Loading...
HomeMy WebLinkAboutOrdinance - 9971-1997 - Establishing A Non-Discriminatory Procedure For Granting Franchises - 01/23/1997/ First Reading Item #47 January 23, 1997 Second Reading Item II 10 February 13, 1997 ORDINANCE NO. 9971 AN ORDINANCE OF THE CITY OF LUBBOCK RELATING TO THE ESTABLISHMENT OF A NON-DISCRIMINATORY PROCEDURE FOR GRANTING FRANCHISES FOR USE OF PUBLIC RIGHTS-OF-WAY TO PROVIDE TELECOMMUNICATIONS SERVICES WITHIN THE CITY; PRESCRIBING UNIFORM TERMS AND CONDITIONS CONCERNING USE OF CITY PROPERTY AND PUBLIC RIGHTS-OF-WAY BY TELECOMMUNICATIONS FRANCHISEES; AND PRESCRIBING THE AMOUNT AND METHOD OF COMPENSATION TO BE PAID THE CITY FOR THE USE OF PUBLIC RIGHTS-OF-WAY TO PROVIDE TELECOMMUNICATION SERVICES WITHIN THE CITY. Section 1 -Purpose The purpose and intent of this Ordinance is to: (a) establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the use of City Property and Public Rights-of-Way to provide Telecommunications Services within the City; (b) permit and manage reasonable access to the property and Public Rights-of-Way of the City for telecommunications purposes on a non-discriminatory and competitively neutral basis; (c) conserve the limited physical capacity of the Public Rights-of-Way held in public trust by the City; ( d) assure that the City's current and ongoing costs of granting and regulating private access to and use of City Property and Public Rights-of-Way are fully paid by the Persons seeking such access and causing such.costs on a non-discriminatory and competitively neutral basis; ( e) secure fair and reasonable compensation on a non-discriminatory and competitively neutral basis to the City and the residents of the City for permitting private use of City Property and Public Rights-of-Way; (f) assure that all Telecommunications Carriers providing facilities or services within the City comply with the ordinances, rules and regulations of the City; (g) assure that the City can continue to fairly and responsibly protect the public health, safety and welfare; I I First Reading Item f/47 Second Reading Item #10 January 23, 1997 February 13, 1997 ORDINANCE NO. 9971 AN ORDINANCE OF THE CITY OF LUBBOCK RELATING TO Tiffi 1 ESTABLISHMENT OF A NON-DISCRIMINATORY PROCEDURE FOR GRANTING FRANCHISES FOR USE OF PUBLIC RIGHTS-OF-WAY TO PROVIDE TELECOMMUNICATIONS SERVICES WITHIN THE CITY; PRESCRIBING UNIFORM TERMS AND CONDITIONS CONCERNING USE OF CITY PROPERTY AND PUBLIC RIGHTS-OF-WAY BY TELECOMMUNICATIONS FRANCHISEES; AND PRESCRIBING THE AMOUNT AND METHOD OF COMPENSATION TO BE PAID Tiffi CITY FOR THE USE OF PUBLIC RIGHTS-OF-WAY TO PROVIDE TELECOMMUNICATION SERVICES WITHIN THE CITY; AND PROVIDING A PENAL TY. Section 1 -Purpose ARTICLE 1 GENERAL The purpose and intent of this Ordinance is to: ( a) establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the use of City Property and Public Rights-of-Way to provide Telecommunications Services within the City; (b) permit and manage reasonable access to the property and Public Rights-of-Way of i the City for telecommunications purposes on a non-discriminatory and competitively neutral I basis; (c) conserve the limited physical capacity of the Public Rights-of-Way held in public , trust by the City; ( d) assure that the City's current and ongoing costs of granting and regulating private access to and use of City Property and Public Rights-of-Way are fully paid by the Persons seeking such access and causing such costs on a non-discriminatory and competitively neutral basis; ( e) secure fair and reasonable compensation on a non-discriminatory and competitively neutral basis to the City and the residents of the City for permitting private use of City Property and Public Rights-of-Way; (f) assure that all Telecommunications Carriers providing facilities or services within the City comply with the ordinances, rules and regulations of the City; (g) assure that the City can continue to fairly and responsibly protect the public health, safety and welfare; · (h) enable the City to discharge its public trust consistent with rapidly evolving federal and State regulatory policies, industry competition and technological development. . Section 2 -Definitions For the purpose of this Ordinance, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise: (a) "Access Lines" means the transmission facilities located within the City between the end use customer s premises network interface and the serving facilities (including but not limited to, central office facilities, distribution frame facilities, or other similar facilities) which provide access to the local and toll switched network. The term Access Lines does not include Private Line Termination Point. (b) "Affiliate" means a Person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another Person. (c) "Cable Act" shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. §532, et seq., as now and hereafter amended. (d) "Cable Operator" means a Telecommunications Carrier providing or offering to provide Cable Service within the City as that term is defined in the Cable Act. ( e) "Cable Service" for the purpose of this Ordinance shall have the same meaning provided by the Cable Act. (f) "'City" means the City of Lubbock. (g) "City Property" means and includes all real property owned by the City, other than Public Streets and Utility Easements as those terms are defined herein, and all property held in a proprietary capacity by the City. (h) "Excess Capacity" means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the Public Right-of-Way that is or will be available for use for additional Telecommunications Facilities. (i) "FCC" or "Federal Communications Commission" means the Federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level. (j) "Governing Body" means the Mayor and City Council of the City. (k) "Grantee" means the Person to whom or which a telecommunications franchise is granted under this Ordinance, and the lawful successor, transferee, or assignee of said Person. (1) "Law" means any and all applicable laws, including but not limited to, the Communications Act of 1943, as amended by the Telecommunications Act of 1996, Pub. L. No. 104-104 § 110 Stat. 70, codified at 47 U.S.C. and subsequent amendments, and all orders, rules, tariffs, guidelines, and regulations issued by the Federal Communications Commission or the 1 I 11 governing State authority pursuant thereto, as well as all applicable State and City law. The term Law encompasses statutory law, administrative regulations, and case law. (m) "Municipal Telecommunications Line Fee" means a fee set by the City to compensate the City for the use and occupancy of the Public Rights-of-Way. (n) "Overhead Facilities" means utility poles, utility facilities and Telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities. ( o) "Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers. (p) "Private Line Service" means a non-switched telephone circuit dedicated for use between specific locations identified by an end-user customer. (q) "Private Line Termination Point" means the channel termination point or points of a private line service within the City. (r) "Public Street" means any highway, street, bridge, tunnel, alley, parkway or walkway for vehicular or pedestrian travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to purposes not inconsistent with Telecommunications Facilities. (s) "Public Right-of-Way" means and includes all Public Streets and Utility Easements, as those terms are defined herein, now or hereafter owned or controlled by the City, but only to the extent of the City's right, title, interest or authority to regulate the use and occupancy of such streets and easements for Telecommunications Facilities. (t) "PUC" or "Public Utility Commission of Texas" means the State administrative , agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers in the State of Texas. i ! I' l I , I (u) "State" means the State of Texas. (v) "Surplus Space" means that portion of the usable space on a utility pole which has the necessary clearance from other pole users to allow its use by a Telecommunications Carrier for a pole attachment. ( w) "Telecommunications Carrier" means and includes every Person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the City, used or to be used for the purpose of offering Telecommunications Service. (x) "Telecommunications Facilities" means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, poles, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer Telecommunications Service. 2 (y) "Telecommunications Provider" means and includes every Person who provides Telecommunications Service over Telecommunications Facilities without any ownership or management control of the facilities. (z) "Telecommunications Service" means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of, or of Telecommunications Facilities for the transmittal of, voice, data, image, graphics and other communications between or among points by wire, fiber optics or similar facilities, but does not include the provision to the public of any 11wireless service11, as defined by Law. (aa) "Underground Facilities" means Utility Facilities and Telecommunications Facilities located under the surface of the ground, excluding the underground foundations or supports for Overhead Facilities. (bb) 11Usable Space" means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum necessary vertical clearance. (cc) "Utility Easement11 means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with Telecommunications Facilities. (dd) "Utility Facilities" means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within City Property or Public Rights-of-Way and used or to be used for the purpose of providing utility or telecommunications services. Section 3 -Registration Except as otherwise provided herein, all Telecommunications Carriers and Providers engaged in the business of transmitting, supplying or furnishing of Telecommunications Services originating and/or terminating in the City, with the exception of those that already hold a current city telecommunications franchise or have a pending application for same on file with the City, shall register with the City pursuant to Article 2 of this Ordinance. Section 4 -Telecommunications Franchise Any Telecommunications Carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any City Property or Public Rights-of-Way for the purpose of providing Telecommunications Services within the City shall first obtain a franchise authorizing and regulating the use of such City Property and Public Rights-of-Way pursuant to Article 3 of this Ordinance. Section 5 -Cable Franchise Except as otherwise provided herein, any Telecommunications Carrier who desires to construct, install, operate, maintain or locate Telecommunications Facilities on City Property or in any Public Right-of-Way for the purpose of providing cable service to persons in the City shall first obtain a Cable Service franchise from the City as provided in the City s current cable franchise ordinances in effect at the time the Cable Service franchise is sought. 3 SectiQn 6 -Application to Existing Franchise Ordinances and Agreements This Ordinance shall have no effect on any existing franchise ordinance or franchise agreement until: (a) the expiration of said franchise ordinance or agreement; (b) an amendment is added to an unexpired franchise ordinance or franchise agreement, unless both parties agree to defer full compliance to a specific date not later than the present expiration date. Section 7 -Penalties Any Person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this Ordinance after receiving written notice of same from 1 the City Manager or his or her designated representative shall be fined not less than One Hundred I Dollars ($100.00) nor more than Five Hundred Dollars ($500.00) for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues. Section 8 -No Waiver for Non-Enforcement A Grantee shall not be excused from complying with any of the terms and conditions of this Ordinance or Grantee s franchise agreement by any failure or omission of the City upon any one or more occasions to insist upon, enforce, or otherwise seek compliance with an such terms and conditions. Section 9 -Other Remedies Nothing in this ordinance shall be construed as limiting any remedies that the City or a Grantee may have, under the Law, for enforcement of this ordinance. Section 1 o -Severability If any section, subsection, sentence, clause, phrase, or other portion of this ordinance, or its application to any Person, is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. 4 1, ARTICLE2 REGISTRATION OF TELECOMMUNICATIONS CARRIERS AND PROVIDERS Section 1 -Registration Required All Telecommunications Carriers and Providers that offer or provide any Telecommunications Service for a fee directly to the public, either within the City, or outside the corporate limits from Telecommunications Facilities within the City, with the exception of those Telecommunication Carriers that already hold a current telecommunications franchise or have a pending application for same on file with the City, shall register with the City pursuant to this Article within thirty {30) days following the date of final adoption of this Ordinance, and shall thereafter register annually on or before January 30 of each calendar year on forms to be provided by the City Secretary. The annual registration shall include the following: (a) The identity and legal status of the registrant, including any Affiliates. (b) The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement. (c) A general description of registrant's existing or proposed Telecommunications Facilities within the City. {d) A description of the Telecommunications Services that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the City. ( e) Information sufficient to determine whether the registrant is subject to the franchise requirements of this Ordinance. {f) Information sufficient to determine that the applicant has applied for and received any certificates of convenience and necessity, certificate of operating authority, construction permit, operating license or other approvals required by the Public Utility Commission of Texas and/or the Federal Communications Commission to provide Telecommunications Services or Telecommunications Facilities within the City. Section 2 -Registration Fee Each application for registration as a Telecommunications Carrier or Provider shall be accompanied by a fee of Twenty Five Dollars {$25.00). Section 3 -Purpose of Registration The purpose of registration under this Article is to: (a) provide the City with accurate and current information concerning the Telecommunications Carriers and Providers who offer or provide telecommunications services within the City, or that own or operate Telecommunications Facilities within the City; (b) assist the City in enforcement of this ordinance; 5 (c) assist the City in the collection and enforcement, on a non-discriminatory and competitively neutral basis, of any franchise fees, license fees or other charges that may be due the City; ( d) assist the City in monitoring compliance with applicable Laws .. ARTICLE3 TELECOMMUNICATIONS FRANCillSE Section 1 -Telecommunications Franchise A telecommunications franchise shall be required of any Telecommunications Carrier who desires to occupy City Property or Public Rights-of-Way for the purpose of providing Telecommunications Services to any person or area in the City. Section 2 -Franchise Application Any Person that desires a telecommunications franchise shall file an application with the City Secretary which shall include the following information: (a) The identity of the franchise applicant, i.ncluding all Affiliates of the applicant. (b) A description of the Telecommunications Services that are or will be offered or provided by the franchise applicant over its existing or proposed facilities. (c) A description of the Telecommunications Facilities that are or will be used by the franchisee applicant to offer or provide such telecommunications services. ( d) Preliminary engineering plans and specifications of any new facilities to be located within the City, if known at the time of application, in sufficient detail to identify: (1) the location and route of applicant's proposed Telecommunications Facilities. (2) the location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities on City Property or within the Public Rights-of-Way along the proposed route. (3) the specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate. ( e) If applicant is proposing to install new Overhead Facilities, satisfactory evidence that the Telecommunication Facilities cannot reasonably be installed in new or existing ducts or conduits, and that Surplus Space is available for locating its Telecommunications Facilities on existing utility poles along the proposed route. This showing may be satisfied by submission of a sworn affidavit setting forth, in detail, the relevant facts supporting applicant s contentions. 6 (f) If applicant is proposing to install new Underground Facilities in existing ducts or conduits under City Property or within the Public Rights-of-Way, information in sufficient detail to identify: (1) the Excess Capacity currently available in such ducts or conduits before installation of applicant's Facilities; (2) the Excess Capacity, if any, that will exist in such ducts or conduits after installation of applicant's facilities. (g) If applicant is proposing to install new Underground Facilities within new ducts or conduits to be constructed under City Property or within the Public Rights-of-Way: (I) the location proposed for the new ducts or conduits; (2) the Excess Capacity that will exist in such ducts or conduits after installation of applicant's facilities. (h) A preliminary construction schedule and completion dates. (i) A preliminary traffic control plan. (j) Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to comply with all requirements and obligations imposed upon a Grantee under this Ordinance. (k) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the Telecommunications Services. (1) Whether the applicant intends to provide Cable Service, video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to Cable Service franchising. (m) A description of the services or facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions. (n) All fees, deposits or charges required to accompany the franchise application pursuant to Article 4 of this Ordinance. (o) Manager. Such other and further information as may reasonably be requested by the City Section 3 -Determination by the City Within 90 days after receiving a complete application, the Governing Body shall issue a written determination granting or denying the application in whole or in part. If the application is denied, the written determination shall include the reasons for denial. The following standards will be used in determining whether to grant or deny an application: (a) The financial ability of the applicant. 7 (b) The legal ability of the applicant. (c) The capacity of the Public Rights-of-Way or City Property to accommodate the applicant's proposed facilities. ( d) The damage or disruption, if any, of public or private uses, facilities, improvements, service, travel or landscaping if the franchise is granted. ( e) The public interest in minimizing the cost and disruption of construction within the Public Rights-of-Way or on City Property. (f) The effect, if any, on public health, safety and welfare if the franchise requested is granted. (g) facilities. The availability of reasonable alternate routes and/or locations for the proposed (h) Applicable Law. Section 4 -Form and Content of Franchise Award All Telecommunications Franchise awards shall take the form of a municipal ordinance duly passed by the Governing Body and accepted by the Grantee. Each Telecommunications Franchise Ordinance, shall incorporate all applicable provisions of this Ordinance and shall follow a standardized format insofar as practical. Any special terms or conditions included within a Grantees franchise award shall be non-discriminatory and competitively neutral. Section 5 -Nonexclusive Franchise No franchise granted under this Article shall confer any exclusive right, privilege, license or franchise to occupy or use City Property or Public Rights-of-Way for delivery of Telecommunications Services or any other purposes. Section 6 -Term of Franchise A telecommunications franchise granted hereunder shall be valid for a term of three (3) years, subject to renewal pursuant to Section 10 of this Article. Section 7 -Rights Granted No franchise granted under this Ordinance shall convey any right, title or interest in City Property or Public Rights-of-Way, but shall be deemed a franchise only to use and occupy City Property and Public Rights-of-Way to the limited extent and for the limited purposes and term stated in the franchise agreement. Further, no franchise shall be construed as any warranty of title. 8 Section 8 -Compensation to City Each franchise granted under this Article is subject to the City's right to fair and reasonable compensation, as specified in Article 4 herein, on a non-discriminatory and competitively neutral basis, for the franchisee s use and occupancy of City Property and Public Rights-of-Way as well as the City s oversight, supervjsion and regulation of the same. Section 9 -Renewal Applications A Grantee that desires to renew its franchise under this Article shall, not more than 240 days nor less than 150 days before expiration of the current franchise, file an application with the City for renewal of its franchise which shall include the following: (a) The information required pursuant to Section 2 of this Article. (b) The application fee specified in Section 2 of Article 4. Section 10 -Renewal Determinations r Within 150 days after receiving a complete application under Section 9 of this Article, the Governing Body shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards: (a) The financial ability of the applicant. (b) The legal ability of the applicant. (c) The continuing capacity of City Property and Public Rights-of-Way to accommodate the applicant's existing facilities. ( d) The applicant's compliance with the requirements of this Ordinance and the franchise agreement. (e) Applicable Law. If the renewal application is denied, the written determination shall include the reasons for non-renewal. If the renewal application is granted, the franchise terms and conditions must be conformed as necessary to comply fully with all requirements and conditions contained in the City s then existing Telecommunications Ordinance. Section 11-Obligation to Cure As a Condition of Renewal No franchise shall be renewed until any ongoing violations or defaults in the Grantee's performance of the franchise agreement, or of the requirements of this Ordinance, have been cured in accordance with Section 23 of Article 5 of this Ordinance, or a plan detailing the corrective action to be taken by the grantee has been approved by the City. 9 ARTICLE4 FEES AND COMPENSATION Section 1 -Purpose It is the purpose of this Article to provide for reasonable and adequate compensation to the City for the use and occupancy of City Property and public rights-of-way for the provisioning of Telecommunications Services, and to further provide for the payment and recovery of all direct and indirect costs and expenses of the City related to the enforcement and administration of this Ordinance. Section 2 -Application and Review Fee (a) Any applicant for a franchise pursuant to Section 2 of Article 3 of this Ordinance shall pay an application and review fee of Five Thousand Dollars ($5,000). (b) Any applicant for a franchise renewal pursuant to Section 9 of Article 3 of this Ordinance shall pay an application and review fee of One Thousand Dollars ($1,000.00). ( c) The application and review fee shall be deposited with the City as part of the application for a franchise or franchise renewal filed pursuant to Section 2 or 9 of Article 3 of this Ordinance. ( d) Should the ascertainable costs and expenses incurred by the City in connection with the City s review of an application for a franchise or franchise renewal exceed the amount of the application and review fee, the applicant shall reimburse the City for such excess costs and expenses within sixty ( 60) days after written demand therefor. Section 3 -Other City Costs All Grantees shall, within thirty (30) days after written demand therefor, reimburse the City for all ascertainable costs and expenses incurred by the City in connection with any modification, amendment or transfer of the franchise or franchise agreement. Upon request, the City shall provide the Grantee a written itemization of the costs and expenses in question. Section 4 -Compensation for Use of Public Rights-of-Way (a) To compensate the City for the use and occupancy of the Public Rights-of-Way, each Grantee shall pay the City during the life of Grantee s franchise a monthly Municipal Telecommunications Line Fee for .each Access Line and Private Line Termination Point owned by Grantee, calculated at month-end, that is activated for use by an end use customer. For calendar year 1997, the monthly Municipal Telecommunications Line Fee shall be fixed in the following amounts: (1) $1.35 per residential Access Line (2) $3.13 per non-residential Access Line or Private Line Termination Point (b) At the beginning of each successive calendar year following the year of adoption of this Ordinance, the monthly Municipal Telecommunications Line Fee shall increase by four 10 percent (4%) over the amount of the monthly Municipal Telecommunications Line Fee fixed for the prior calendar year. Section s -Responsibility for Payment of Fees Each Grantee shall be responsible for payment to the City of the Municipal Telecommunications Line Fee on each activated Access Line and Private Line Termination Point owned by Grantee regardless of whether Grantee is the entity providing Telecommunication Services to the end user over those facilities. Where a Telecommunications Provider is providing Telecommunications Services to an end user utilizing Access Lines owned by Grantee, it shall be the Grantee s responsibility to properly track and account for the residential or non-residential character of those Access Lines. Section 6 -Payment Grantees shall remit the compensation required under Section 4 of this Article on a quarterly basis. Each quarterly payment shall be due on the forty-fifth (45) day following the close of each calendar quarter for which the payment is calculated. Section 7 -Compensation for City Property The compensation to be paid the City for the use and occupancy of City Property for the installation of Telecommunications Facilities, as well as the method and manner of payment thereof, shall be fixed by the City on a case-by-case, site-specific and non-discriminatory and competitively neutral basis. Such compensation shall be separate than, and in addition to, the compensation to be paid for use of the Public Rights-of-Way under Section 4 of this Article. Section 8 -Right to Audit Grantees shall keep complete and accurate books of accounts and records of their business and operations which pertain to any Telecommunications Services made the subject of any telecommunication franchise granted hereunder in accordance with generally accepted accounting principles. If required by the FCC, Grantees shall use the system of accounts and forms of accounts, records and memoranda prescribed by the FCC in 47 CRF Part 32 or its successor and as may be further described herein. The City may require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for, and reporting compensation due the City under Article 4 of this Ordinance. In order to document the aggregate Municipal Telecommunications Line Fee revenues due the City each quarter from Grantees, each Grantee shall file with the City Manager, at the time each quarterly payment is made, a sworn report to be prescribed and acceptable to the City in sufficient detail to itemize, by month, the number and proper classification of Grantee s active Access Lines and Private Line Termination Points within the City. The City may, if it sees fit, have the books and records of Grantees examined by a City representative to ascertain the correctness of the reports agreed to be filed herein, provided however, that any City audit shall be limited to verification of such reports for a period not to exceed two years prior to the date of commencement of the audit. 11 ARTICLES CONDITIONS OF GRANT Section 1 -Location of Facilities All facilities shall be constructed, installed and located in accordance with the following terms and conditions: (a) A Grantee shall install its Telecommunications Facilities within an existing underground duct or conduit whenever Excess Capacity exists within such utility facility, absent the submission by the Grantee or an affected Telecommunications Carrier or Provider of satisfactory evidence to the City Manager or his or her designee that this requirement is not reasonable or feasible in any specific instance. (b) A Grantee with permission to install Overhead Facilities shall install its facilities on pole attachments to existing utility poles only, provided Surplus Space is available. If the installation of a new pole or poles is necessary, the nwnber, location and installation of same shall be as designated by the City. ( c) Whenever any existing electric utilities, cable facilities or Telecommunications Facilities are located underground within a Public Right-of-Way of the City, a Grantee with permission to occupy the same Public Right-of-Way must also locate its Telecommunications Facilities underground, absent a compelling demonstration by Grantee or an affected Telecommunications Carrier that this requirement is not reasonable or feasible in any specific instance. ( d) Whenever any new or existing electric utilities, cable facilities or Telecommunications Facilities are located or relocated underground within a Public Right-of-Way, a Grantee that currently occupies the same Public Right-of-Way shall relocate its Telecommunications Facilities underground within a reasonable period of time, which shall not be later than the end of the franchise term unless Grantee makes a compelling demonstration that this requirement is not reasonable or feasible in any specific instance. Absent extraordinary circwnstances or undue hardship as determined by the City Manager or his or her designee, such relocation shall be made concurrently to minimize the disruption of the Public Rights-of-Way. ( e) In determining whether any requirement under this section is unreasonable or infeasible, the City Manager or his or her designee shall consider, among other things, whether the requirement would subject the Grantee or other affected Telecommunications Carrier or Provider to an unreasonably increased risk of service interruption, or to an unreasonably increased liability for accidents, or to an unreasonable delay in construction or in the availability of its services, or to any other unreasonable technical or economic burden. Section 2 -Construction Permits All Grantees are required to obtain construction permits to the extent and in the manner required in Article 6 of this Ordinance. 12 Section 3 -Interference with the Public Rights-of-Way No Grantee may locate or maintain its Telecommunications Facilities so as to unreasonably interfere with the use of City Property or Public Rights-of-Way by the City, by the general public or by other persons authorized to use or be present in or upon City Property or Public Rights-of-Way. In the event ofunreasonable interference, such facilities shall be moved by the Grantee, temporarily or permanently, as determined by the City Manager or his or her designee upon reasonable notice. If the temporary removal of a Grantee s aerial facilities is necessary to permit the moving of houses or other bulky structures, the Grantee shall be required to temporarily remove the same upon not less than 48 hours advance notice by a party permitted to move a building, house or other bulky structure pursuant to Sec. 6.27, Code of Ordinances. The expenses of such temporary relocation or removal of aerial facilities shall be paid by the party or parties requesting and benefitting from such temporary relocation or removal. Section 4 -Damage to Property No Grantee nor any Person acting on a Grantee's behalf shall take any action or permit any action to be done which may impair or damage any City Property, Public Rights-of-Way, or other property located in, on or adjacent thereto. Section s -Notice of Work Unless otherwise provided in this Ordinance, no Grantee nor any Person acting on the Grantee's behalf shall commence any non-emergency work in or about City Property or Public Rights-of-Way without the provision of advance notice to the City. Section 6 -Repair and Emergency Work In the event of an unexpected repair or emergency, a Grantee may commence such repair and emergency response work as required under the circumstances, provided the Grantee shall notify the City as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable. Section 7 -Maintenance of Facilities Each Grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable Law. Section 8 -Relocation or Removal of Facilities (a) Within thirty (30) days following written notice from the City, a Grantee shall, without claim for reimbursement or damages against the City, temporarily or permanently remove, relocate, change or alter the position of any Telecommunications Facilities on City Property or within the Public Rights-of-Way whenever the Governing Body shall have determined that such removal, relocation, change or alteration is reasonably necessary for: (1) The construction, repair, maintenance or installation of any City or other public improvement. 13 (2) The operations of the City or other governmental entity. (b) In any instance in which operation of Subsection ( a) is deemed by a Grantee to impose a financial hardship on the Grantee, the Grantee shall have the right to present alternative proposals to the City, and the City shall give due consideration to any such alternative proposals. (c) If the City requires a Grantee to adopt or conform its Telecommunications Facilities to enable any other entity or person, except the City, to use, or to use with greater convenience, Public Rights-of-Way or City Property, Grantee shall not be required to make any such changes until such other entity or person shall reimburse or make arrangements satisfactory to the Grantee to reimburse the Grantee for any loss and expense caused by or arising out of such change; provided, however, that the City shall never be liable for such reimbursement. ( d) If after proper notice the Grantee fails or refuses to remove or abate the facilities in question, the City retains the rights and privilege to remove or abate any such utility facilities, at the sole cost and expense of the Grantee. In performing or permitting such work to be done, the City shall not be liable to any Telecommunications Carrier or any Telecommunications Provider for any damages to any utility facilities unless directly and proximately caused by the willful intentional or malicious act by the City, and shall not be liable in any event for any consequential damages relating to service interruptions. Section 9 -Removal of Unauthorized Facilities Within thirty (30) days following written notice from the City, any Grantee, Telecommunications Carrier, or other Person that owns, controls or maintains any unauthorized Telecommunications Facilities or related appurtenances on City Property or within the Public Rights-of-Way shall, at its own expense, remove such facilities or appurtenances from City Property or Public Rights-of-Way. A Telecommunications Facility is unauthorized and subject to removal in the following circumstances: (a) Upon expiration or termination of the Grantee's telecommunications franchise. (b) Upon abandonment of a facility on City Property or within the Public Rights-of-Way of the City. ( c) If the facility was constructed or installed without the prior grant of a telecommunications franchise. ( d) If the facility was constructed or installed without the prior issuance of a required construction permit. If after proper notice the owner fails or refuses to remove or abate the facilities in question, the City retains the rights and privilege to remove or abate any such utility facilities, at the sole cost and expense of the owner. In performing or permitting such work to be done, the City shall not be liable to any Telecommunications Carrier or any Telecommunications Provider for any damages to any utility facilities unless directly and proximately caused by the willful intentional or malicious act by the City, and shall not be liable in any event for any consequential damages relating to service interruptions. 14 Section 10 -Emergency Removal or Relocation of Facilities The City retains the right and privilege to cut or move any Telecommunications Facilities located on City Property or within the Public Rights-of-Way, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City 1 shall cooperate to the extent possible with the Grantee in such instances to assure continuity of service, and to afford the Grantee the opportunity to make such relocation and/or removal itself where deemed reasonable, at the City s sole discretion. Section 11 -Damage to Grantee s Facilities Unless directly and proximately caused by the willful, intentional or malicious acts by the I City, the City shall not be liable for any damage to or loss of any Telecommunications Facility i on City Property or within the Public Rights-of-Way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on City Property or in the Public Rights-of-Way by or on behalf of the City, and shall not be liable in any event for any consequential damages relating to service interruptions. Section 12 -Restoration of Public Rights-of-Way and City Property (a) When a Grantee, or any Person acting on its behalf, does any work in or affecting any Public Rights-of-Way, or City Property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such Public Rights-of-Way or City Property to as good a condition as existed before the work was undertaken. (b) If weather or other conditions do not permit the complete restoration required by this Section, the Grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Grantee s sole expense and the Grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. ( c) A Grantee or other Person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property. Section 13 -Facilities l\faps (a) Within a reasonable time after completing any new construction of or expansion of existing Utility Facilities, but in no case more than sixty (60) days after such completion, a , Grantee shall provide the City with an accurate as-built map or maps certifying the location of all such new or expanded Utility Facilities. (b) Each Grantee shall maintain maps of all of the Grantee s Telecommunications Facilities located on City Property or within the Public Rights-of-Way. Such maps shall be made available for review by other Grantees, upon reasonable request, to the extent such review may be necessary to determine whether the sharing of conduit in a given location is feasible. Within five (5) business days of a request from the City, Grantee shall provide the City with a copy of any portion of those maps showing the location of Grantees facilities within the Public Rights- of-Way or on City Property in any specific geographic area designated by the City. Such map or maps shall be provided at no cost to the City. Grantee shall also promptly locate any buried or underground utilities at the City s request at no cost to the City. 15 Section 14 -Duty to Provide Information Within twenty (20) days of a written request from the City Manager or his or her representatives, each Grantee shall furnish the City with information sufficient to demonstrate: (a) That Grantee has complied with all requirements of this Ordinance. (b) That all :franchise fees due the City in connection with the Telecommunications Services and facilities provided by the Grantee have been properly calculated and paid by the Grantee. ( c) All books, records, maps and other documents, maintained by the Grantee with respect to its facilities on City Property or within the Public Rights-of-Way shall be made available for inspection by the City at reasonable times and intervals. Each Grantee shall furnish the City Attorney with notices of all initial petitions, applications, and reports submitted by Grantee to the Federal Communications Commission, the Public Utility Commission of Texas, the Texas Legislature or the Congress of the United States relating to any matters affecting both the use of Public Rights-of-Way and Telecommunications Services within the City. Upon written request, Grantee shall furnish the City Attorney with copies of all such documents. Section 15 -Grantee Insurance (a) . Except as provided in Subparagraph (c) below, each Grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the Grantee and the City, and its elected and appointed officers, officials, agents and employees as · co insureds: (1) General liability insurance with limits not less than (A) Five Million Dollars ($5,000,000) for bodily injury or death to each person; (B) Five Million Dollars ($5,000,000) for property damage resulting from any one accident; and, (C) Five Million Dollars ($5,000,000) for all other types of liability. (2) Automobile liability for owned, non-owned and hired vehicles with a limit of Three Million Dollars ($3,000,000) for each person and Three Million Dollars ($3,000,000) for each accident. (3) Worker's compensation within statutory limits and employer's liability insurance with limits of not less than One Million Dollars ($1,000,000). (4) Comprehensive form premises-operations, explosions and collapse haz.ard, underground haz.ard and products completed haz.ard with limits of not less than Three Million Dollars ($3,000,000). 16 II I I (b) The liability insurance policies required by this section shall be maintained by the Grantee throughout the term of the telecommunications franchise, and any such other period of time during which the Grantee is operating without a franchise hereunder, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the City Manager of such intent to cancel or not to renew." Within sixty (60) days after receipt by the City of said notice, and in no event later than thirty (30) days prior to said cancellation, the Grantee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section. (c) Unless otherwise precluded by Law, a Grantee may satisfy one or more of the insurance requirements specified in subsection (a) of this section through self-insurance, provided, however, that no Grantee may self-insure without the prior approval of the City. In no event shall a self-insurance proposal be approved absent a showing to the City s satisfaction that the Grantee is in a sound financial condition, and that Grantee maintains a dedicated reserve in an amount sufficient to ensure that Grantee s outstanding potential claims do not at any time exceed fifty (50) percent of the value of the reserve. Section 16 -General Indemnification Each franchise agreement shall include, to the extent permitted by law, Grantee's express undertaking to defend, indemnify and hold the City and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the Grantee or its Affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its Telecommunications Facilities, and in providing or offering Telecommunications Services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this Ordinance or by a franchise agreement made or entered into pursuant to this Ordinance. Section 17 -Performance and Construction Surety Before a franchise granted pursuant to this Ordinance is effective, and as necessary thereafter, the Grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the City as may be required by this Ordinance or by an applicable franchise agreement. Section 18 -Security Fund Each Grantee shall establish a permanent security fund with the City by depositing the amount of $25,000 with the City in cash, an unconditional letter of credit, or other instrument acceptable to the City, which fund shall be maintained at the sole expense of Grantee so long as any of Grantee's Telecommunications Facilities are located on City Property or within the Public Rights-of-Way of the City. 17 (a) The fund shall serve as security for the full and complete performance of this Ordinance, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the Grantee to comply with the codes, ordinances, rule, regulations or permits of the City. (b) Before any sums are withdrawn from the security fund, the City shall give written notice to the Grantee: (1) (2) (3) (4) describing the act, default or failure to be remedied, or the damages, cost or expenses which the City has incurred by reason of Grantee's act or default; providing a reasonable opportunity for Grantee to first remedy the existing or ongoing default or failure, if applicable; providing a reasonable opportunity for Grantee to pay any monies due the City before the City withdraws the amount thereof from the security fund, if applicable; that the Grantee will be given an opportunity to review the act, default or failure described in the notice with the City Manager or his or her designee. (c) Grantees shall replenish the security fund within fourteen (14) days after written notice from the City that there is a deficiency in the amount of the fund. Section 19 -Construction and Completion Bond For any construction project exceeding an estimated cost of $25,000, a performance installation bond written by a corporate surety acceptable to the City equal to at least 100% of the estimated cost of construction of Grantee's Telecommunications Facilities ( excluding cost of plant) on City Property and within the Public Rights-of-Way of the City shall be deposited before construction is commenced. (a) The construction bond shall remain in force until sixty (60) days after substantial completion of the work, as determined by the City Manager or his or her designee, including restoration of Public Rights-of-Way and other property affected by the construction. (b) The construction bond shall guarantee, to the satisfaction of the City: (1) timely completion of construction; (2) construction in compliance with applicable plans, permits, technical codes and standards; (3) proper location of the facilities as specified by the City; (4) restoration of the Public Rights-of-Way and other property affected by the construction; 18 (5) (6) the submission of "as-built" drawings after completion of the work as required by this Ordinance. timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. ( c) In the event that performance by a Grantee of any of its obligations under the terms of Grantee s Construction Permit, construction bond and/or the construction requirements imposed by this Ordinance shall be interrupted or delayed by an act of God, by acts of war, riot, or civil commotion, by an act of State, by strikes, fire, flood, or by the occurrence of any other similar event, Grantee shall be excused from such performance for such period of time as is reasonably necessary after such occurrence abates for the effects thereof to have dissipated. Section 20 -Coordination of Construction Activities All Grantees are required to cooperate with the City and with each other. (a) . By February 1 of each year, Grantees shall provide the City Manager or his or her designee with a schedule of their then known proposed construction activities in, around, or that may affect City Property or Public Rights-of-Way. (b) Each Grantee shall meet with the City Manager or his or her designee, other Grantees, and users of City Property and Public Rights-of-Way as determined by the City Manager or his or her designee, but in no case less than once a calendar year or more frequently than once a month, to schedule and coordinate construction on City Property and in Public Rights-of-Way. (c) All construction locations, activities and schedules shall be coordinated, as ordered by the City Manager or his or her designee, to minimize public inconvenience, disruption or damages. Section 21 -Assignments or Transfers of Franchise A franchise may not be transferred, assigned or disposed ofby sale, lease, merger, or consolidation , by operation of law or otherwise, without the prior consent of the City, which consent shall not be unreasonably withheld or delayed, as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein. Transactions between affiliated entities are not exempt from City approval. (a) Grantee and the proposed assignee or transferee of the franchise shall provide and certify the following information to the City not less than one hundred and fifty (150) days prior to the proposed date of transfer: (1) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; (2) All information required of a telecommunications franchise applicant pursuant Article 3 of this Ordinance with respect to the proposed transferee or assignee; (3) Any other information reasonably required by the City. 19 (b) No transfer shall be approved unless the assignee or transferee has the legal, financial and other requisite qualifications to own, hold and operate the Telecommunications Facilities covered by the franchise pursuant to this Ordinance. ( c) The Grantee shall reimburse the City for all direct and indirect fees, costs, and expenses reasonably incurred by the City in considering a request to transfer or assign a telecommunications franchise. ' (d) Any transfer or assignment of the franchise, or any part thereof, without prior approval of the City under this Section or pursuant to a franchise agreement shall be void and is cause for revocation of the franchise. Section 22 -Revocation or Termination of Franchise A franchise granted by the City to use or occupy City Property or Public Rights-of-Way may be revoked for the following reasons: (a) location. Construction on City Property or in the Public Rights-of-Way at an unauthorized (b) Unauthorized sale, assignment or transfer of Grantee's franchise, or a substantial interest therein. ( c) Misrepresentation of a material fact by a Grantee or any of Grantees officers, employees or agents in any application to the City. (d) Unauthorized abandonment of Telecommunications Facilities on City Property or in the Public Rights-of-Way. (e) Failure to relocate or remove facilities or the failure to reimburse the City for the involuntary relocation or removal of facilities as required in this Ordinance. (f) Failure to pay compensation, fees or costs when and as due the City. (g) Insolvency or bankruptcy of the Grantee. (h) Violation of material provisions of this Ordinance. (i) Violation of the material terms of a franchise agreement. Section 23-Notice and Opportunity to Cure In the event that the City Manager believes that grounds exist for revocation of a franchise, he or she shall give the Grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the Grantee a reasonable period of time not exceeding thirty (30) days to furnish evidence: 20 (a) That corrective action has been taken, or is being actively and expeditiously pursued, to remedy the violation or noncompliance. (b) That rebuts the alleged violation or noncompliance. ( c) That it would be in the public interest to impose some penalty or sanction less than revocation. Section 24-Hearing In the event that a Grantee fails to provide evidence reasonably satisfactory to the City Manager as provided in Section 23 of this Article, the Manager shall refer the apparent violation or non-compliance to the Governing Body. The Governing Body shall provide the Grantee with notice and a reasonable opportunity to be heard concerning the matter. Section 25-Standards for Revocation or Lesser Sanctions If persuaded that the Grantee has violated or failed to comply with material provisions of this Ordinance, or of a franchise agreement, the Governing Body shall determine whether to revoke the franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: (a) Whether the misconduct was egregious. (b) Whether substantial harm resulted. ( c) Whether the violation was intentional. ( d) Whether Grantee has a history of prior violations of the same or other requirements. ( e) Grantee s history of overall compliance. (f) Whether Grantee voluntarily disclosed, admitted, or cured the violation. Section 1 -General ARTICLE6 CONSTRUCTION STANDARDS No Person shall commence or continue with the construction, installation or operation of Telecommunications Facilities on City Property or within the Public Rights-of-Way except as provided in this Article. Section 2 -Construction Codes Telecommunications Facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, State and local codes, rules and regulations including the National Electrical Safety Code. 21 Section 3 -Construction Permits (a) No Person shall perform major construction work within the Public Rights-of-Way or on Cty Property without first obtaining a construction permit therefor, provided, howevemo construction work whatsoever may be undertaken, nor shall a permit be issued for the construction or installation of facilities on City Property or in the Public Rights-of-Way to provide Telecommunications Service within the City unless the Telecommunications Carrier has applied for and received a franchise pursuant to Article 3 of this Ordinance. (b) As used in this Article, major construction work means any construction, installation, maintenance, repair, or other work activities on City Property or within the public rights-of-way, the total estimated construction cost of which (excluding cost of plant) exceeds $25,000. Section 4 -Applications (a) Applications for permits to construct Telecommunications Facilities shall be submitted upon forms to be provided by the City and shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate: (1) That the facilities will be constructed in accordance with all applicable codes, rules and regulations. (2) The location and route of all above-ground facilities to be installed, including separate identification of any new poles. (3) The location and route of all facilities to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route which are within the Public Rights-of-Way. ( 4) The location of all existing underground utilities, conduits, ducts, pipes, mains and installations which are within the Public Rights-of-Way along the underground route proposed by the applicant. (b) The City Manager or his or her designee may, in his or her discretion, require additional information to determine whether: (I) the construction methods to be employed will adequately protect existing structures, fixtures, and facilities within or adjacent to the Public Rights-of-Way. (2) a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction is necessary. Section 5 -Engineer's Certification All permit applications shall be accompanied by the certification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations. 22 . Section 6 -Traffic Control Plan All construction permit applications which involve work on, in, under, across, or along any Public Rights-of-Way shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with the Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic. Section 7 -Issuance of Permit Within ten (10) days after submission of all plans and documents required of the applicant under this Ordinance, the City Manager or his or her designee, if satisfied that the applications, plans and documents comply with all requirements of this Ordinance, shall issue a permit authorizing construction of the facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as he or she may deem necessary or appropriate. In the event that a grantee has a specific service request from a customer and upon written application to the City Manager or his or her designee, the City Manager or his or her designee may expedite the issuance of the permit or may issue a conditional permit, allowing the grantee to commence work on a day requested prior to the expiration of 10 days after submission of the application. The application for an expedited permit or for a conditional permit shall include all information normally required by this Article for a permit, and shall be supplemented by any additional information requested by the City Manager or his or her designee which would reasonably be calculated to support the granting of an expedited permit or conditional permit. The City Managers approval, or that of his or her designee, will not be unreasonably withheld. Section 8 -Constmetion Schedule The permittee shall submit a written construction schedule to the City Manager or his or her designee five (5) working days before commencing any work in or about the Public Rights-of-Way. The permittee shall further notify the City Manager or his or her designee not less than 2 working days in advance of any excavation or work in the Public Rights-of-Way. Section 9 -Compliance with Permit All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The City Manager and his or her representatives shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements. Section 10 -Display of Permit The permittee shall maintain a copy of the construction permit and approved plans at the construction site, which shall be displayed and made available for inspection by the City Manager or his or her representatives at all times when construction work is occurring. 23 Section 11 -Survey of Unden:round Facilities If the construction permit specifies the location of facilities by depth, line, grade, proximity to other facilities or other standard, the City Manager or his or her designee may require the permittee to provide written verification, if reasonably necessary, of the location of such facilities by a registered surveyor. If requested by the City Manager or his or her designee, the permittee shall relocate any facilities which are not located in compliance with permit requirements. Section 12 -Noncomptying Work Upon order of the City Manager or his or her designee, all work which does not comply with the permit, the approved plans and specifications for the work, or the requirements of this Ordinance, shall be removed. Section 13 -Completion of Construction The permittee shall promptly complete all construction activities so as to minimize disruption of the Public Rights-of-Way and other public and private property. All construction work authorized by a permit within Public Rights-of-Way, including restoration, must be completed within 120 days of the date of issuance, or by such other date as may be agreed upon by the City Manager or his or her designee. Section 14 -As-Built Drawings Within sixty (60) days after completion of construction, the permittee shall furnish the City with a complete· set of plans, certifying to the City that they accurately depict the location of all Utility Facilities constructed pursuant to the permit. Section 15 -Restoration of Improvements Upon completion of any construction work, the permittee shall promptly repair or restore any and all Public Rights-of-Way, including any and all public and private fixtures, structures and facilities therein, to as good or better a condition as before the start of construction. Section 16 -Landscape Restoration (a) All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, installation, maintenance, repair or replacement of Telecommunications Facilities, shall be replaced or restored as nearly as may be practicable, to at least as good condition than prior to performance of work. (b) All restoration work within the Public Rights-of-Way shall be done in accordance with landscape plans approved by the City Manager or his or her designee. Section 17-Construction Surety Prior to issuance of a construction permit, the permittee shall provide a performance bond, as provided in Article 5, Section 19 of this Ordinance. 24 Section 18 -Responsibility of Owner The owner of the facilities to be constructed and, if different, the Grantee, are responsible for performance of and compliance with all provisions of this Article. AND IT IS SO ORDERED. Passed by the City Council on first reading on the 23rdday of January Passed by the City Council on second reading on the 13rbday of February ATIEST: Af>PROVED AS TO CONTENT: Bob Cass, City Manager APPROVED AS TO FORM: da/ccdocs/telecom.ord February 11, 1997 25 1997. , 1997. CITY OF LUBBOCK § COUNTY OF LUBBOCK § STATE OF TEXAS § AFFIDAVIT Before me, the undersigned authority, personally appeared Kaythie D. Darnell, who, being by me duly sworn, deposed as follows: My name is Kaythie D. Darnell, I am of sound mind, over 18 years of age, capable of making this affidavit, and personally acquainted with the facts herein stated: I am the custodian of the records of the City Secretary's Office for the City of Lubbock, Texas. Attached hereto is a copy of the Non-discriminatory Procedure for Granting Telecommunications Franchises for Use of Public Rights of Way, Item #10, Ordinance #9971, taken from the City Council's Regular Meeting on February 13, 1997, from the official records of the City of Lubbock. These records are kept by me, the City Secretary, in the regular course of business, and it was in the regular course of business of the City Secretary of the City of Lubbock, Texas or an employee or representatives of the City Secretary of the City of Lubbock, Texas, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original. ~k)J~ BEFORE ME, the undersigned authority, a Notary Public in and for said County, Texas, on this day personally appeared Kaythie D. Darnell, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed. 1997. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 18th day of February Notary Public, State of Texas Commission Expires: 10/06/97 THE STATE OF TEXAS COUNTY OF LUBBOC~. CE:xJ Before m · 1\1\. Notary Public in and for Lubbock County, Texas on this day personally appear S • of the Southwestern Newspa- pers Corporation, publishers of the Lubbock Avalanche-Journal -Morning, and Sunday, who being by me duly sworn did depose and say that said newspaper has been published continuously for more than fifty-two weeks pri- or to the first insertion of this ... 1-A~:tll-""a .... l.__l'Q ............ t=i L=<---------------------------------.~-v __ __,~o, I 00 A <J5S2, at Lubbock County, Texas and the attached print- ed copy of the \,ro.,a \ na±t L:<> is a true copy of the original and was printed in the Lubbock, A anche-Journat on the following dates:-+::~,..._...........,v'--"+---4-'-+_,__.4--'c,-------------- :R \-c iph Dne,, S.0t les N\clno ::f~v LUBBOCK AVALANCHE-JOURNAL Morris Communication Corporation Subscribed and sworn to before me thi .... s ---ft( ___ day of P7~ FORM58•l0 Texas 1997 Before m.'l,...JL=>,~~~"'-----rr----==-=---,-a P.ubli i and for Lubbock County, Texas on this day personally appeare a e r · of the Southwestern Newspa- pers Corporation, publishers of the Lu6bock Ava anche-Journal -Morning, and Sunday, who being by me duly sworn did depose and say that said new ap r~ has been published continuously for more than fifty-two weeks pri- or to the first insertion of this J.::S.~~-1-~~~=-=-:-:---------------------- ..&.-"'..-"--".......,'-'----at Lubbock County, Texas and the attached print- "--'""'""'-""""'._._ ........ _-=-=-------~i.s a true c of the original and was printed in the Lubbock NOTARY PUBLIC in and for the State of Texas My Commission Expires .................. ___ _ Morris Communication Corporation Subscribed and sworn to before me thi~s __ a___. ... (()~--day of_ .... ffA.__.__Q<._( ..... C ..... .Ji ... '3 ______ __.19 C/7 FOR!\158-10 PATTITATE Notary Public, State ol Texas My Commitslon Expires 7-05-2000 PROVIDING A PEN L• T"I!; PROVIDING A SAVINGS ..., CL,6.USE AND PROVl!)ING FQR PU8Llc,ATION. . · ' . • SjCTION 3. THAT vl~~lon of anv of this Ordinance sholl .o misdemeanor pUnish-ltne not to eiu:eed TwO ·. Tlloulll'nd and No/100 Dollars ($2AlOQ.00J os provided In Section · ~4:tof flit Zanln11 Ordinance olthe en, ot:Lubboek. • ,41 " ' .,, . ORDINANCE N0,997l . (. ANORDINANC~OFTHE CITY OF LUBBOCK RELATING ·TO THE ESTABLISHMENT OF A <NON-OISCRIMINATORY PROO- PER FOR GRANTING FRAN• ·c:1-1.1ses FOR USE OF PUBLIC Rl<iKTS.O_ R•WAY TO PROVIPE "Q5f;E~MUNICA'1"10N$SS1t· ' VICE$:WITHIN TH'! CITY; PRI:!· · £C:Rl81NG UNIFORM TERM AND CONDITIONS CONCERN• ING USE OF CITY PROPERTY AND PUBLIC RIGHTS•OF-WAY BY TELECOMMUNICATIONS FRANCHISEES:. PRESCRIBING UNT A.ND METHOD OF JII' TO ae PAID i~t.J:1$ ~, £14!CO',M,MUN ICM; •C:ES WITHIN THI! PROVIDING A PEN• THE STATE OF TEXAS COUNTY OF LUBBOCK .__ ___ --=-_,._"-L-.J~¥--,---..:......:;'--'=="-4"'\Q Notary Public in and for Lubbock County, Texas on this day ..,._......,c.>6..J~~......,..'-'f...--~"'-"'~-'-"'~4,lJ.::'\---+->~~~.__-----'of the Southwestern Newspa- pers Corporation, publishers of the Lu ock Avalanche-Jou nal Mo ing, and Sunday, who being by me duly sworn did depose and say that said newspa . r has been published continuously for more than fifty-two weeks pri- or to the first insertion of this --=='+"'-...____,__,.. ...... -=e.'---------------------------------,---.-,,c----~ o. ID3 • 8$2 at Lubbock County, Texas and the attached print- ed copy of the · s a true copy of the original and was printed in the Lubbock Avalanche-Jour on the following dates'. &~rt;1~ !Zit;; ~i~. 44 LUBBOCK AVALA HE-JOURN Morris Communication Corporation Subscribed and sworn to before me this~~j_l __ _ FORI\158-10 (@,. Before me-"'...,_._~~"----,..,_--=,.....,......,...,f> blic · and for 1.Aibbock County, Texas on this day personally appeareclt;1.Jt:na.cw..aUA¥,-...W;;.w:~iwv.r:.:...,._~o.,.U':,a,.~,;p~-•of the Southwestern Newspa- pers Corporation, publishers of the Lubbock Avalanche-Journal -Momin , and Sunday, who being by me duly sworn did depose and say that id n ap ~ has been published continuously for. more than fifty-two weeks pri- or to the first insertion of this · """'"--'....,=---.aat Lubbock County, Texas and the attached print- mec.J.J=~-llo.!.J.U:!Scl;._ __ ~---'· s a llJlt co the original and was printed In the Lubbock r ;,,&, . NOTARY PUBLIC In and for the Slate of Texas My Commission Expires .................. ___ _ Morris Commw,ication Corporation Subscribed and sworn to before me this _ _.:J,"""'(o_,..,_ __ ,day of M,ll rcb PATTI TATE 11\)tary Putfc, Slate of Texas My Commission ~ires 7-05-2000 ------------------------. ·--- il.crmN ,:nu,T ~1oia1*:--' eilv ~lt!Otls of lflil Onl\1'11~ 11\CIIII Mdetmtc:I o m1tditmeol'IOI' """bllo oble bY II ftl'lt not to H()HO Two T?tovHlfld 81\d ffoJ100 Oollon '. (12,000.00) ot o,v,,ldta WI kdlol\. tMt otftlt lonltttOnllnonceot W. ·Cftoft..ul;ttloclL .· ' ., OR.PlNANCE NOjwl ~::: AN ORPINA.Nc'E· o,· THIE ' .CITY OF LU8BOc:IC Rel.A.TINO .TOntt HfAILISKMENT 0~ A 'N0PH)J$CAIMfNATOR.Y PROO. DIA'POR GstANTIHO FRAtJ• CMtSES POR USE Ofe PU&L1t IIU0)1TS.OR•WA¥ TO S,ftOVIDE. 111!1:.ECQMMlJNICATIOH.S Se.R• YICl!.SW'~THIH 1~ CITY• Pit.I!, 5~1'.tllJNO VN~"-OR,...1EROl A 1CtJco·r..0n1ON$ C:ONCERN• I O"\lsr-ott an' PROPl!RTY ANO PU.LIC IUOI-ITS•OIE•WAY ev TELl!.C.OMMUHICATIONI . FU.NCttf$1!ES: PRESCftllllNG ~·4 -... tMSAMOUNTAHOMETttODOI' 1 ··• COMPf!N)ATJO.M TO 1£ P.AIO· I Ttfl. (t'fY POA TMI! USE o, · \,V.e\.•(:RIGKTS-OF·WAY 1'0 : 'PllOVtll! T~LECOMMUNtCA-TIOH l!AVlCl!S WITHIN TME CfT'I': AHO fl'llOYIOING • IJEJ~ '"'!'!· -····· -----·---------