable act;
j. 
A narrative description of applicant's existing network facilities in the city that the applicant intends to use or lease;
k. 
The area or areas of the city the applicant desires to serve and a schedule for build-out to the entire city, if any; and
l. 
Such other and further information relating to the use of the public rights-of-way that may be reasonably requested by the city council.
(b) 
Standards for approval.
In making its determinations regarding adoption of license ordinances, the city council shall consider the legal authority of the subject applicant to provide telecommunications services within the city, with due regard for applicable federal and state telecommunications laws, regulations, and policies.
(c) 
License ordinance.
License ordinances adopted by city council shall be deemed to incorporate all provisions of this article. A license ordinance shall be deemed as authorization for the applicable licensee to use the public rights-of-way for the provision of telecommunications services. No network facility shall be located, or made use of, in any public right-of-way in a manner inconsistent with the provisions of this article and/or the license ordinance. No license ordinance shall be construed to grant access to "city property," as defined herein, unless specifically included therein. No licensee shall use a public right-of-way or allow any other person to use licensee's network facilities in a public right-of-way, except as provided in the applicable license ordinance. Notwithstanding the foregoing, a license ordinance shall not be required for a person engaging solely in the resale of a licensee's services or the provision of services by unbundled network elements obtained from a licensee, provided that the applicable license ordinance authorizes the network facilities involved and the person does not own or operate any network facilities in the public rights-of-way.
(d) 
Conditions of license.
The issuance of any license pursuant to this section shall be subject to the following additional standards:
(1) 
Interference with public use prohibited.
All licensees shall lay, construct, erect, operate, lease, maintain, repair, and replace their network facilities in such a manner as to not unreasonably interfere with the use of public rights-of-way, public streets and sidewalks, or other public or private ways.
(2) 
Compliance with law.
Licensees are explicitly subject to the police powers of the city and the city's rights as a property owner under state and federal laws. All work done by licensees in connection with the construction, expansion, reconstruction, maintenance, or repair of its network facilities in public rights-of-way shall be subject to and governed by all applicable federal, state, and city rules, regulations, laws, and ordinances. The provisions of this subsection shall apply to all licensees and to any other person owning, operating, or in control of network facilities located within public rights-of-way.
(3) 
Construction regulations.
a. 
Excavations.
All excavations and other construction in the public rights-of-way shall be performed in accordance with all applicable state, federal, and city regulations.
b. 
Interference with use of property.
All construction within public rights-of-way shall be undertaken so as to minimize interference with the use of public and private property and in accordance with any lawful direction given by the city under the police and regulatory powers of the city.
c. 
Construction permits.
Before commencing any work which involves the construction, installation, expansion, repair, removal, or maintenance of network facilities within a public right-of-way, a licensee shall apply for and obtain a construction permit therefor; provided, however, acquisition of construction permits shall not be required for any such work which does not involve the alteration or disturbance of the surface of the right-of-way. Each permit application shall include a written work description, including construction drawings showing the network facilities' location (or proposed location), and the estimated depth of the network facilities (existing and proposed) in the immediate area of the proposed new construction. Such drawings shall be reviewed by the city engineer and, if disapproved, returned with comments setting forth the reasons for such disapproval. Approvals shall not be unreasonably withheld or delayed. Except as otherwise provided above, licensees shall not commence any such work until applicable construction permits have been approved therefor. Upon completion of any such work, the licensee shall promptly restore the surface of the affected public right-of-way to a condition which equals or exceeds its condition prior to such construction. To such end, the licensee shall replace excavated areas with the same type of materials as those removed, unless alternate equivalent materials are approved by the city. Any excavated areas showing depressions within one year following such work shall be restored by the licensee. Licensees may excavate public rights-of-way only for the purpose of, and to the extent reasonably required for, the construction, installation, expansion, repair, removal, or maintenance of its network facilities. Review and approval by the city of construction permits as provided herein shall not constitute any representation or warranty regarding the sufficiency of design or construction of the network facilities.
d. 
Emergency repairs; restoration of service.
Notwithstanding the foregoing subsection (d)(3)c. of this section, during emergency situations where, in the good faith judgment of a licensee, failure to act immediately could jeopardize public health, safety, or general welfare, or in situations where a repair is necessary to restore service to a customer, licensees may perform repairs to facilities within public rights-of-way which involve the alteration or disturbance of the surface of such public right-of-way, without prior notification to the city. In such cases, the licensee shall notify the director of public works for the city by the close of business on the next business day, stating the nature of such repairs and, if not completed, the length of time estimated to complete same. The licensee shall apply for the required approvals as soon as reasonably practicable, and any work performed that is not consistent with then-applicable city standards shall be corrected upon notice thereof from the city.
e. 
Routine maintenance.
Routine maintenance on network facilities located within public rights-of-way shall be conducted in a manner that is consistent with then-applicable city regulations governing such work, if any.
f. 
Obstructions of traffic.
Any obstruction of vehicular or pedestrian traffic resulting from construction or repair activities of a licensee, other than for emergency repairs, shall require prior notification to the director of public works of the city. Any such work shall be performed in a manner calculated to cause the least inconvenience to the city and the public as is reasonably possible under the circumstances. When a licensee performs or causes to be performed any work over or across a public street or sidewalk, or so closely adjacent thereto as to create hazards for the public or itself, the licensee shall provide construction and maintenance signs and sufficient barricades and flagmen at such sites as are reasonably necessary to protect the public and the licensee's equipment and workers. The application of such traffic-control devices shall be consistent with the standards and provisions of the latest edition of the Texas Manual on Uniform Traffic Control Devices. Appropriate warning lights shall be used at all construction and maintenance zones where one or more traffic lanes are being obstructed during nighttime conditions.
g. 
Closing of streets.
If a licensee's work requires the obstruction of any street for a period longer than 30 minutes, the closure shall be performed in a manner approved by the director of public works. The licensee shall not wholly close any public street, but shall at all times maintain a route of travel along and within any roadway that is within a public right-of-way; provided that, in cases of an emergency, the director of public works may authorize the temporary closing of a public street or sidewalk to allow the licensee to complete such emergency repairs if, in the opinion of the director of public works, such closing is necessary to protect the safety of the general public.
h. 
Construction drawings.
Within 120 days following completion of each segment of its network facilities, or within 120 days following any material alteration or modification thereto, each licensee shall supply the city with a complete set of construction drawings for that segment, or for the material alteration or modification thereof, unless the licensee certifies to the city, in writing, that such construction was completed in accordance with the construction plans filed pursuant to subsection (d)(3)c. of this section, in which case such construction plans shall be marked accordingly by the city and filed as the "permanent construction drawings." For the purposes hereof, a material alteration or modification of a network facility shall be deemed to have occurred if such alteration or modification would render the existing construction drawings inaccurate and/or misleading regarding the location of a structural component thereof. Such drawings shall be of sufficient detail to allow the city to determine the location of the licensee's network facilities with reasonable accuracy. In lieu of print documents, a licensee may, upon advance reasonable request, provide such drawings and maps by other mediums, including electronic mediums, provided the city has the capability to access such information.
(4) 
Conservation of public rights-of-way.
a. 
To the extent the city may be authorized by state or federal law to do so, and to the extent reasonable under the circumstances then existing, the city may require a licensee to attach portions of their facilities to other facilities within the public rights-of-way owned and maintained by other persons. A licensee shall not be required to attach its facilities to the facilities of such other persons if it is shown that such licensee would be subjected thereby to increased risks of interruption to its service, to increased liability for accidents, or to unreasonable delays in construction or availability of service, or if the facilities of such other person are not of the character, design, or construction required by, or are not being maintained in accordance with, current practice, or are not available to the licensee on reasonable terms, including, without limitation, reasonable fees.
b. 
Insofar as is practical to do so, licensees shall use existing network facilities in the provision of their services; provided, however, nothing contained herein shall be construed as limiting a telecommunications provider from expanding its facilities to accommodate future growth and development. Licensees shall provide information to the city relating to the location and/or operation of their network facilities or services as may be reasonably necessary for municipal planning purposes.
(5) 
Relocation or removal of facilities.
a. 
A licensee may be required to lower, place underground, relocate, or remove any network facility within any public right-of-way, without cost to the city, if reasonably necessary, as determined by the city council, to abate a condition actually or potentially dangerous to public health or safety, or as may be reasonably necessary to accommodate the construction, repair, maintenance, removal, or installation of any city or other governmental entity's publicly funded project within the city in, upon, or under public rights-of-way, including, without limitation, street construction and widening, water, sanitary sewer, storm drains, street lights, and traffic signal conduits, or any other public facilities in, upon, or under the public rights-of-way. In the alternative, where the city council determines it to be feasible, a licensee may be allowed to pay the additional costs incurred for the design and/or construction of any such public works project in a manner that would avoid the necessity of relocation or removal of the network facilities. A licensee shall be provided the opportunity to collaborate in advance with the city and/or propose alternatives in order to minimize cost, better schedule the work, and accommodate suitable refinements and/or joint work with others.
b. 
In the event of any such requirement for lowering, placing underground, relocating, or removing network facilities as herein provided, the licensee shall complete same as soon as is reasonably practicable following written notice thereof by the city.
(6) 
Timely completion.
If a licensee fails to either:
a. 
Commence or thereafter diligently prosecute any repair, refilling, lowering, relocation, removal, or other work required by the city; or
b. 
Diligently complete any work that disturbs a public right-of-way;
the city may cause the work to be done or completed at the expense of the licensee and may recover all such expense from the licensee, together with all costs and reasonable attorneys fees. Notwithstanding the foregoing, a licensee shall be entitled to notice an opportunity to cure during the cure period described and set forth in section 30-58(b) hereunder, and shall not be liable for any costs under this section unless such licensee fails to timely complete during such cure period.
(7) 
Abandonment of obsolete network facilities.
Licensees shall remove network facilities when such network facilities are obsolete, are no longer in service, and either create visual blight or create a nuisance to the public; provided, however, a licensee shall not be required to remove any network facility for which renovation or restoration is planned by a licensee, and which renovation or restoration is completed within a reasonable period of time following abandonment. Provided further, no network facility, or any material portion thereof, which is being utilized for telecommunications services shall be deemed to be abandoned. When permanent structures in public rights-of-way are removed or abandoned, the city shall be notified in writing of such removal or abandonment. The director of public works may direct such remedial measures as the director may determine are necessary for public safety and the integrity of public rights-of-way.
(8) 
Bonding.
A licensee shall comply with all applicable regulations of the city relating to the provision of bonds or other security which may be required in connection with work in public rights-of-way.
(9) 
Temporary rearrangement of aerial wires and cables.
Upon request, a licensee shall remove or raise or lower its aerial network facilities temporarily to permit the moving of houses or other bulky structures. The expense of such temporary rearrangements shall be paid by the party or parties requesting same, excluding requests by the city. The licensee may require payment in advance. The licensee shall be given a reasonable amount of advance notice to provide for such rearrangement, but in no event shall such notice be required to exceed 30 days.
(10) 
Tree trimming.
A licensee is authorized to trim trees upon and overhanging public rights-of-way to the extent reasonably necessary to prevent the branches thereof from coming in contact with the licensee's network facilities. At the option of the city, a licensee may be required to conduct tree trimming under the supervision and direction of the city through the city official to whom such duty has been or may be delegated.
(11) 
Term.
The term of each license granted pursuant hereto shall be as set forth in the license ordinance, but shall not exceed ten years.
(Ordinance 990720-1, sec. 5, adopted 7/20/1999; Ordinance adopting 2025 Code)
(a) 
Licensee fees for providers of wired telecommunications services.
Licensees using public rights-of-way for the provision of wired telecommunications services shall pay to the city a license fee that is calculated by applying a monthly charge for each access line owned, placed, operated, controlled or maintained by the licensee, during the month to which the licensee fee applies, for use by an end-user or for another provider that uses the licensee's services or network facilities for the provision of telecommunications services within the city. With regard to persons leasing, reselling, or otherwise using the licensee's access lines, if the licensee does not have sufficient information to determine the appropriate access line type, and, thus, the appropriate fee rate to apply, then the higher line fee shall apply until such time as the person using the access lines provides to the licensee sufficient written information to determine the correct line fee. Notwithstanding the foregoing, a licensee shall not be liable for underpayment of license fees resulting from the licensee's reliance upon the written information provided by any such person using the licensee's service or facilities for the provision of telecommunications services to end-user customers. The license fee payable to the city shall be the sum total of the monthly charges to be applied to access lines, on a calendar month basis, as currently established or as hereafter adopted by resolution of the city council from time to time.
(1) 
Payment due dates; calculation report; access lines.
License fees shall be paid quarterly, with such payments due and payable on or before the 45th day following the end of the calendar quarter for which such payments apply. With every quarterly remittance, each licensee shall file a written report showing the number and type of access lines owned or placed and maintained by the licensee within the city that are activated for end-user customers and other telecommunications providers at month's end, for each of the three calendar months to which such remittance applies. Such report shall specifically identify access lines owned, placed, operated, controlled, or maintained by the licensee that are leased and/or used by persons who are not end-user customers. Such report shall show the number of access lines by category, to the extent known. The report shall be used solely for the purpose of verifying the number of the licensee's access lines serving premises within the city.
(2) 
Exclusions for certain economically disadvantaged customers.
Lines terminating at customers' premises that are billed as "Lifeline," "Tel-Assistance," or other services similarly discounted for the purpose of advancing universal service to the economically disadvantaged shall not be included in the count of access lines for which the license fee is calculated.
(3) 
Leased network facilities.
Notwithstanding any other provision contained in this article to the contrary, a licensee shall not be required to include in its monthly count of access lines, and shall not be required to remit a license fee to the city based on, access lines that are resold, leased, or otherwise provided to another person for consideration if:
a. 
The other person is operating pursuant to a valid license under this article; and
b. 
The other person has furnished the licensee with adequate proof that the person intends to include the leased access lines in its monthly count to the city, the person intends to remit to the city a license fee based on those leased access lines, and the city has approved the arrangement.
(b) 
License fees for providers of wireless telecommunications services.
Licensees using public rights-of-way for the provision of wireless telecommunications services shall pay to the city a license fee that is calculated by applying a monthly charge calculated in accordance with one of the following methods described in this section:
(1) 
Access line method.
Licensees may elect to pay a license fee that is calculated by applying a monthly charge for each access line to end-user customers within the city that use the licensee's services or network facilities for the provision of telecommunications services. A monthly charge shall be applied for each access line to an end-user customer having a billing address within the city. The license fee payable to the city shall be the sum total of the monthly charges to be applied to access lines, on a calendar month basis, as currently established or as hereafter adopted by resolution of the city council from time to time.
(2) 
Gross revenue method.
If the license fee provided for in subsection (b)(1) of this section would result in a fee which exceeds four percent of the applicable licensee's gross revenues from subscribers within the city, such licensee may pay a license fee which equals four percent of the gross revenues received by such licensee from end-user customers within the city. For the purposes hereof, the term "gross revenues" shall mean the gross dollar amounts received by the licensee for wireless telecommunications services provided to end-user customers with billing addresses in the city, but excluding:
a. 
The monthly charges collected pursuant to this section;
b. 
Local, state, or federal taxes collected by the licensee that have been billed to subscribers and separately stated on subscribers' bills; and
c. 
Uncollectible revenues.
(3) 
Facilities charge method.
A licensee providing wireless telecommunications services within the city which does not occupy more than 500 linear feet, 200 square feet, or 100 cubic feet of the public rights-of-way for the location of its network facilities may pay an annual license fee based on the actual network facilities located within such public rights-of-way. Such license fees shall be calculated in accordance with public right-of-way use fee schedules as may be adopted by the city council from time to time and in effect at the time the applicable license ordinance is adopted.
(4) 
Payment due dates; calculation report.
License fees shall be paid quarterly, with such payments due and payable on or before the 45th day following the end of the calendar quarter for which such payments apply. With every quarterly remittance, each licensee shall file a written report showing the number of subscribers within the city that are served by the licensee, the gross revenues received by the licensee, or an inventory of network facilities in the city's public right-of-way, as applicable, for each of the three calendar months to which such remittance applies. Such report shall specifically identify any network facilities owned, operated, or maintained by the licensee that are leased and/or used by persons who are not end-users. Such report shall show the number of subscribers of such persons leasing or using such facilities, if any, to the extent known. The report shall be used solely for the purpose of verifying the license fee payable to the city, as herein provided.
(5) 
Exclusions for certain economically disadvantaged customers.
Subscribers that are billed as "Lifeline," "Tel-Assistance," or for other services similarly discounted for the purpose of advancing universal service to the economically disadvantaged shall not be included in the count of subscribers for which the license fee is calculated.
(6) 
Leased network facilities.
Notwithstanding any other provision contained in this article to the contrary, a licensee shall not be required to include in its monthly count of subscribers, and shall not be required to remit a license fee to the city based on, subscribers that are served by network facilities resold, leased, or otherwise provided to another person for consideration if:
a. 
The other person is operating pursuant to a valid license under this article; and
b. 
The other person has furnished the licensee with adequate proof that the person intends to include its subscribers in its monthly count to the city, the person intends to remit to the city a license fee based on those subscribers, and the city has approved the arrangement.
(c) 
License fees for providers not serving customers within the city.
Providers using network facilities within public rights-of-way, but which serve no customers within the city, other than itself, shall pay an annual license fee based on the facilities located within such public rights-of-way. Such license fees shall be calculated in accordance with public right-of-way use fee schedules as may be adopted by the city council from time to time and in effect at the time the applicable license ordinance is adopted. This fee shall be due on or before July 15 of every year during the term of the license, prorated as applicable. A report shall be submitted with each annual payment showing the calculation of the payment, including necessary descriptions of the network facilities, as applicable.
(d) 
Reporting requirements.
The forms required to be filed pursuant to subsections (a)(1) and (b)(1) of this section and this subsection (d) shall be accompanied by a written statement, executed by a duly authorized officer or representative of the licensee, certifying that the information contained in such report is true and correct, to the best of the officer's or representative's knowledge and belief, after due inquiry. A copy of the completed forms and the accompanying certified statements shall be filed with the city secretary. Such forms shall be deemed confidential to the extent permitted by law. Upon written request, licensees shall verify the information contained in such forms and, upon reasonable advance notice, all non-customer specific records and other documents required for 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.
(e) 
Late payments; default.
Payments received after their due date shall incur interest at the rate of ten percent per annum, compounded daily. Notwithstanding the foregoing, failure of a licensee to make a full payment within 30 days following the due date shall constitute an event of default.
(f) 
Circumvention of license fees prohibited.
Licensees shall not circumvent payment of license fees by bartering, by transferring rights, or by other means that result in undercounting the number of access lines, or subscribers, as applicable, as required herein. Capacity or services may be bartered if the imputed access lines, or subscribers, are reported in accordance with this article.
(g) 
Uncollectibles.
A licensee shall not be obligated to pay the city for any access lines or subscribers for which revenues remain uncollectible.
(h) 
No release.
No acceptance by the city of any payment by a licensee shall be construed as a release of, or an accord or satisfaction of, any claim that the city might have for further or additional sums payable under the terms of this article or a license ordinance, or for any other performance or obligation of the licensee.
(i) 
No other fees.
License fees paid hereunder shall be in lieu of any permit, license, approval, inspection, or other similar fee or charge, including, but not limited to, all general business license fees customarily assessed by the city for the use of the public rights-of-way against persons operating businesses similar to that of licensees. Further, such license fees shall constitute full compensation to the city for all of a licensee's network 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 network facilities are not used in the calculation of a license fee.
(j) 
Records.
Licensees shall retain and maintain all records, accounts, and financial and operating reports necessary to establish compliance with the terms of this article, for a period of not less than five years.
(Ordinance 990720-1, sec. 6, adopted 7/20/1999)
(a) 
Indemnity.
Each licensee shall indemnify and hold the city harmless as follows:
(1) 
The licensee shall promptly defend, indemnify, and hold the city harmless from and against all damages, costs, losses, or expenses:
a. 
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 licensee's acts or omissions; and
b. 
From and against any and all claims, demands, suits, causes of action, and judgments for:
1. 
Damage to or loss of the property of any person (including, but not limited to, the licensee, its agents, officers, employees, and subcontractors, city, its agents, officers, and employees, and third parties); and/or
2. 
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 licensee, licensee's subcontractors, city's officers, agents, and employees, and third parties), arising out of, incident to, concerning, or resulting from the negligent or willful acts or omissions of the licensee, its agents, employees, and/or subcontractors, in the performance of activities pursuant to this article.
(2) 
This indemnity provision is intended to include liability arising from the city's alleged negligence, but only to the extent such liability arises out of a claim or claims that the city was negligent in granting this license, in regulating the conduct of the licensee under this license, or in failing to prevent the licensee from acting in a negligent or wrongful manner.
(3) 
The indemnity provision set forth in subsection (a)(1) of this section is:
a. 
Solely for the benefit of the city and the licensee and is not intended to create or grant any rights, contractual or otherwise, to any other person or entity;
b. 
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 licensees under V.T.C.A., Utilities Code sections 54.204—54.206; and
c. 
Subject to the continued applicability of the provisions of V.T.C.A., Utilities Code sections 54.204—54.206, as set forth in subsection (a)(2) of this section, the provisions of the indemnity shall survive the expiration of this article.
(4) 
If the authority granted by this article is terminated or is not renewed, and the licensee does not remove its network facilities from the public rights-of-way, the licensee shall continue to indemnify and hold harmless the city pursuant to this section as long as its facilities are located in the public rights-of-way, and for said purpose, this section shall survive this license ordinance.
(b) 
Insurance.
Licensees shall procure and maintain, during the term of their licenses, the following insurance coverage, and the respective policies thereof shall cover all risks related to the licensee's use and occupancy of the public rights-of-way and all other risks associated with their license.
(1) 
Description of insurance coverage and limits.
Insurance coverage limits shall be as currently established or as hereafter adopted by resolution of the city council from time to time.
(2) 
Other insurance related requirements.
a. 
The city shall be named as an additional insured, by endorsement, on all applicable insurance policies;
b. 
Applicable insurance policies shall each be endorsed with a waiver of subrogation in favor of the city;
c. 
Insurers shall have a rating of B plus or better and a financial size of Class VI or better, according to the current year's best rating. Each insurer shall be responsible and reputable, must have financial capability consistent with the risks covered, and shall be subject to approval by the city council with regard to conformance with these requirements, which approval shall not be unreasonably withheld;
d. 
Deductible limits on insurance policies and/or self-insured retention exceeding $50,000.00 shall require approval by the city council;
e. 
Certificates of insurance shall state that the city shall be notified a minimum of 30 days prior to the insurers' action, in the event of cancellation, non-renewal, or reduction in policy limits, regarding any policy required hereby;
f. 
Full limits of insurance required in subsection (b)(1) of this section shall be available for claims arising out of a licensee's applicable license ordinance;
g. 
Certificates of insurance shall be provided by a licensee to the city prior to the installation, construction, or operation of any network facilities within public rights-of-way; provided, however, any licensee lawfully operating network facilities within public rights-of-way at the time of adoption of such licensee's applicable license ordinance shall provide such certificates of insurance within 30 days following the effective date of such license ordinance. Any failure of the city to request such documentation shall not be construed as a waiver of the insurance requirements specified herein;
h. 
The city shall be entitled, upon request and without incurring expense, to review the insurance policies (or certified copies thereof), including endorsements thereto, which relate to the insurance requirements specified herein, and, at its discretion, to require proof of payment for policy premiums;
i. 
The city shall not be responsible for paying the cost of insurance coverage required herein;
j. 
Notice of any actual or potential claim and/or litigation that would affect insurance coverage required herein shall be provided to the city in a timely manner. In the alternative, a policy may, by endorsement, establish a policy aggregate to establish compliance with the requirements set forth herein;
k. 
Each insurance policy required herein shall be primary insurance to any other insurance available to the city with respect to any claims arising hereunder;
l. 
A licensee shall either require its contractors to maintain the same insurance coverage and limits thereof as specified herein or such coverage on the licensee's contractors shall be provided by the licensee; and
m. 
A licensee may elect to self-insure to provide the insurance coverage required hereunder, subject to the restrictions set forth in this subsection, provided that the licensee submits to the city copies of its certificates of self-insurance from the state department of insurance and of its most recent audited financial statements, showing self-insurance reserves or other assets sufficient to pay judgments equal to the limits set forth above. A licensee shall also provide to the city documentation evidencing its process for reviewing and paying claims. The city shall be protected by a licensee's self-insurance to the same extent as an additional insured on a policy issued by an insurance company. If, during the term of a license granted hereunder, a licensee's self-insurance program ceases, or a licensee's assets or reserves are no longer sufficient to comply with the above coverage requirements, the licensee shall immediately notify the city of such lapse of coverage, and the licensee shall obtain commercial insurance in accordance with the above requirements within 30 days following such notice.
(c) 
No right of recovery.
Insurers shall have no right of recovery against the city, it being the intention hereby that the insurance policies required herein shall protect licensees and the city, and shall be primary coverage for all losses covered by such policies. Such policies shall provide that the issuing company waives all right of recovery by way of subrogation or assignment against the city in connection with any damage covered thereby. Companies issuing such policies shall have no recourse against the city for payment of any premiums or assessments, same being at the sole risk of the licensees.
(d) 
Lapse of coverage an event of default.
A licensee shall continuously and without interruption maintain in full force and effect the required insurance coverage and limits set forth in this section. Failure to maintain such insurance shall constitute an event of default and the city, at its option, may terminate any license granted pursuant hereto, in accordance with the provisions of section 30-58.
(Ordinance 990720-1, sec. 7, adopted 7/20/1999)
(a) 
Events of default.
The occurrence of any of the following shall constitute an event of default by a licensee:
(1) 
Failure of a licensee to comply with any material term, condition, or provision of this article or the license ordinance applicable to such licensee;
(2) 
Any intentional false statement or misrepresentation as to a material fact by an applicant;
(3) 
A licensee's loss of or failure to obtain licenses, permits, and certifications lawfully required by any statute, ordinance, rule, or regulation of any regulatory body having jurisdiction over the licensee's operations and to pay all fees associated therewith; and
(4) 
An act or omission of a licensee constituting a knowing or intentional evasion of payment of any fee payable hereunder.
(b) 
Cure period.
If a licensee continues to violate or fail to comply with a material term or provision of this article for a period of 30 days following notification in writing by the city to cure such specific alleged violation or failure to comply, then the city may follow the procedures set forth herein to declare that the licensee has terminated all rights and privileges consented to pursuant to this article and the licensee's license ordinance; provided, however, if a licensee is alleged to be in violation of any material provision of this article, other than the payment of a fee due hereunder, and if the licensee commences efforts to cure such alleged violation within 30 days following receipt of written notice thereof and shall thereafter prosecute such curative efforts with reasonable diligence until such curative efforts are completed, then such alleged violation shall cease to exist and no further action shall be taken at that time.
(Ordinance 990720-1, sec. 8, adopted 7/20/1999)
(a) 
Prohibition.
Any right, privilege, and license granted pursuant hereto may not be assigned, in whole or in part, without the prior consent of the city expressed by resolution or ordinance, and then only under such conditions as may therein be prescribed, except as otherwise provided in subsection (d) of this section. No such consent by the city shall be unreasonably withheld, conditioned, or delayed. No assignment in law or otherwise shall be effective until the assignee has filed with the city an instrument, duly executed, reciting the fact of such assignment, accepting the terms hereof and of the license ordinance, and agreeing to comply with all the provisions thereof. A mortgage or other pledge of assets in a bona fide lending transaction shall not be considered an assignment of a license for the purposes of this article.
(b) 
Process.
Upon receipt of a request for consent to an assignment, the city shall diligently investigate the request in a timely manner and place the request on the city council agenda at the earliest practicable time. The city council shall proceed to act on the request within a reasonable period of time.
(c) 
Scope of review.
In reviewing a request for assignment, the city may, to the extent permitted by law, inquire into the legal, technical, and financial qualifications of the prospective assignee, and the licensee shall assist the city in so inquiring. The city may condition said assignment upon such terms and conditions as it deems reasonably necessary, provided its approval and any such terms and conditions so attached shall be related to the legal, technical, and financial qualifications of the prospective assignee, as well as the licensee's compliance with the terms hereof.
(d) 
Assignments not requiring approval.
Notwithstanding any other provision contained in this article to the contrary, the prior approval of the city shall not be required for any assignment to:
(1) 
Any entity controlling, controlled by, or under common control with the licensee, as long as such entity has expertise in the operation of the network facilities;
(2) 
Any entity with which the licensee or an affiliate of the licensee shares joint ownership of the network facilities; or
(3) 
Any entity that is a holder of a then-current comprehensive telecommunications (as distinguished from cable services) franchise or license ordinance; provided, however, no such assignment shall be effective until the licensee shall have given written notice thereof to the city.
(e) 
Release.
Upon receiving the city's consent to an assignment, or, in the event of an assignment qualifying under subsection (d) of this section, upon giving notice under subsection (d) of this section, a licensee shall be relieved of all conditions, obligations, and liabilities arising or which might arise hereunder that are assumed by the assignee.
(Ordinance 990720-1, sec. 9, adopted 7/20/1999)
(a) 
Work by others, construction by abutting owners, and alterations to conform with public improvements.
(1) 
The city reserves the right to lay and permit to be laid, sewer, gas, water, and other pipe lines or cables and conduits, and to do and permit to be done, any underground and overhead work, and any attachment, restructuring, or changes in aerial facilities that may be deemed necessary or proper by the city in, across, along, over, or under any public right-of-way occupied by providers, 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 providers for any damages not directly caused by the misconduct or gross negligence of the city; provided, however, nothing herein shall relieve any other person or entity, including any contractor, subcontractor, or agent from liability for damage to a licensee's facilities.
(2) 
If during a license term the city authorizes abutting landowners to occupy space over, under, or across the surface of any public right-of-way, such grant to an abutting landowner shall be subject to the rights herein granted to a licensee. In the event that the city shall close or abandon any public right-of-way, which contains any portion of a licensee's network facilities, any conveyance of land contained in such closed or abandoned public right-of-way shall be subject to the rights of a licensee hereunder and under the licensee's license ordinance.
(3) 
Providers shall be liable for the acts or omissions of any person used by such providers when such person is involved directly or indirectly in the construction and installation of such providers' network facilities to the same extent as if the acts or omissions of such person were the acts or omissions of the provider.
(b) 
Annexation and disannexation.
Within 30 days following the date of passage of any action effecting the annexation of any property to, or the disannexation of any property from, the city's corporate boundaries, the city shall furnish licensees 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 article, a licensee shall start including or excluding access lines or subscribers, as applicable, within the affected area in the licensee's count of access lines or subscribers, as applicable, on the effective date designated by the comptroller of public accounts of the state for the imposition of state local sales and use taxes; but in no case less than 30 days following the date the licensee is notified by the city of the annexation or disannexation.
(c) 
Confidential records.
Upon the notification by a licensee to the city of the confidential nature of any information, report, document, or writing, the city shall maintain the confidentiality of such information, report, document, or writing to the extent permitted by law. Upon receipt by the city of requests for the licensee's confidential information, report, document, or writing, the city shall notify the licensee of the request, in writing. Unless otherwise approved in writing by the applicable licensee, the city shall request an attorney general's opinion before disclosing any confidential information, report, document, or writing, and will furnish the licensee with copies of such requests.
(d) 
Abandonment of public rights-of-way.
If the city conveys, closes, abandons, or releases its interest in or authority over any public right-of-way containing network facilities installed or operated pursuant to a license ordinance, any such conveyance, closure, abandonment, or release shall be subject to the rights of the licensee under the license ordinance.
(e) 
Right to audit.
The city reserves the right to review and audit a licensee's books and records to determine if appropriate amounts have been paid to the city hereunder. If any such audit discovers an underpayment due to the city that exceeds five percent of the total amount paid for any quarterly reporting period, then the licensee shall promptly reimburse the city for the actual and reasonable cost of such audit. The provider shall also pay the city all actual amounts of the underpayments as determined by the audit, plus interest as hereinabove provided.
(f) 
Force majeure.
Other than for the failure to pay amounts due and payable under this article, a licensee shall not be in default or be subject to sanction under any provision of this article when its performance is prevented by force majeure. The term "force majeure" means an event caused by strike or other labor problem; embargo; epidemic; act of God; fire; flood; adverse weather conditions, or other major environmental disturbance; act of military authority, or war or civil disorder, provided that such causes are beyond the reasonable control and without the willful act, fault, failure, or negligence of the licensee. Performance is not excused under this section following the end of the applicable event of force majeure.
(g) 
Controlling law.
This article, and any license issued hereunder, shall be governed by the laws of the state and venue for any action hereunder shall be in the county.
(h) 
Effective date of license.
Any license granted hereunder shall be effective upon the adoption of the applicable license ordinance and the filing of necessary certificates of insurance as otherwise required herein.
(Ordinance 990720-1, sec. 10, adopted 7/20/1999)