(a) 
Purpose of article.
The purpose of this article is to:
(1) 
Assist in the management of the public rights-of-way in order to minimize the congestion, inconvenience, visual impact and other adverse effects, and the costs to the citizens resulting from the placement of telecommunications facilities within the public rights-of-way;
(2) 
Govern the provider's use and occupancy of the public rights-of-way;
(3) 
Compensate the city for the private, commercial use and occupancy of the public rights-of-way by telecommunications providers in a nondiscriminatory and competitively neutral manner;
(4) 
Assist the city in its efforts to protect the public health, safety and welfare;
(5) 
Facilitate competition among telecommunications service providers and encourage the universal availability of advanced telecommunications services to all residents and businesses of the city;
(6) 
Conserve the limited physical capacity of the public rights-of-way held in public trust by the city;
(b) 
Reference.
This article may be referred to as the "Telecommunications Ordinance."
(Code 1975, § 20-81)
Subject to the restrictions set forth herein, the city may consent to the nonexclusive right and privilege to use the public rights-of-way in the city by a provider for the operation of access lines in a telecommunications system, consisting of both telecommunications facilities and transmission media. The terms of this article shall apply throughout the city and to all operations of the provider within the city public rights-of-way, and in the public rights-of-way in any newly annexed areas in accordance with section 70-162.
(Code 1975, § 20-82)
(a) 
Application and authority.
This article applies to all telecommunications service providers under Title 47, Chapter 5, Subchapter II of the United States Code (47 USC 201 et seq.) that place transmission media in, on or over public rights-of-way, excluding services provided solely by means of a wireless transmission. No municipal consent granted under this chapter authorizes the provision of any services not covered by Title 47 of the United States Code. Cable service and open video systems as defined in Title VI of the Communications Act of 1934 (Title 47, Chapter 5, Subchapter V-A of the United States Code (47 USC 521 et seq.)) and any other content service are expressly excluded.
(b) 
Use of city utility infrastructure.
The right of a person to apply for or to use city utility infrastructure shall be governed by other provisions of the city Code. The granting of a municipal consent under this chapter does not grant attachment rights or authorize the use of city utility infrastructure.
(Code 1975, § 20-83)
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 within the public rights-of-way extended to the end-user customers network interface within the city that allows delivery of telecommunications service;
(2) 
Each separate transmission path of the transmission media within the city's public rights-of-way that terminates at an end user customers network interface of each loop provided as an unbundled network element to a person pursuant to an agreement under Section 252 of the Federal Telecommunications Act of 1996 (47 USC 252); or
(3) 
Each termination point of a nonswitched telephone or other circuit consisting of transmission media connecting specific locations identified by, and provided to, the end-user for the delivery of nonswitched telecommunications service within the city.
Access line fee
means the amount in section 70-151 to be applied to each access line on a monthly basis for the calculation of the total amount to be paid to the city by the provider and/or any person using the facilities of provider for the creation of telecommunications service.
Affiliate
means a person who controls, is controlled by, or is under common control with a provider. The term "affiliate" does not include a person who serves end use customers by means of a wireless transmission. There is a rebuttable presumption of control if a provider owns 25 percent or more of the affiliate's stock or assets.
Certificated telecommunications utility
means any entity that has been granted or applied for a certificate under V.T.C.A., Utilities Code ch. 54 or other successor-authorizing certificate to provide local exchange telephone service.
City
means the City of North Richland Hills, Texas. As used throughout this article, the term "city" also includes the designated agent of the city.
City manager
means the city manager of the city or the city manager's designee.
Direction of the city
means all ordinances, laws, rules, resolutions, and regulations of the city that are not inconsistent with this article and that are now in force or may hereafter be passed and adopted.
Facilities
means any and all of the provider's duct spaces, manholes, poles, conduits, underground and overhead passageways and other equipment, structures, plant and appurtenances and all associated transmission media.
Municipal consent
means the individual grant to use the public rights-of-way issued by the city and accepted by the individual providers under this chapter governing the provider's use of the public rights-of-way and the payment of compensation.
Person
means a natural person (an individual), corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company or association, and other such entity.
Provider
means a person that delivers telecommunications service within the city to a person by way of a network, including any certificated telecommunications utility and that places facilities in, on or over the public rights-of-way. A provider does not include persons who are authorized by the city to occupy the public rights-of-way in specifically approved routes within the city, unless they also have a municipal consent under this article. To the extent allowed by law, the provider also means a person that does not deliver telecommunications service within the city, but who uses, constructs or maintains facilities or transmission media within the public rights-of-way.
Public rights-of-way
means all present and future public streets, highways, lanes, paths, alleys, sidewalks, boulevards, drives, tunnels, easements or similar property in the city limits in which the city holds a property interest or exercises rights of management or control.
Telecommunications network and network
mean all facilities placed in the public rights-of-way and used to provide telecommunications service to the public.
Telecommunications service
means the providing or offering to provide transmissions between or among points identified by the user, of information of the user's choosing, including voice, video or data, without change in content of the information as sent and received, if the transmissions are accomplished through a telecommunications network. The term "telecommunications service" includes ancillary or adjunct switching services and signal conversions rendered as a function of underlying transmission services, but excludes long distance transmissions (inter-LATA (local access transport area) and intra-LATA toll transmissions). Telecommunications service includes all communications services capable of being provided over a telephone system and certificated to telecommunications providers under V.T.C.A., Utilities Code 11.001 et seq., Public Utility Regulatory Act, and Title II of the Communications Act of 1934, as amended, expressly excluding cable services or open video systems as defined in Title VI of the Communications Act of 1934, as amended. Also excluded are "wireless services" as defined by law.
Transmission media
means any and all of the provider's cables, fibers, wires or other physical devices used to transmit and/or receive communication signals, whether analog, digital or of other characteristic, and whether for voice, data or other purposes.
(Code 1975, § 20-84)
(a) 
Generally.
Prior to placing, reconstructing, or altering facilities in, on or over the public rights-of-way, a provider must obtain a municipal consent from the city.
(b) 
Other applicable city requirements.
The use of public rights-of-way for the delivery of any service not covered by this article is subject to all other applicable city requirements.
(c) 
Operation until expiration or termination.
Any provider with a current, unexpired consent, franchise, agreement or other authorization from the city to use the public rights-of-way that is in effect at the time this article takes effect shall continue to operate under and comply with that grant until the grant expires or until it is terminated by mutual agreement of the city and the provider and a municipal consent under this article is granted and in effect.
(Code 1975, § 20-85)
(a) 
Submission of application.
A person must submit an application to the city manager to initiate the process to obtain a municipal consent.
(b) 
Form of application; contents.
The application must be on a form prescribed by the city manager, and it must include the following:
(1) 
The identity of the applicant, including all affiliates of the applicant that may have physical control of the network, to the extent known at the time of the application;
(2) 
A general description of the services to be provided initially;
(3) 
With respect to post-application construction, a route map of the applicant's proposed network, if any;
(4) 
A description of the effect on the rights-of-way, of any post-application construction to the extent known, but not including routine maintenance and construction for additions to existing networks, except as may be required in section 70-157 including:
a. 
The location and route required for applicants proposed telecommunications network.
b. 
The location of all overhead and underground public utility, telecommunication, cable, water, sewer, drainage and other facilities in the rights-of-way along the proposed route.
c. 
The specific trees, structures, improvements, facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate;
(5) 
While not a requirement for the issuance of a municipal consent, if applicable, the applicant shall provide:
a. 
Evidence that the applicant holds or has applied for a state public utility commission certificate and information to establish that the applicant will obtain all other governmental approvals and permits prior to construction.
b. 
Certification or other documentation to evidence the state public utility commission or any other required governmental approval showing compliance with E911 requirements of V.T.C.A., Health and Safety Code chs. 771 and 772 on emergency communications, and the Texas Public Utility Commission Substantive Rules on interconnection; and
(6) 
Such other and further information as may be reasonably requested by the city manager as it relates to the use of the public rights-of-way.
(c) 
Application fee.
Each applicant that shall submit a nonrefundable application fee as established in appendix A with the application, with a credit for such amount on its first quarterly payment due under section 70-152.
(d) 
Review of application.
The city manager shall review an application submitted under this article and shall recommend to the city council that it grant or deny the application. The city manager shall make recommendation to the city council as soon as practicable, but no later than the 90th day after a completed application has been filed. Upon mutual written agreement between the city and the provider, action on an application may be postponed for one or more periods not exceeding 30 days each.
(e) 
Action on application.
Except for delay caused by the applicant, the city council must take an initial action on the city manager's recommendation within 45 days after receipt by the council of the city manager's recommendation or the city manager's recommendation to grant an application shall be deemed approved. No city council action is required to confirm a denial recommendation, except acknowledgment of receipt of the recommendation.
(Code 1975, § 20-86)
(a) 
Preparation.
If the city manager finds that the application meets the requirements of this article, the city manager shall request the city attorney or his designee or as otherwise designated by the city manager to prepare a municipal consent ordinance for the city council's consideration.
(b) 
Requirements.
A municipal consent ordinance submitted to the city council must include the following provisions:
(1) 
A term of not more than five years for the municipal consent;
(2) 
A requirement that the provider substantially comply with this article;
(3) 
A requirement that the provider's municipal consent is subject to termination by the city council, after notice and hearing, for the provider's failure to comply with this chapter or on a showing that the provider has breached the terms of the municipal consent;
(4) 
A provision that incorporates the requirements of section 70-154 (transfer);
(5) 
A provision that incorporates the requirements of sections 70-157 (construction obligations), 70-158 (conditions of public rights-of-way occupancy), and 70-159 (insurance requirements) of this article, if applicable;
(c) 
Responsibility for sufficiency of design.
Review and approval by the city does not constitute a guarantee of sufficiency of the design of the telecommunications network. The applicant retains full responsibility for the adequacy of the design of the telecommunications network.
(Code 1975, § 20-87)
A person whose application for a municipal consent is denied, or whose application is not considered by the city council within a reasonable time after the city manager submits a recommendation under section 70-147 or whose municipal consent is terminated may petition the city council for reconsideration before seeking judicial remedies. A petition for reconsideration is considered denied if the city council does not act within 60 days after the petition is filed with the city secretary.
(Code 1975, § 20-88)
(a) 
Generally.
The city manager shall administer this article and enforce compliance with a municipal consent conveyed under this article.
(b) 
Report of information; form.
A provider shall report information related to the use of the public rights-of-way that the city manager requires in the form and manner prescribed by the city manager.
(c) 
Report of noncompliance.
The city manager shall report to the city council upon the determination that a provider has failed to comply with this article.
(Code 1975, § 20-89)
(a) 
Provider constructing, operating, maintaining, etc., facilities in public rights-of-way.
Sections 70-157 (construction obligations), 70-158 (conditions of public rights-of-way occupancy) and 70-159 (insurance requirements) apply only to a provider that constructs, operates, maintains, owns or controls facilities in the public rights-of-way.
(b) 
Indemnification.
Section 70-160 (indemnity) applies to a provider that has a property interest in a network.
(Code 1975, § 20-90)
A provider shall compensate the city by payment of the fees as provided below:
(1) 
Access line fee calculation.
To compensate the city for the use of the rights-of-way, a provider whose telecommunications network is used to serve persons in the city shall pay the city a monthly fee to be calculated as provided below for each access line owned or used by the provider, as calculated as of month-end, that is activated for use by an end user customer of the provider or of another person as a certificated telecommunications utility, by lease or otherwise, subject to subsection (6) of this section or of any other person. The access line fee calculation amount shall be as follows:
a. 
Following the effective date of the municipal consent, a provider shall submit to the city manager on a quarterly basis, a certified statement together with the access line fee payment under section 70-152, indicating the number of access lines used to provide telecommunications service at month end, for each month of the quarter and for each customer class identified herein. The statement shall be provided on a form prescribed by the city manager.
b. 
For each month of the quarter following the effective date of the municipal consent, a provider shall pay an access line fee, which is based upon its number of access lines calculated as established in appendix A. The city reserves the right to make reasonable adjustments to the access line fee, with 180 days' notice, but not to exceed ten percent in any one year. Amounts appearing above are used to calculate the total compensation due the city and are not to be construed as the setting of a charge for end-users. To the extent allowed by law, and not at the direction or request of the city, pursuant to V.T.C.A., Utilities Code § 54.206, a provider has the discretion to collect the access line fee imposed by the city pursuant to this article through a pro rata charge to the customers in the boundaries of the city, including from any other persons who are leasing, reselling, rebundling or otherwise using the providers access lines to provide telecommunications service. For purposes of this section only, lines terminating at customers with "lifeline," "tel-assistance," or other service that is required to be similarly discounted pursuant to state or federal law or regulation for the purpose of advancing universal service to the economically disadvantaged shall not be included in the lines upon which the fee is calculated, but the provider shall provide information on the number of such lines upon request by the city.
(2) 
Number of access lines.
Subject to city's agreement not to disclose this information unless required by law, the provider agrees to provide annually or as requested by the city, within a reasonable time after receipt of the city's written request, a report showing the number of access lines being maintained or operated by the provider that are serving premises within the city. The city agrees that the report shall be used solely for the purposes of verifying the number of provider's access lines serving premises within the city. Upon written request, the provider shall verify the information in the report and, upon reasonable advance notice, all noncustomer specific records and other documents required for such verification shall be subject to inspection by the city expressly excluding any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 USC 2701 et seq.
(3) 
Minimum annual fee.
Notwithstanding any other provision in this article, for all new installations of facilities placed in, on or under the public rights-of-way from the effective date of the municipal consent, and for each calendar year period thereafter, the provider shall pay the city a minimum annual public street crossing fee of either the greater of:
a. 
The access line fee; or
b. 
The fee as established in appendix A.
This minimum annual fee is to compensate the city for the reasonable rental value of the public rights-of-way used by the provider, and to recover the administrative cost in monitoring and enforcing the provisions of this article and of the municipal consent. Each municipal consent shall provide that the minimum fee of subsection (3)b. above may be adjusted once every three years by the city in its sole reasonable discretion to properly reflect the reasonable rental value of the public rights-of-way and administrative cost to the city, but such adjustment shall not exceed $100.00 in any one three-year period.
(4) 
Confidential records.
If the provider notifies the city by a conspicuous written notation of the confidential nature of any information (including, but not limited to, the information in subsection (2) of this section), reports, documents, or writings, the city agrees to maintain the confidentiality of the information, reports, documents, and writings to the extent permitted by law. Upon receipt by the city of requests for the provider's confidential information, reports, documents, or writings, the city shall notify the provider of the request in writing by facsimile transmission. The city shall furnish the provider with copies of all requests for attorney general opinions pertaining to the provider's confidential information, reports, documents or writings. The city shall request an attorney general's opinion before disclosing any confidential information, reports, documents or writings, and shall furnish the provider with copies of attorney general opinion requests as soon as practicable that it may pertain to the providers confidential information, reports, documents or writings.
(5) 
No other fees.
The payments due hereunder shall be in lieu of any construction, building or other permit, approval, inspection, or other similar fees or charges, including, but not limited to, all general business permit fees customarily assessed by the city for the use of the public rights-of-way against persons operating businesses similar to that of a provider. Further, such access line fee shall constitute full compensation to the city for all providers facilities located within the public rights-of-way, including interoffice-transport and other transmission media that do not terminate at an end-user customers network interface device, even though those types of lines are not used in the calculation of the public rights-of-way fee. The compensation paid herein is not in lieu of any generally applicable ad valorem taxes, sales taxes or other generally applicable taxes, fees, development impact fees or charges, or other statutory charges or expenses recoverable under the Texas Public Utility Regulatory Act, V.T.C.A., Utilities Code § 11.001 et seq., or successor statutes.
(6) 
Uncollectibles.
Any other provision of this agreement notwithstanding, the provider shall not be obligated to pay the city for any access lines or private line termination points the revenues for which remain uncollectible.
(7) 
Payments by or use of the network by other telecommunications carriers and providers.
a. 
Direct payment—Facilities provided to other telecommunications service providers.
To the extent allowed by applicable state and federal law, any telecommunications service providers who purchase unbundled network elements or other facilities or services for the purpose of rebundling those facilities and/or services to create telecommunications service for sale to persons within the city must pay to the city the access line fee that is calculated as of month-end by applying the appropriate access line fee, as specified in subsection (1)b. of this section, to each access line created by rebundling telecommunications service or facilities. Direct payment further ensures that the access line fee imposed herein can be applied on a nondiscriminatory basis to all telecommunications service providers that sell telecommunications service within the city. Other provisions of this article notwithstanding, the provider shall not include in its monthly count of access lines any facilities or services provided to other telecommunications service providers for rebundling into telecommunications service, if the telecommunications service provider who is rebundling those facilities for resale has provided a signed statement to the provider that the telecommunications service provider is paying the access line fees applicable to those rebundled services directly to the city. If the provider provides a copy of the signed statement to the city from the rebundler which is acceptable to the city, then the provider is absolved of all responsibility for the access line fees payable on the services, unbundled network facilities, and other facilities rebundled for the creation of telecommunications service for sale within the city by each such rebundler.
b. 
Indirect payments—Public rights-of-way fee application to use of network by others.
With respect to any person leasing, reselling, or otherwise using a provider's access lines, if a provider believes it does not have sufficient information to determine the appropriate rate to apply, then the higher access line fee may be applied until such time as the person using the access lines provides to the provider sufficient written information to determine the correct access line fee. If a person provides sufficient written information for the application of the access line fee, the provider may, at its discretion and not at the city's request, bill the person on the basis of the information provided. The provider shall provide to the city any information regarding the locations to which it is providing service or facilities for use by another person for the provision of telecommunications service to end-user customers, so long as city first obtains written permission of such other person for provider to provide the information to the city. Any other provision of this article notwithstanding, however, a provider shall not be liable for underpayment of access line fees resulting from the providers reliance upon the written information provided by any person who uses providers services or facilities for the provision of telecommunications service to end-user customers.
(Code 1975, § 20-91)
(a) 
Access line fee.
A provider shall remit the access line fee on a quarterly basis together with the certified statement required in section 70-151(1)a. Payment shall be made on or before the 45th day following the close of each calendar quarter for which the payment is calculated and shall be paid by wire transfer to an account designated by the city manager.
(b) 
Minimum fee payment.
This fee per subsection 70-151(3), if applicable, shall be due on January 31 of every year of the consent agreement.
(Code 1975, § 20-92)
(a) 
Generally.
On 30 days' notice to a provider, the city may audit a provider for a period of time to the fullest extent allowed by law. The provider shall furnish information to demonstrate its compliance with the municipal consent and/or other provisions of this article.
(b) 
Books and records; examination.
A provider shall keep complete and accurate books of accounts and records of business and operations that cumulatively reflect the monthly count of all access lines for a period of seven years. The city manager may require the keeping of additional records or accounts that are reasonably necessary for purposes of identifying, accounting for, and reporting the number of access lines used to deliver telecommunication services or for calculation of the payments due hereunder. The city may examine the provider's books and records referred to above, expressly excluding any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 USC 2701 et seq., to the extent such records reasonably relate to providing information to verify compliance with this article and the municipal consent.
(c) 
Maps, plans and other records; examination.
A provider shall make available to the city or the city's designated agent (hereinafter "agent"), for the city or it's agent to examine, audit, review and copy, in the city, on the city manager's written request, its books and records referred to above, including papers, books, accounts, documents, maps, plans and other provider records that pertain to municipal consent conditions and requirements obtained under this chapter. A provider shall fully cooperate in making records available and otherwise assist the city examiner. The city examiner shall not inspect or copy or otherwise demand production of customer specific information or any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 USC 2701 et seq.
(d) 
Performance inquiries.
The city manager may, at any time, make inquiries pertaining to providers' performance of the terms and conditions of a municipal consent conveyed under this article. Providers shall respond to such inquiries on a timely basis.
(e) 
Requests for other documents.
Upon written request by the city manager, to the extent the documents are reasonably identified, providers shall furnish to the city within 30 business days from the date of the written request copies of all public petitions, applications, written communications and reports submitted by providers, to the FCC and/or to the PUC or their successor agencies, relating to any matters affecting the physical use of city public rights-of-way.
(f) 
Provisions continuing.
The provisions of this section shall be continuing and shall survive the termination of a municipal consent granted under this article and shall extend beyond the term of the municipal consent granted to the provider and the city shall have all the rights described in this section for so long as the provider is providing any telecommunications service within the city.
(Code 1975, § 20-93)
(a) 
Generally.
No municipal consent nor any rights or privileges that a provider has under a municipal consent, or the facilities held by a provider for use under such municipal consent which are in the public rights-of-way, shall be sold, resold, assigned, transferred or conveyed by the provider, either separately or collectively, to any other person, without the prior written approval of the city by ordinance or resolution. The city's approval shall be based upon the transferee providing adequate information to the city that it has the ability to perform and comply with the obligations and requirements of the municipal consent. Such approval shall not be unreasonably withheld. Should a provider sell, assign, transfer, convey or otherwise dispose of any of its rights or interests under its municipal consent, including such provider's telecommunications network, or attempt to do so, without the city's prior consent, the city may revoke the provider's municipal consent for default, in which event all rights and interest of the provider under the municipal consent shall cease.
(b) 
Transfer; change in control.
Any transfer in violation of this section shall be null and void and unenforceable. Any change of control of a provider shall constitute a transfer under this section. However, such a change in control shall not void the municipal consent as to the transferee, unless and until the city has given notice that such a change in control necessitates compliance with this section. If the provider does not initiate compliance with this section by a request for municipal consent within 30 days after the above notice has been given by the city, the municipal consent shall be null and unenforceable as to the transferee.
(c) 
Change of control deemed transfer.
There shall be a rebuttable presumption of a change of control of a provider upon a change of 15 percent or greater in the ownership of such provider. Such a change in control shall be deemed a transfer, which requires consent of the city.
(d) 
Pledge of assets.
A mortgage or other pledge of assets to a bank or lending institution in a bona fide lending transaction shall not be considered an assignment or transfer.
(e) 
Circumvention of payment of fees and charges.
Every municipal consent granted under this section shall specify that any transfer or other disposition of rights which has the effect of circumventing payment of required access line fees or minimum fees and/or evasion of payment of such fees by failure to accurately count or report the number of access lines by a provider is prohibited.
(f) 
Time frame for approval or denial of transfer.
Notwithstanding anything else in this section, if the city has not approved or denied a request to transfer under this section within 120 days of written notice of such request from the provider to the city, it shall be deemed approved. Such time frame may be extended by mutual agreement of the parties.
(g) 
Transfer of facilities.
Notwithstanding any other provision in this section, a provider may transfer, without city approval, the facilities in the public rights-of-way under a municipal consent to another provider who has a municipal consent under this article. The provider transferring the facilities remains subject to all applicable obligations and provisions of the municipal consent unless the provider to which the facilities are transferred is also subject to the same, as applicable, obligations and provisions. The provider transferring the facilities must give written notice of the transfer to the city manager.
(Code 1975, § 20-94)
(a) 
Notification generally.
A provider shall notify the city manager as is provided in the consent agreement.
(b) 
Written notice for transfer or change affecting applicability of certain sections.
A provider shall give written notice to the city not later than 15 days before a transfer or change in operations that may affect the applicability of sections 70-158 (conditions of public rights-of-way occupancy), 70-159 (insurance requirements), 70-160 (indemnity), and 70-161 (renewal of municipal consent) to the provider.
(Code 1975, § 20-95)
A person may not circumvent payment of access line fees or evade payment of such fees by bartering, transfer of rights, or by any other means that result in undercounting a provider's number of lines. Capacity or services may be bartered if the imputed lines are reported in accordance with section 70-151.
(Code 1975, § 20-96)
(a) 
Generally.
A provider is subject to the reasonable regulation of the city to manage its public rights-of-way pursuant to the city's rights as a custodian of public property under state and federal laws. A provider is subject to city ordinances and requirements and federal and state laws and regulations in connection with the construction, expansion, reconstruction, maintenance or repair of facilities in the rights-of-way.
(b) 
Construction information.
At the city's request, a provider shall furnish the city accurate and complete information relating to the construction, reconstruction, removal, maintenance, operation and repair of facilities performed by the provider in the rights-of-way.
(c) 
Construction subject to applicable city requirements.
The construction, expansion, reconstruction, excavation, use, maintenance and operation of a provider's facilities within the rights-of-way are subject to applicable city requirements.
(1) 
A provider may be required to place certain facilities within the rights-of-way underground according to applicable city requirements absent a compelling demonstration by the provider that, in any specific instance, this requirement is not reasonable or feasible nor is it equally applicable to other similar users of the right-of-way.
(2) 
A provider shall perform operations, excavations and other construction in the public rights-of-way in accordance with all applicable city requirements, including the obligation to use trenchless technology whenever commercially economical and practical and consistent with obligations on other similar users of the right-of-way. The city shall waive the requirement of trenchless technology if it determines that the field conditions warrant the waiver, based upon information provided to the city by the provider. All excavations and other construction in the public rights-of-way shall be conducted so as to minimize interference with the use of public and private property. A provider shall follow all reasonable construction directions given by the city in order to minimize any such interference.
(3) 
A provider must obtain a permit, as reasonably required by applicable city codes, prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the provider's facilities. Once a permit is issued, the provider shall give to the city a minimum of 48 hours' notice (which could be at the time of the issuance of the permit) prior to undertaking any of the above listed activities on its network in, on or under the public rights-of-way. The failure of the provider to request and obtain a permit from the city prior to performing any of the above listed activities in, on or over any public right-of-way, except in an emergency as provided for in subsection (c)(10) of this section, will subject the provider to a stop-work order from the city and enforcement action pursuant to the city's Code. If the provider fails to act upon any permit within 90 calendar days of issuance, the permit shall become invalid, and the provider will be required to obtain another permit.
(4) 
When a provider completes construction, expansion, reconstruction, removal, excavation or other work, the provider shall promptly restore the rights-of-way in accordance with applicable city requirements. A provider shall replace and properly relay and repair the surface, base, irrigation system and landscape treatment of any public rights-of-way that may be excavated or damaged by reason of the erection, construction, maintenance, or repair of the provider's facilities within 30 calendar days after completion of the work in accordance with existing standards of the city in effect at the time of the work.
(5) 
Upon failure of a provider to perform any such repair or replacement work, and five days after written notice has been given by the city to the provider, the city may repair such portion of the public rights-of-way as may have been disturbed by the provider, its contractors or agents. Upon receipt of a invoice from the city, the provider will reimburse the city for the costs so incurred within 30 calendar days from the date of the city invoice.
(6) 
Should the city reasonably determine, within two years from the date of the completion of the repair work, that the surface, base, irrigation system or landscape treatment requires additional restoration work to meet existing standards of the city, a provider shall perform such additional restoration work to the satisfaction of the city, subject to all city remedies as provided herein.
(7) 
Notwithstanding the foregoing, if the city determines that the failure of a provider to properly repair or restore the public rights-of-way constitutes a safety hazard to the public, the city may undertake emergency repairs and restoration efforts. A provider shall promptly reimburse the city for all costs incurred by the city within 30 calendar days from the date of the city invoice.
(8) 
A provider shall furnish the city with construction plans and maps showing the location and proposed routing of new construction or reconstruction at least 15 days (subject to subsection (d) of this section) before beginning construction or reconstruction that involves an alteration to the surface or subsurface of the public rights-of-way. A provider may not begin construction until the location of new facilities and proposed routing of the new construction or reconstruction and all required plans and drawings have been approved in writing by the city, which approval will not be unreasonably withheld, taking due consideration of the surrounding area and alternative locations for the facilities and routing.
(9) 
If the city manager declares an emergency with regard to the health and safety of the citizens and requests by written notice the removal or abatement of facilities, a provider shall remove or abate the provider's facilities by the deadline provided in the city manager's request. The provider and the city shall cooperate to the extent possible to assure continuity of service. If the provider, after notice, fails or refuses to act, the city may remove or abate the facility, at the sole cost and expense of the provider, without paying compensation to the provider and without the city incurring liability for damages.
(10) 
Except in the case of customer service interruptions and imminent harm to property or person, a provider may not excavate the pavement of a street or public rights-of-way without first complying with city requirements. The city manager or designee shall be notified immediately regarding work performed under such emergency conditions, and the provider shall comply with the requirements of city standards for the restoration of the public rights-of-way.
(11) 
Within 60 days of completion of each new permitted section of a provider's facilities, the provider shall supply the city with a complete set of "as-built" drawings for the segment in a format used in the ordinary course of the providers business and as reasonably prescribed by the city, and as allowed by law.
(12) 
The city may require reasonable bonding requirements of a provider, as are required of other entities that place facilities in the public rights-of-way.
(d) 
Unreasonable or unfeasible requirements.
In determining whether any requirement under this section is unreasonable or unfeasible, the city manager or his designee shall consider, among other things, whether the requirement would subject the provider or providers to an unreasonable increase in risk of service interruption, or to an unreasonable increase in liability for accidents, or to an unreasonable delay in construction or in availability of its services, or to any other unreasonable technical or economic burden.
(Code 1975, § 20-97)
(a) 
Generally.
In the exercise of governmental functions, the city has first priority over all other uses of the public rights-of-way. The city reserves the right to lay sewer, gas, water, and other pipe lines or cables and conduits, and to do underground and overhead work, and attachments, restructuring or changes in aerial facilities in, across, along, over or under a public street, alley or public rights-of-way occupied by a provider, and to change the curb, sidewalks or the grade of streets.
(b) 
Assignment of locations among competing users.
The city shall assign the location in or over the public rights-of-way among competing users of the public rights-of-way with due consideration to the public health and safety considerations of each user type, and to the extent there is limited space available for additional users, may limit new users, as allowed under state or federal law.
(c) 
Grants to abutting landowners; abandonment of right-of-way.
If, during the term of a municipal consent, the city authorizes abutting landowners to occupy space under the surface of any public street, alley, or public rights-of-way, the grant to an abutting landowner shall be subject to the rights of the provider. If the city closes or abandons a public right-of-way that contains a portion of a provider's facilities, the city shall close or abandon such public right-of-way subject to the rights conveyed in the municipal consent.
(d) 
Removal, relocation or change in facilities.
If the city gives written notice, a provider shall, at its own expense, temporarily or permanently, remove, relocate, change or alter the position of provider's facilities that are in the public rights-of-way within 120 days, except in circumstances that require additional time as reasonably determined by the city based upon information provided by the provider. For projects expected to take longer than 120 days to remove, change or relocate, the city will confer with provider before determining the alterations to be required and the timing thereof. The city shall give notice whenever the city has determined that removal, relocation, change or alteration is reasonably necessary for the construction, operation, repair, maintenance or installation of a city or other governmental public improvement in the public rights-of-way. This section shall not be construed to prevent a provider's recovery of the cost of relocation or removal from private third parties who initiate the request for relocation or removal, nor shall it be required if improvements are solely for beautification purposes without prior joint deliberation and agreement with provider. If the provider fails to relocate facilities in the time allowed by the city in this section, the provider may be subject to liability to the city for such delay and as set forth in the city codes or ordinance, now or hereafter enacted. Notwithstanding anything in this subsection (d), the city manager and a provider may agree in writing to different time frames than those provided above if circumstances reasonably warrant such a change.
(e) 
Trimming trees.
During the term of its municipal consent, a provider may trim trees in or over the rights-of-way for the safe and reliable operation, use and maintenance of its network. All tree trimming shall be performed in accordance with standards promulgated by the city. Should the provider, its contractor or agent fail to remove such trimmings within 24 hours, the city may remove the trimmings or have them removed, and upon receipt of a bill from the city, the provider shall promptly reimburse the city for all costs incurred within 30 working days.
(f) 
Temporarily removal, raising or lowering aerial facilities.
Providers shall temporarily remove, raise or lower its aerial facilities to permit the moving of houses or other bulky structures, if the city gives written notice of no less than 48 hours. The expense of these temporary rearrangements shall be paid by the party or parties requesting and benefitting from the temporary rearrangements. Providers may require prepayment or prior posting of a bond from the party requesting temporary move.
(Code 1975, § 20-98)
(a) 
Generally.
A provider shall obtain and maintain insurance in the amounts reasonably prescribed by the city with an insurance company licensed to do business in the state acceptable to the city throughout the term of a municipal consent conveyed under this chapter. A provider shall furnish the city with proof of insurance at the time of filing the acceptance of a municipal consent. The city reserves the right to review the insurance requirements during the effective period of a municipal consent, and to reasonably adjust insurance coverage and limits when the city manager determines that changes in statutory law, court decisions, or the claims history of the industry or the provider requires adjustment of the coverage. For purposes of this section, the city will accept certificates of self-insurance issued by the state or letters written by the provider in those instances where the state does not issue such letters, which provide the same coverage as required herein. However, for the city to accept such letters the provider must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the city, based on financial information requested by and furnished to the city.
(b) 
Certificates of insurance.
The provider shall furnish, at no cost to the city, copies of certificates of insurance evidencing the coverage required by this section to the city. The city may request the deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, unless the policy provisions are established by a law or regulation binding the city, the provider, or the underwriter. If the city requests a deletion, revision or modification, a provider shall exercise reasonable efforts to pay for and to accomplish the change.
(c) 
Contents of insurance certificate.
An insurance certificate shall contain the following required provisions:
(1) 
Name the city and its officers, employees, board members and elected representatives as additional insureds for all applicable coverage;
(2) 
Provide for 30 days' notice to the city for cancellation, nonrenewal, or material change;
(3) 
Provide that notice of claims shall be provided to the city manager by certified mail; and
(4) 
Provide that the terms of the municipal consent which impose obligations on the provider concerning liability, duty, and standard of care, including the indemnity section, are included in the policy and that the risks are insured within the policy terms and conditions.
(d) 
Proof of insurance; changes in liability limits.
The provider shall file and maintain proof of insurance with the city manager during the term of a municipal consent or an extension or renewal. An insurance certificate obtained in compliance with this section is subject to city approval. The city may require the certificate to be changed to reflect changing liability limits. A provider shall immediately advise the city attorney of actual or potential litigation that may develop may affect an existing carrier's obligation to defend and indemnify.
(e) 
Right of recovery against city.
An insurer has no right of recovery against the city. The required insurance policies shall protect the provider and the city. The insurance shall be primary coverage for losses covered by the policies.
(f) 
Policy clause interpretation.
The policy clause "other insurance" shall not apply to the city if the city is an insured under the policy.
(g) 
Payment of premiums and assessments.
The provider shall pay premiums and assessments. A company, which issues an insurance policy, has no recourse against the city for payment of a premium or assessment. Insurance policies obtained by a provider must provide that the issuing company waives all right of recovery by way of subrogation against the city in connection with damage covered by the policy.
(Code 1975, § 20-99)
(a) 
Generally.
Each municipal consent granted under this article shall contain provisions whereby the provider agrees to promptly defend, indemnify and hold the city harmless from and against all damages, costs, losses or expenses:
(1) 
For the repair, replacement, or restoration of city's property, equipment, materials, structures and facilities which are damaged, destroyed or found to be defective solely as a result of the provider's acts or omissions;
(2) 
From and against any and all claims, demands, suits, causes of action, and judgments for:
a. 
Damage to or loss of the property of any person (including, but not limited to the provider, its agents, officers, employees and subcontractors, city's agents, officers and employees, and third parties); and/or
b. 
Death, bodily injury, illness, disease, loss of services, or loss of income or wages to any person (including, but not limited to, the agents, officers and employees of the provider, provider's subcontractors and city, and third parties), arising out of, incident to, concerning or resulting from the negligent or willful act or omissions of the provider, its agents, employees, and/or subcontractors, in the performance of activities pursuant to such municipal consent.
(b) 
Indemnity not to apply to liability resulting from the negligence of city.
No municipal consent indemnity provision shall apply to any liability resulting from the negligence of the city, its officers, employees, agents, contractors, or subcontractors.
(c) 
Indemnity for benefit of city, not to create rights, survive expiration of municipal consent.
The provisions of the required indemnity provision set forth in an individual municipal consent shall provide that:
(1) 
It is solely for the benefit of the parties to the municipal consent and is not intended to create or grant any rights, contractual or otherwise, to any other person or entity;
(2) 
To the extent permitted by law, any payments made to, or on behalf of, the city under the provisions of this section are subject to the rights granted to providers under V.T.C.A., Utilities Code §§ 54.204— 54.206; and
(3) 
Subject to the continued applicability of the provisions of V.T.C.A., Utilities Code §§ 54.204—54.206, as set forth in subsection (c)(2) of this section, the provisions of the indemnity shall survive the expiration of the municipal consent.
(Code 1975, § 20-100)
A provider shall request a renewal of a municipal consent by making written application to the city manager at least 90 days before the expiration of the consent.
(Code 1975, § 20-101)
Within 30 days following the date of the passage of any action affecting the annexation of any property to or the disannexation of any property from the city's corporate boundaries, the city agrees to furnish provider written notice of the action and an accurate map of the city's corporate boundaries showing, if available, street names and number details. For the purpose of compensating the city under this article, a provider shall start including or excluding access lines within the affected area in the provider's count of access lines on the effective date designated by the comptroller of public accounts of the state for the imposition of state local sales and use taxes; but in no case less than 30 days from the date the provider is notified by the city of the annexation or disannexation.
(Code 1975, § 20-102)
This article shall be construed in accordance with the city Code in effect on the date of passage of this article to the extent that such Code is not in conflict with or in violation of the Constitution and laws of the United States or the state, subject to the city's ongoing authority to adopt reasonable regulations to manage its public rights-of-way, pursuant to sections 70-157 and 70-158 or as otherwise provided by law. Municipal consents entered into pursuant to this article are performable in the county.
(Code 1975, § 20-104)
(a) 
City's right to terminate; notice.
The city shall reserve the right to terminate any municipal consent and any rights or privileges conveyed under this article in the event of a material breach of the terms and conditions of the municipal consent or of this article, subject to a 30-day written notice and the opportunity to cure the breach during that 30-day period.
(b) 
Material breaches of a municipal consent.
Material breaches of a municipal consent specifically include, but are not limited to, continuing violations of sections 70-151 (compensation to city), 70-157 (construction obligations) and/or 70-158 (conditions of public rights-of-way occupancy), and the furnishing of service of any kind that requires municipal authorization but that is not authorized by section 70-143(a).
(c) 
Violation without fault of provider; performance obligations not excused.
A material breach shall not be deemed to have occurred if the violation occurs without the fault of a provider or occurs as a result of circumstances beyond its control. Providers shall not be excused from performance of any of their obligations under this article by economic hardship, nor misfeasance or malfeasance of their city managers, officers or employees.
(d) 
Termination; notice.
A termination shall be declared only by a written decision by motion, resolution or ordinance of the city council after an appropriate public proceeding before the city council, which shall accord the provider due process and full opportunity to be heard and to respond to any notice of grounds to terminate. All notice requirements shall be met by giving the provider at least 15 days prior written notice of any public hearing concerning the proposed termination of its consent. Such notice shall state the grounds for termination alleged by the city.
(Code 1975, § 20-105)
(a) 
Application for use of public rights-of-way, property, structures, etc.
Any person seeking to place facilities on, in or over the public rights-of-way, city property, city structures, or utility infrastructure shall first file an application for a municipal consent with the city and shall abide by the terms and provisions of this article pertaining to use of the public rights-of-way and pay the fees specified herein.
(b) 
Legal action to prohibit use of public rights-of-way.
The city may institute all appropriate legal action to prohibit any person from knowingly using the public rights-of-way unless the city has consented to such use in accordance with the terms of this chapter and with a municipal consent.
(c) 
Use of rights-of-way without municipal consent; liability for fees and charges.
Any person using the public rights-of-way without a municipal consent shall be liable for the same fees and charges as provided for herein.
(Code 1975, § 20-106)