(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:
means a unit of measurement representing:
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;
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
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.
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.
means the Cable Communications Policy Act of 1984, 47 USC
532 et seq.
means a person providing or offering to provide cable service
within the city as that term is defined in the cable act.
shall have the same meaning provided by the term "cable act."
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.
means the federal agency or its successor agency that is
the regulatory authority over telecommunications providers.
means the compensation payable to the city by a licensee
for the use and occupancy of public rights-of-way.
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.
means a telecommunications provider that has been issued
a license pursuant to a license ordinance.
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.
means any purpose other than a public purpose.
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.
means the state agency having jurisdiction over telecommunications
providers.
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.
means a person who offers telecommunications services to
customers through network facilities located in the public rights-of-way.
means the provision of telecommunications provided through
network facilities, excluding cable services, but which include, without
limitation:
Access lines provided to end users or to other telecommunications
companies for the purpose of voice, data, or non-cable video transmission;
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;
Switched access lines for the distribution of voice, data, and
non-cable video transmission; and
Any other telecommunication services authorized by state or
federal law.
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.
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 flag men 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 addition 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 (a)(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;
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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.
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(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)
(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 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 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 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:
(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 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 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 licensee under this license,
or in failing to prevent 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 §§ 54.204—54.206;
and
(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)
