Chapter 33. Telecommunications

The purpose of this article is to establish a competitively neutral policy for the use of the public rights-of-way for the provision of telecommunications services and to enable the city to:

Establish a local policy, with clear local guidelines, standards and time frames for the exercise of local authority with respect to telecommunications providers using the public rights-of-way.

Manage access to 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.

Obtain fair and reasonable compensation to the city for the private commercial use of the public rights-of-way through the collection of nondiscriminatory fees.

Promote competition among telecommunications service providers and encourage the universal availability of advanced telecommunications services to all residents and businesses of the city.

Conserve the limited physical capacity of the public rights-of-way held in public trust by the city.

Assure that the city's current and ongoing costs of granting and regulating private access to and use of the public rights-of-way are fully paid by the persons seeking such access and causing such costs.

Assure that all telecommunications carriers providing facilities or services within the city comply with the ordinances, rules and regulations of the city.

Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare.

Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

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. (1) Each switched transmission path of the transmission media within the rights-of-way extended to the end-user customer's premises network interface within the city that allows delivery of telecommunications service; (2) 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; and (3) each termination point of a nonswitched telephone 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.

Applicant. Any person who files an application with the city, under this article, in order to obtain the necessary consent to use or place a telecommunications network within the public rights-of-way of the city whether by means of the person's own facilities or by purchase or lease of one or more network elements from another provider of telecommunications services.

Cable Act. The Cable Communications Policy Act of 1984, 47 USC 532, et seq., as amended.

Cable operator. A person providing or offering to provide "cable service" within the city as that term is defined in the cable act.

Cable service. For the purpose of this article shall have the same meaning provided by the cable act.

Certificated telecommunications utility. A telecommunication provider who is required to obtain or has a certificate of convenience and necessity or a certificate of operating authority or a service provider certificate of operating authority by the Texas Public Utility Regulatory Act of 1995, as amended, (PURA), as those terms are defined by PURA, to provide telecommunication services in the city.

City. The City of Bellaire, Texas, a home-rule municipal corporation.

City manager. The city manager of the City of Bellaire, or his or her designee, charged with the administration and enforcement of this article.

City property. All real property owned by the city, other than public rights-of-way as that term is defined herein, and all other property held in a proprietary capacity by the city, which are not subject to right-of-way licensing and franchising as provided in this title.

City requirements. All laws, rules, regulations, policies and directives of general application of the city, in effect at present or to be adopted in the future by the city council.

Director of public works. The director of the department of the city, or his or her designee, charged with the administration of the public rights-of-way.

Federal Communication Commission or FCC. The federal agency or its successor agency that is the regulatory authority over the telecommunication providers.

Network element. A facility or equipment used in the provision of telecommunications service, such as the local loop, that is on or in the public rights-of-way.

Permit. A permit is the municipal consent granted by the city council to providers to use public rights-of-way to place a telecommunications network within the city as specified by the terms of such permit and consistent with this article.

Person. An individual, corporation, association, partnership, joint venture or other entity.

Public rights-of-way. The surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, easement or similar property within the city.

Public Utility Commission of Texas or PUC. The Texas state agency having jurisdiction over telecommunications providers.

Telecommunications network or network. All facilities of any kind placed in, on or above the public rights-of-way and used to provide telecommunications services.

Telecommunications service provider or provider. A person, who is required by this article to obtain a permit, or who has been granted the right by a permit to place a telecommunications network within the city in accordance with this article.

Telecommunications services. The transmittal of voice, data, image, graphics and other communications between or among points by wire, fiber optics, or other similar facilities, as well as the rental, lease, or furnishing of the facilities to accomplish such transmittal, but does not include transmissions for long distance purposes (interLATA and intraLATA) or any "wireless service" as defined by law.

Utility infrastructure. All city electric utility distribution poles, transmission structures, ducts and all other city owned or operated transmission structures, distribution conduit, building entry conduit, utility tunnels, manholes, vaults, radio towers, other radio equipment, fiber optic cable capacity and active communications capacity, together with all appurtenant facilities.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

[3.1.] Any person proposing to place a telecommunications network within the public rights-of-way shall submit an application to the city manager. The application shall be in a form prescribed by the city manager as generally described below, and shall outline applicant's proposed network and its impact on the public rights-of-way. The city manager may require the following information in the application:

1. The identity of the applicant.

2. A general description of the telecommunications services that will be offered or provided by the applicant over its existing or proposed telecommunications network.

3. A general description of the principal transmission medium that will be used by the applicant to offer or provide such telecommunications services.

4. Preliminary engineering plans, specifications and a network map of the facilities to be located within the city, to the extent available at the time of the application, all in sufficient detail to identify:

(a) The location and route requested for any proposed telecommunications network including whether such location and route will be above ground or underground.

(b) To the extent known, the location of existing overhead and underground public utility, telecommunication, cable, water, sewer, drainage and other facilities in the public rights-of-way along the proposed route.

(c) To the extent known, the location(s), if any, for interconnection with other telecommunications facilities or network's of other telecommunications service providers.

(d) To the extent known, the specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.

5. A preliminary construction schedule including estimated completion dates.

6. A preliminary traffic control plan in accordance with the Texas Department of Transportation Manual on Uniform Traffic Control Devices if construction activities will result in the blocking of any lanes of traffic in a given area for more than four hours.

7. Information to establish to the city's satisfaction, that the applicant will obtain all other governmental approvals and permits prior to construction and operation of the telecommunications network and prior to offering or providing the telecommunications services including but not limited to any approvals or permits required by the PUC and/or FCC.

8. Whether the applicant intends to provide cable service or other video programming service, such as an open video system, as defined in the cable act, together with sufficient information to determine whether such service is subject to cable franchising under the cable act.

9. Map showing the location of any existing telecommunications network in the city that applicant intends to use or lease other than its own.

10. All fees, deposits or charges required pursuant to this article.

11. Such other and further information as may reasonably be requested by the city manager in order to protect the city's rights-of-way.

3.2. Authority of the city manager. The city manager shall administer and enforce compliance with respect to all permits granted under this article. The city manager shall have the duty to review applications submitted under this article and formulate recommendations to the city council regarding a permit for the applicant. a recommendation to city council or a written notice of denial to the applicant shall be given within 120 days after a completed application has been submitted to the city manager, such time frame may be extended for cause. The city manager shall negotiate the terms of permits (consistent with and to the extent not prescribed in this article) for adoption by the city council. The city manager shall consider the following:

3.2.1. The capacity of the public rights-of-ways to accommodate the applicant's proposed facilities.

3.2.2. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the permit is granted.

3.2.3. The public interest in minimizing the cost and disruption of construction within the public rights-of-ways.

3.2.4. The effect, if any, on public health, safety and welfare if the permit is granted.

3.2.5. The effect, if any, on the environment and quality of life within the city if the permit is granted.

3.2.6. The availability of alternate routes and/or locations for the proposed facilities.

3.2.7. Applicable federal and state telecommunications laws, regulations and policies.

3.2.8. The legal authority of the applicant.

3.2.9. Such other factors as may demonstrate that the authorization to use the public rights-of-way will serve the community interest.

3.3. City council action. All permits approved by city council under this article shall incorporate each applicable provision of this article. All new or renewal permits must be approved by city council to be effective. The act of approval, consenting to, amending, denying or terminating permits is a legislative function within the sound discretion of the city council. Any person who is denied a permit or whose permit is terminated must petition the city council for reconsideration before seeking judicial remedies.

3.4. Priority of usage. In case of conflict or interference between the facilities of different providers, the provider whose facilities were first permitted shall have priority over a competing use of the public rights-of-way.

3.5. No right to use city property or utility infrastructure granted by permit. The grant of a permit under this article shall not be construed to grant any attachment rights or authorize the use of any city property or utility infrastructure in any manner not specified in the permit without additional compliance by the provider with other applicable city requirements.

3.6. Review is no guarantee of sufficiency. 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.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

4.1. Administrative fee. To reimburse the city for its initial administrative costs in processing the application each applicant for a new permit or renewal of a permit shall submit a $5,000.00 administrative fee deposit. the administrative fee is to defray the cost to the city in reviewing and processing the application, and preparing and issuing the permit. If a permit is not granted to the applicant by the city, the city shall reimburse to the applicant that portion of the $5,000.00 administrative fee deposit determined by the city manager to be in excess of the city's cost in reviewing and evaluating the application. If a permit is granted, the administrative fee deposit may be recovered by the provider as a credit against the amount of fees payable to the city pursuant to subsection 4.2 during the first year following the effective date of the permit.

4.2 Public rights-of-way use fees. Each provider shall pay to the city as compensation for use of the city's rights-of-way, a fee as set forth below.

(a) Access line calculation for public rights-of-way use fee. The provider shall pay to the city a rights-of-way fee that is calculated as of month-end by applying the appropriate line fee to each access line owned, placed, or maintained by provider that is activated for use by an end-user or for another telecommunications service provider that uses provider's services or for facilities for the provision of telecommunications services within the city. The line fee to be applied to each residential access line and each nonresidential access line on a monthly basis shall be the fee structure as established annually by the Texas Public Utilities Commission.

(b) Street crossing calculation for public rights-of-way use fee. Any person whose facilities are located within the city, but are not used to provide telecommunications service within the city by means of access lines upon which line fees are applicable, shall pay the city an annual rights-of-way use fee of:

(i) $2.50 per linear foot for each diameter inch or less of underground conduit or wire and for each .250 diameter inch or less of aerial wire that is in the public rights-of-way per annum; and

(ii) $1,000.00 for the first street crossing and $250.00 for every street crossing thereafter.

The right-of-way use fee calculated on this basis shall be due and payable to the city on July 15 of every year, prorated as applicable. A report as required by the city manager shall be provided with each annual payment showing the calculation of the payment including the length of the network and whether it is overhead or underground as applicable, and the location of each street crossing.

(c) Such fees, are 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 permit. Each permit shall provide that such fee may be adjusted by action of the city council once every three years to properly reflect the then current reasonable rental value of the public rights-of-way and administrative cost to the city.

4.3. Number of access lines. Subject to the city's agreement not to disclose the information unless required by law, each provider must provide annually, within a reasonable time after receipt of the city's written request, a report showing the number of each type of access line owned or placed and maintained by provider within the city that are activated for end-user customers and other telecommunications service providers at month's end for each of the preceding 12 months. The city agrees that the report shall be used solely for the purpose of verifying the number of the provider's access lines within the city that are activated for end-user customers and telecommunications service providers. Upon written request, the provider shall verify the information in the report and, upon reasonable advance notice, produce to the city and permit inspection by the city of all non-customer-specific records and documents reasonably calculated to verify the information. For purposes of payment of fees for use of the rights-of-way, lines terminating at customer's premises that are billed as "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.

4.4. Confidential records. If the provider notifies the city of the confidential nature of any information, reports, documents, or writings, and such information, reports, document or writings are prominently labeled as confidential, 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 request an attorney general's opinion before disclosing any confidential information, reports, documents or writings and will furnish the provider with copies of attorney general opinion requests it makes pertaining to the provider's confidential information, reports, documents or writings. Upon request by the city, the provider shall provide assistance in preparing and submitting the request for an attorney general's opinion.

4.5. Timing of payment. Except as provided in section 4.2(b), providers shall remit the rights-of-way use fee on a quarterly basis. The payment shall be due on the 45th day following the close of each calendar quarter for which the payment is calculated.

4.6. Uncollectibles. Providers have a statutory right to pass through to customers on a pro rata basis any compensation paid to the city for access to the rights-of-way. Any other provision of this article notwithstanding, provider shall not be obligated to pay the city for any access lines for which revenues remain uncollectible.

4.7. Facilities provided to other telecommunications service providers. To the extent allowed by applicable state and federal law, any telecommunications service providers that purchase unbundled network elements or other facilities for the purpose of rebundling those facilities to create telecommunications service for sale to persons within the city shall pay to the city a rights-of-way fee that is calculated as of month-end by applying the appropriate line fee, as specified in section 4.2(a) above, to each access line created by rebundling services of facilities. Such direct payment to the city is necessary because it is only the person creating the services for resale that will be able to determine the number of access lines being provided, so that the rights-of-way fee imposed herein can be applied on a non-discriminatory 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 unbundled network elements or other facilities provided to other telecommunications service providers for rebundling into telecommunications services, if the telecommunications service provider that 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 provider provides a copy of the signed statement to the city, then provider is absolved of all responsibility for the line fees payable on the telecommunications service, unbundled network elements, and other facilities rebundled for the creation of telecommunications service for sale within the city.

4.8. Fee application to leased facilities. Pursuant to V.T.C.A., Utilities Code § 54.206, a provider may collect the line fee imposed by the city pursuant to this ordinance through a pro rata charge to the customers in the boundaries of the city, including any other persons who are leasing, reselling or otherwise using the provider's access lines to provide telecommunications service. 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 line fee shall apply until such time as the person using the access lines provides to the provider sufficient written information to determine the correct line fee. If a person provides sufficient written information for the application of the line fee, providers may bill the person on the basis of the information provided. 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 line fees resulting from the provider's reliance upon the written information provided by any person that uses provider's service or facilities for the provision of telecommunications service to end-user customers.

4.9. Default. Notwithstanding any other provision in this article, in the event that full and proper payments due the city under this article or the permit have not been made by a provider within 20 days after the due date, an event of default shall have occurred, in which case the permit may be terminated by the city. Any provider that is found to be in default and whose permit has been terminated for non-payment of fees, may not apply for another permit until all past due fees have been paid.

4.10. No release. No acceptance of any payment shall be construed as a release of, or an accord or satisfaction of, any claim that the city might have for further or additional sums payable under the terms of this article or a permit, or for any other performance or obligations of provider.

4.11. Other city fees, taxes and charges. Payments of compensation made by a provider to the city pursuant to this article or a permit shall be considered in addition to, and exclusive of, any and all authorized taxes, business license fees, other fees, other levies or assessments presently in effect, or subsequently adopted, to the extent provided under applicable law.

4.12. Books and records.

4.12.1. Upon written request from the city manager, providers shall report to the city such other information as the city manager may reasonably require to ensure correct payments to the city are made and shall comply with the city's reasonable determination of forms for reports, the time for reports, the frequency with which any reports are to be made, and if reports are to be made under oath.

4.12.2. Providers shall promptly make available to the city or a city designated representative, its books and records to examine, audit, review and/or obtain copies of the papers, books, accounts, documents, maps, plans and other records of providers pertaining to permits granted under this article to ensure proper payments are made to the city. Providers shall fully cooperate in making available its records and otherwise assisting in these activities.

4.12.3. The city manager may, at any time, make inquiries pertaining to providers' performance of the terms and conditions of a permit. Providers shall respond to such inquiries on a timely basis.

(Ord. No. 11-033, § 1(App. A), 4-19-2011; Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

5.1. No permit granted under this article, or any rights or privileges of providers under a permit, either separately or collectively, shall be sold, resold, assigned, transferred or conveyed by providers to any other person, without the prior written consent of the city by ordinance or resolution. Should the provider sell, assign, transfer, convey or otherwise dispose of any of its rights or interests under this permit, without the city's prior consent, the city may revoke the permit for default, in which event all rights and interest of the provider under the permit shall cease.

5.2. Any transfer in violation of this section shall be null and void and unenforceable.

5.3. 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.

5.5. Every permit granted under this article shall specify that any transfer or other disposition of rights which has the effect of circumventing payment of required permit fees and/or evasion of payment of such fees by non-collection or non-reporting of revenues derived from telecommunications services, bartering or any other means which evade the actual collection of revenues for business pursued by a provider is prohibited.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

6.1. Compliance with law. Providers are explicitly subject to the police powers of the city, any other governmental powers, and the city's rights as a property owner under state and federal laws. All work done by providers in connection with the construction, expansion, reconstruction, maintenance or repair of its facilities in the public rights-of-way shall be subject to and governed by all city requirements, and applicable federal and state rules and regulations. Providers shall place certain facilities underground when required by applicable city requirements provided, however, that such requirement may be waived by the city manager should he find that such requirement places an undue burden or expense on the provider without a commensurate benefit to the city, or its residents. For this section, the term "provider" shall also mean a person who controls or manages physical transmission facilities, and all appurtenant equipment, installed in the public rights-of-way.

6.2. Providing timely information. Upon request, providers shall provide the city timely information as to all matters in connection with or affecting the construction, expansion, reconstruction, removal, maintenance, operation and repair of facilities performed by providers in the public rights-of-way.

6.3. Construction work regulation, maintenance and underground conduit use.

6.3.1. All excavations and other construction in the public rights-of-way shall be performed in accordance with all applicable city requirements, including the obligation to use trenchless technology whenever possible and economically practical. Furthermore, all such construction shall be undertaken so as to minimize interference with the use of public and private property and in accordance with any direction given by the city under the police and regulatory powers of the city.

6.3.2. In addition to any other city requirements, 30 days prior to the commencement of construction which involves any non-emergency alteration to the surface or the sub-surface of the public rights-of-way, to the extent generally required, providers shall furnish the public works director (or such other officials as the city may designate from time to time) with construction plans and maps showing the routing of any new construction and construction plans. Providers shall not commence non-emergency construction until the plans and drawings have been approved in writing by the public works director. Such approval shall not be unreasonably withheld or delayed and appeal to the city council shall be afforded to the provider.

6.3.3. Upon request by written notice of the city, providers shall promptly remove and abate any facility that is determined by the city to pose a threat to public safety. Providers and the city shall cooperate to the extent possible to assure continuity of service during the removal. If any provider, after notice, fails or refuses to act, the city may remove or abate the same, at the sole cost and expense of such provider which shall be promptly paid to the city, all without compensation or liability for damages to the provider.

6.3.4. Upon completion of initial or any subsequent construction or repair work, providers shall promptly restore the public rights-of-way in accordance with applicable city requirements. Providers may excavate only for the construction, installation, expansion, repair, removal, and maintenance of all or a portion of its telecommunications network.

6.3.5. Except in an emergency, provider shall not excavate any pavement in any public alley or street or significant amounts of any unpaved public right-of-way without first complying with all applicable city requirements.

6.3.6. Within 120 days of completion of each segment of providers' telecommunications network, or any addition thereto, each provider shall supply the city with a complete set of "as built" drawings for that segment or addition in the format in which the provider keeps such records in the normal course of business. Providers shall also obtain the city's approval before any relocation of providers' telecommunications network in the public rights-of-way. In addition, providers shall provide to the city, upon request, a map of its telecommunications network.

6.4. Work by others, construction by abutting owners and alterations to conform with public improvements.

6.4.1. The city reserves the right to lay and permit to be laid, sewer, gas, water, and other pipe lines or cables and conduits, and to do and permit to be done, any underground and overhead work, and any attachment, restructuring or changes in aerial facilities that may be deemed necessary or proper by the city in, across, along, over or under any public street, alley or right-of-way occupied by providers, and to change any curb or sidewalk or the grade of any street.

6.4.2. In the event that, during the term of the permit, the city authorizes abutting landowners to occupy space under the surface of any public street, alley, or right-of-way, such grant to an abutting landowner shall be subject to the rights herein granted to providers. In the event that the city shall close or abandon any public right-of-way, which contains any portion of providers' facilities, any conveyance of land contained in such closed or abandoned public right-of-way shall be subject to the rights herein granted.

6.4.3. During the term of all permits, providers shall be liable to the city for the acts or omissions of any entity used by providers when such entity is involved directly or indirectly in the construction and installation of providers' facilities to the same extent as if the acts or omissions of such entity were the acts or omissions of a provider.

6.4.4. Within 90 days following written notice from the city, providers shall, at their expense, temporarily or permanently remove, relocate, change or alter the position of any of their facilities or telecommunications network that are in the public rights-of-way whenever the city shall have determined that such removal, relocation, change or alteration is necessary for:

(a) The construction, repair, maintenance or installation of any city or other public infrastructure improvement in or upon the public rights-of-way; or

(b) The operations of the city in or upon the public rights-of-way.

7.1. Providers shall obtain and maintain in full force and effect throughout the term of a permit granted under this article, insurance with an insurance company licensed to do business in the State of Texas and acceptable to the city as determined by the city manager. All companies will be required to be rated A-VI or better by A.M. Best or A or better by Standard and Poors. Providers shall furnish the city with proof of such insurance so required at the time of filing the application for a permit. The city reserves the right to review these insurance requirements during the effective period of any permit, and to reasonably adjust insurance coverage and their limits when deemed necessary and prudent by the city's risk manager, based upon changes in statutory law, court decisions, or the claims history of the industry or the provider.

7.2. Subject to providers' right to maintain reasonable deductibles in such amounts as are approved by the city's risk manager, providers shall obtain and maintain in full force and effect for the duration of any permit, at providers' sole expense, insurance coverage in the following type and minimum amounts:

*Combined single limit for bodily injury and property damage of $10,000,000.00 per occurrence or its equivalent.

**Combined single limit for bodily injury and property damage of $2,000,000.00 per occurrence or its equivalent.

7.3. The city manager shall be entitled, upon request and without expense, to receive copies of certificates of insurance evidencing coverage stated above. The city manager also may make any reasonable requests for deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, except where policy provisions are established by law or relation binding upon either city or a provider or upon the underwriter for any of such policies. Upon request for deletion, revision or modification by the city manager, providers shall accomplish the changes and shall pay the cost thereof.

7.4. Providers shall agree that with respect to the above-required insurance, all insurance certificates will contain the following required provisions:

(i) Name the city and its officers, employees, board members and elected representatives as additional insureds (as the interests of each insured may appear) as to all applicable coverage;

(ii) Provide for 60 days notice to the city for cancellation, non-renewal, or material change;

(iii) Provide for notice to both the city manager and the city clerk by certified mail; and

(iv) Provide that all provisions of the permit, as amended, concerning liability, duty, and standard of care, including the indemnity section, shall be underwritten by contractual coverage sufficient to include such obligations within applicable policies, subject to policy terms and conditions.

7.5. The insurance certificates obtained by providers in compliance with this section 33-7 shall be subject to approval by the city manager, and such proof of insurance shall be filed and maintained with the city manager and the city clerk during the term of the permit, or any extension or renewal thereof, and may be changed from time to time to reflect changing liability limits' as required by the city. Providers shall immediately advise the city attorney of any actual or potential litigation that may develop that would affect insurance coverage related to any permit.

7.6. Insurers shall have no right of recovery against the city, it being the intention that the insurance policies shall protect providers and the city and shall be primary coverage for all losses covered by the policies.

7.7. The policy clause "other insurance" shall not apply to the city where the city is an insured on the policy.

7.8. Companies issuing the insurance policies shall have no recourse against the city for payment of any premiums or assessments which all are set at the sole risk of the providers. Insurance policies obtained by provider shall provide that the issuing company waives all right of recovery by way of subrogation or assignment against the city in connection with any damage covered by these policies.

7.9. When presented with adequate financial documentation from the provider and in compliance with applicable state laws, the city manager may accept in lieu of the insurance requirements described above, a self-insurance provision in the permit which provides substantially similar protection to the above requirements.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

The term of each permit granted under this article shall be subject to specific negotiation with applicants consistent with this article, but in no event shall it exceed ten years.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

9.1. Each provider shall protect, defend, and hold harmless the city, its employees, officers, and legal representatives (collectively in this section, the "city") from any and all third-party claims, demands, and liability, including defense costs, relating in any way to damages, claims, or fines (collectively, "claims") arising by reason of or in connection with:

(1) The city's actual or alleged negligence arising solely from the grant of, administration of, or operations under this article, including, without limitation, the city's approval of work plans, city inspection of the provider's network facilities or the repair or maintenance thereof, the city's receipt or failure to receive insurance policies, or similar acts or omissions of the city in connection with its rights, duties, or obligations under this article; together with

(2) The provider's actual or alleged negligence in the construction, maintenance, or operation of its network facilities in the rights-of-way under this article.

9.2. The provider shall not be required to indemnify or pay the defense costs of the city under subsection 9.1 where:

(1) The claims arise in whole or in part out of the provider's compliance with the city's directives (other than those ordering compliance with applicable laws, ordinances, rules, or regulations) relating to the time, place, or manner of the activities of the provider alleged or found to be negligent; and

(2) There is no finding in a final, nonappealable order or judgment that the provider is 51 percent or more at fault.

9.3. The provisions of this section shall apply notwithstanding any immunity of the provider under the workers compensation laws of the State of Texas.

9.4. Notwithstanding any other provision of this section, the provider shall not be obligated to pay to or on behalf of the city any indemnity, including defense costs, that exceeds in total the greater of $1.00 per access line or $1,200,000.00 for any year. The limits set forth in this subsection shall be based on the year in which the claims arise. Any sums paid for or on behalf of the city under this section shall constitute an additional municipal fee under V.T.C.A., Utilities Code §§ 54.204—54.206.

9.5. The provisions of this section are solely for the benefit of the city and the provider and are not intended to create or grant any rights, causes of action, or liability, contractual or otherwise, to any person or entity.

9.6. Subject to the right of the provider to pass through sums paid under this section, the provisions of this section shall survive the expiration of this article.

10.1. Each permit shall contain requirements for construction bonds and/or payment and performance bonds during construction, as necessary to ensure compliance with this article and the permit. The amount of any such bonds shall not exceed the amount necessary to assure that the construction work will be performed in compliance with all applicable city codes.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

11.1. The city shall reserve the right to terminate any permit and any rights or privileges granted under this article in the event of a breach of the terms and conditions of the permit or of this article, subject to a 30 day written notice and the opportunity to cure the breach during that 30 day period.

11.2. A 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 managers, officers, agents or employees.

11.3. A termination shall be declared only by a written decision 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 permit. Such notice shall state the grounds for termination alleged by city.

11.4. The provision of this section 11 shall not apply to any automatic termination resulting from a default of payment as set forth in section 33-4, above.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

12.1. It shall be unlawful for any person to place a telecommunications network or any facilities on, in or over the public rights-of-way, city property, city structures or utility infrastructure unless expressly allowed under this article or the terms of a permit.

12.2. Each unauthorized use shall be deemed to be a distinct and separate offense. Each day a violation of this article continues shall constitute a distinct and separate offense.

12.3. The violation of any provision of this article shall be unlawful and a misdemeanor offense.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

No provision of this article or a permit shall be deemed void or unenforceable as a result of state or federal preemption unless and until so determined by a final, nonappealable order of a state or federal agency or court.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

14.1. To the extent not in conflict with the federal laws relating to telecommunications, the laws of the State of Texas shall apply to any permit granted under this article and venue for any dispute with respect to such permit shall be in Harris County, Texas.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

The purpose of this article is to adopt rules to ensure that the city complies with the requirements of State Bill No. 1004 passed by the Texas Legislature, 85th Regular Session (2017), which authorizes certain facilities to be installed in a municipality's public right-of-way, and at the same time, protects the health, safety and welfare of the public.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

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:

Antenna. Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

Cable service. As defined in the Cable Communications Policy Act of 1984, as amended 47 U.S.C. 532.

City Code. The Code of Ordinances of the City of Bellaire, Texas.

City manager. The city manager or designee of the city manager.

Collocate and collocation. The installation, mounting, maintenance, modification, operation, or replacement of network nodes in a right-of-way on or adjacent to a pole.

Consumer Price Index. The annual revised Consumer Price Index for All Urban Consumers for Texas, as published by the Federal Bureau of Labor Statistics.

Concealment. Any wireless facility that is covered, blended, painted, disguised, camouflaged, or otherwise concealed such that the wireless facility blends into surrounding environment and is visually unobtrusive. Concealment includes but is not limited to covering with a facade, designs that blend with the surrounding character of an area, paint that matches surrounding poles, disguising with landscaping, or locating underground.

Decorative pole. A streetlight pole specifically designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specifically designed informational or directional signage or temporary holiday or special event attachments have been placed or are permitted to be placed according to City Code.

Design area. An area that is zoned, or otherwise designated by City Code, and for which the city maintains and enforces unique design and aesthetic standards.

Design manual. The design requirements in effect at the time of a permit application, or the commencement of work not required to obtain a permit, for specific types of facilities, including any other city requirements, as amended from time to time.

Development director. The director of the development services department or his or her designee.

Historic area. An area that is zoned or otherwise designated as a historic area under municipal, state, or federal law.

Network node or node. Equipment as a fixed location that enables wireless communications between network provider equipment and a communications network. The term includes: (i) equipment associated with wireless communications; (ii) a radio transceiver, and antenna, a battery-only backup power supply, and comparable equipment, regardless of technological configuration; and (iii) coaxial or fiber-optic cable that is immediately adjacent to and directly associated with a particular collocation; and does not include: (i) and electric generator; or (ii) a pole.

Network provider. A person that provides wireless service to the public; or a person that does not provide wireless service and that is not an electric utility but builds or installs on behalf of a person that provides wireless service to the public: network nodes, node support poles, or any structure that supports or is capable of supporting a network node.

New node support pole or new pole. A new installation, including any extension or replacement of an existing pole where the replacement is not accepted from permit requirements under this article.

New support pole. A pole installed by a network provider for the primary purpose of supporting a network node.

Park. Any property dedicated or used as a park or for public park purposes or that may be dedicated or used as a park or for public park purposes within the city.

Permit. A written authorization for the use of the right-of-way including, collocation on a service pole, required from the city before a network provider may perform an action under this article.

Permit holder. Any person that has been issued a permit pursuant to the terms of this article.

Pole. A service pole, node support pole, utility pole, or municipally owned utility pole.

Public utility. Defined in V.T.C.A., Utilities Code § 11.004, including municipally owner and/or operated utilities.

Right-of-way. The area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the municipality has an interest.

Service pole. A pole, other than municipal owned utility pole, owned or operated by a municipality and located in a right-of-way, including: a pole that supports traffic control functions; a structure for signage; a pole that supports lighting; other than a decorative pole; and a pole or similar structure owned or operated by a municipality and supporting network nodes.

Street. The portion of the right-of-way, including highway, designed or used for vehicular traffic, including that part of the street marked or platted as a bicycle or public transit lane. Street width shall be the of the following measurements: (i) edge of pavement to edge of pavement, or (ii) curb to curb.

Telecommunications service. Any "local exchange telephone service" as defined by V.T.C.A., Utilities Code § 51.002.

Transport facility. Each transmission path physically within a right-of-way, extending with a physical line from a network node directly to a network, for the purpose of providing backhaul for network nodes.

Wireless service. Any service, using licensed or unlicensed wireless spectrum, including the use of Wi-Fi, weather at a fixed location or mobile, provided to the public using a network node.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017; Ord. No. 18-077, § 1(Exh. A), 12-17-2018)

103.1 Application for a permit. Any person proposing to place a network nodes, node support poles, and/or transport facilities within the public rights-of-way shall submit an application to the development director. The application shall be in a form prescribed by the development director as generally described below, and shall outline applicant's proposed facilities and its impact on the public rights-of-way. The development director may require the following information in the application:

A. The identity of the applicant, including a 24/7 contact number in case of emergencies.

B. The name and address of the person to who notices are to be send.

C. A general description of the services that will be offered or provided by the applicant over its existing or proposed facilities.

D. A general description of the type of facilities that will be used by the applicant to offer or provide such services.

E. Preliminary engineering plans, specifications and a network map of the facilities to be located within the city, to the extent available at the time of the application, all in sufficient detail to identify:

(1) The location, route, and type of structure requested for any proposed telecommunications network including whether such location and route will be above ground or underground.

(2) To the extent known, the location of existing overhead and underground public utility, telecommunication, cable, water, sewer, drainage and other facilities in the public rights-of-way within 300 feet of the proposed route.

(3) To the extent known, the location(s), if any, for interconnection with other telecommunications facilities or networks of other telecommunications service providers.

(4) To the extent known, the specific trees, structures, improvements, pavement, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.

F. A preliminary construction schedule including estimated completion dates.

G. A preliminary traffic control plan in accordance with the Texas Department of Transportation Manual on Uniform Traffic Control Devices if construction activities will result in the blocking of any lanes of traffic in a given area for more than four hours.

H. A traffic control test for line of sight.

I. When a new pole is proposed, an industry standard pole load analysis certified by a licensed engineer.

J. Soil tests or geotechnical survey where required.

K. Information to establish to the city's satisfaction, that the applicant will obtain all other governmental approvals and permits prior to construction and operation of the facilities and prior to offering or providing the services including but not limited to any approvals or permits required by the PUC and/or FCC.

L. Map showing the location of any existing facilities in the city within 500 feet of the proposed location.

M. Proof of insurance.

N. All fees, deposits or charges required pursuant to this article, including permit fee and prorated right-of-way fee.

O. Such other and further information as may reasonably be requested by the development director in order to protect the city's rights-of-way.

P. Aerial map showing the location of the existing poles to which the network node is proposed to be attached, and a street view image.

Q. Scaled dimensioned drawings or pictures of the proposed attachments of the network node to the existing poles or structures as well as any other proposed equipment associated with the proposal, indicating the spacing from existing curb, driveways, sidewalk, and other existing light poles and any other poles or appurtenances. This shall include a before-and-after image of the pole and all proposed attachments and associated standalone equipment.

R. A statement indicating that network nodes will not be installed in a location that causes any electrical interference and that network nodes will not be allowed on city's public safety radio infrastructure.

S. An analysis showing that a proposed new node support pole is spaced at least 300 linear feet from another existing pole that is capable of supporting network nodes along the proposed location, unless otherwise approved by the development director in writing;

T. A traffic study by a licensed traffic engineer prior to the installation of any newly proposed pole or other ground mounted equipment to confirm visibility clearance for vehicular and pedestrian traffic and off street parking safety.

103.2. Priority of usage. In case of conflict or interference between the facilities of different providers, the provider whose facilities were first permitted shall have priority over a competing use of the public rights-of-way.

103.3. No right to use city property or utility infrastructure granted by permit. The grant of a permit under this article shall not be construed to grant any attachment rights or authorize the use of any city property or utility infrastructure in any manner not specified in the permit without additional compliance by the provider with other applicable city requirements.

103.4. Review is no guarantee of sufficiency. Review and approval by the city does not constitute a guarantee of sufficiency of the design of the facilities. The applicant retains full responsibility for the adequacy of the design of the facilities.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017; Ord. No. 18-077, § 1(Exh. A), 12-17-2018)

104.1. Routine maintenance. A network provider is not required to obtain a permit for routine maintenance of network nodes, node support poles, and/or transport facilities that does not require excavation or closing of sidewalks or vehicular lanes in the right-of-way.

104.2. Replacing or upgrading. A network provider is not required to obtain a permit for replacing or upgrading a network node or pole that is substantially similar in size or smaller and that does not require excavation or closing of sidewalks or vehicular lanes in the right-of-way. For the purposes of subsection 104.2:

A. A new or upgraded network node or node support pole is considered "substantially similar" if the equipment, including antenna, will not be more than ten percent larger and the pole will not be ten percent higher than the existing, permitted equipment and/or pole.

B. The replacement of an existing node support pole in not included within subsection 104.2.

C. The replacement or upgrade does may not violate concealment requirements for the network node or node support pole or height restrictions required in the design guide.

104.3. Network node strung on cables. A network provider is not required to obtain a permit for the installation, placement, maintenance, operation, or replacement of micro network nodes that are strung on cables between existing poles or node support poles, in compliance with the National Electrical Safety Code.

104.4 Notice required. A network provider must provide the city with 48 hours advance written notice to the development director, or his/her designee, of intent to perform work that does not require a permit.

104.5. Pole owner approval. A network provider may replace or upgrade a pole only with the approval of the pole's owner and written confirmation of such approval shall be submitted to the city with the notice.

104.6. Size limitations. The size of any upgraded or replaced network node or pole may not exceed the size limitations in the design guide.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017; Ord. No. 18-077, § 1(Exh. A), 12-17-2018)

105.1. Permit fee. Except as otherwise provided by V.T.C.A., Local Government Code ch. 283 or ch. 284, the network provider shall pay to the city a permit fee that is calculated as of the date of the application for permit by applying the appropriate permit fee to each of the facilities included in the application, in accordance with the city's fee schedule, not to exceed the values provided in the table below.

105.2. Public rights-of-way use fees. The permit holder shall pay to the city a rights-of-way fee that is calculated in accordance with V.T.C.A., Local Government Code ch. 283 or ch. 284, an agreement with the city, or the table below, as applicable. The rights-of-way fee for network nodes, node support poles, and transport facilities shall be prorated for the first year in which the permit is paid, and shall be paid at the time of the permit application.

Unless equal or greater amount is paid under V.T.C.A., Local Government Code ch. 283 or ch. 284, or V.T.C.A., Utilities Code ch. 66.

As adjusted by an amount equal to one-half the annual change, if any, in the Consumer Price Index. The city shall provide written notice to each network provider of the new rate; and the rate shall apply to the first payment due to the city on or after the 60 ^th day following the written notice.

Collocated network nodes on city service poles shall also pay an annual collocation fee at a rate not greater than $20.00 per year per service pole.

A network provider may not install its own transport facilities unless the provider: (i) has a permit to use the right-of-way; and (ii) pays to the city a monthly right-of-way rate for transport facilities in an amount equal to $28.00 multiplied by the number of the network provider's network nodes located in the right-of-way for which the installed transport facilities provide backhaul unless or until the time the network provider's payment of fees to the city exceeds its monthly aggregate per-node compensation to the city. A network provider that wants to connect a network node to the network using the right-of-way may: (i) install its own transport facilities as provided in this article; or (ii) obtain transport service from a person that is paying municipal fees to occupy the right-of-way that are the equivalent of not less than $28.00 per node per month. A right-of-way rate required by this article is in addition to any other right -of-way rate required by the city.

105.3. Annexation and disannexation. For the purpose of compensating the city under this article, a permit holder shall start including or excluding structures within an annexed or disannexed area within 30 days of written notice by the city to the permit holder of the annexation or disannexation

105.4. Timing of rights-of-way fee payment. Permit holder shall remit the rights-of-way fees on an annual basis, unless otherwise proscribed by V.T.C.A., Local Government Code ch. 284 or a written agreement with the city. Unless otherwise mandated by state law, the payment of rights-of-way fees shall be due on January 31st of each year following the year in which a permit fee and prorated right-of-way fee was paid, and each subsequent year until (i) the structures are removed from the right-of-way and written notice is provided to the city, or (ii) the structures are no longer owned by the permit holder and written notice of the new owner's name, address, and phone number are provided to the city.

105.5. Default. Notwithstanding any other provision in this article, in the event that full and proper payments due the city under this article or the permit have not been made by a permit holder within 20 days after the due date, an event of default shall have occurred, in which case the permit may be terminated by the city. Any provider that is found to be in default and whose permit has been terminated for non-payment of fees, may not apply for another permit until all past due fees have been paid.

105.6. No release. No acceptance of any payment shall be construed as a release of, or an accord or satisfaction of, any claim that the city might have for further or additional sums payable under the terms of this chapter or a permit, or for any other performance or obligations of permit holder.

105.7. Confidential records. If the permit holder notifies the city of the confidential nature of any information, reports, documents, or writings, and such information, reports, document or writings are prominently labeled as confidential, 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 permit holder's confidential information, reports, documents, or writings, the city shall notify the permit holder of the request in writing. The city shall request an attorney general's opinion before disclosing any confidential information, reports, documents or writings and will furnish the provider with copies of attorney general opinion requests it makes pertaining to the permit holder's confidential information, reports, documents or writings. Upon request by the city, the permit holder shall provide assistance in preparing and submitting the request for an attorney general's opinion.

105.8. Books and records.

A. Upon written request from the development director, permit holders shall report to the city such other information as the development director may reasonably require to ensure correct payments to the city are made and shall comply with the city's reasonable determination of forms for reports, the time for reports, the frequency with which any reports are to be made, and if reports are to be made under oath.

B. Permit holders shall promptly make available to the city or a city designated representative, its books and records to examine, audit, review and/or obtain copies of the papers, books, accounts, documents, maps, plans and other records of permit holders pertaining to permits granted under this chapter to ensure proper payments are made to the city. Permit holders shall fully cooperate in making available its records and otherwise assisting in these activities.

C. The development director may, at any time, make inquiries pertaining to permit holders' performance of the terms and conditions of a permit. Permit holders shall respond to such inquiries on a timely basis.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017; Ord. No. 18-077, § 1(Exh. A), 12-17-2018)

106.1. Advance notice required. The city manager shall be notified 48 hours in advance that construction is ready to proceed by either the permit holder, their contractor or representative, including the name, address, and phone numbers of the contractor performing the actual construction, and the name and telephone number of the individual who will be available at all times during construction. Failure to provide the information will result in the suspension of the permit until the required information is received.

106.2. Conformance to other laws. Permit holders are explicitly subject to the police powers of the city, any other governmental powers, and the city's rights as a property owner under state and federal laws. All work done by permit holders in connection with the construction, expansion, reconstruction, maintenance or repair of its facilities in the rights-of-way shall be subject to and governed by all city requirements, and applicable federal and state rules and regulations.

106.3. Construction work regulation, maintenance and underground conduit use.

A. All excavations and other construction in the public rights-of-way shall be performed in accordance with all applicable city requirements, including the obligation to use trenchless technology whenever possible and economically practical. Furthermore, all such construction shall be undertaken so as to minimize interference with the use of public and private property and in accordance with any direction given by the city under the police and regulatory powers of the city.

B. In addition to any other city requirements, 30 days prior to the commencement of construction which involves any non-emergency alteration to the surface or the sub-surface of the rights-of-way, to the extent generally required, permit holders shall furnish the development director (or such other officials as the city may designate from time to time) with construction plans and maps showing the routing of any new construction and construction plans. Permit holders shall not commence non-emergency construction until the plans and drawings have been approved in writing by the development director. Such approval shall not be unreasonably withheld or delayed and appeal to the city council shall be afforded to the permit holder.

C. Upon request by written notice of the city, permit holders shall promptly remove and abate any facility that is determined by the city to pose a threat to public safety. Permit holders and the city shall cooperate to the extent possible to assure continuity of service during the removal. If any permit holder, after notice, fails or refuses to act, the city may remove or abate the same, at the sole cost and expense of such permit holder which shall be promptly paid to the city, all without compensation or liability for damages to the permit holder.

D. Upon completion of initial or any subsequent construction or repair work, providers shall promptly restore the rights-of-way in accordance with applicable city requirements. Permit holders may excavate only for the construction, installation, expansion, repair, removal, and maintenance of all or a portion of its facilities.

E. Except in an emergency, provider shall not excavate any pavement in any public alley or street or significant amounts of any unpaved public right-of-way without first complying with all applicable city requirements.

F. Within 120 days of completion of each segment of permit holder's facilities, or any addition thereto, each permit holder shall supply the city with a complete set of "as built" drawings for that segment or addition in the format in which the permit holder keeps such records in the normal course of business. Permit holders shall also obtain the city's approval before any relocation of facilities in the rights-of-way. In addition, permit holders shall provide to the city, upon request, a map of its facilities.

106.4. Work by others, construction by abutting owners and alterations to conform with public improvements.

A. The city reserves the right to lay and permit to be laid, sewer, gas, water, and other pipe lines or cables and conduits, and to do and permit to be done, any underground and overhead work, and any attachment, restructuring or changes in aerial facilities that may be deemed necessary or proper by the city in, across, along, over or under any public street, alley or right-of-way occupied by permit holders, and to change any curb or sidewalk or the grade of any street.

B. In the event that, during the term of the permit, the city authorizes abutting landowners to occupy space under the surface of any public street, alley, or right-of-way, such grant to an abutting landowner shall be subject to the rights herein granted to permit holders. In the event that the city shall close or abandon any public right-of-way, which contains any portion of permit holders' facilities, any conveyance of land contained in such closed or abandoned public right-of-way shall be subject to the rights herein granted.

C. During the term of all permits, permit holders shall be liable to the city for the acts or omissions of any entity used by permit holders when such entity is involved directly or indirectly in the construction and installation of permit holders' facilities to the same extent as if the acts or omissions of such entity were the acts or omissions of a permit holder.

D. Within 90 days following written notice from the city, permit holders shall, at their expense, temporarily or permanently remove, relocate, change or alter the position of any of their facilities that are in the rights-of-way whenever the city shall have determined that such removal, relocation, change or alteration is necessary for:

(1) The construction, repair, maintenance or installation of any city or other public infrastructure improvement in or upon the rights-of-way; or

(2) The operations of the city in or upon the rights-of-way.

106.5 Workmanship and notice of damage. Permit holders are responsible for the workmanship and any damages caused by a contractor or subcontractor. All permit holders shall notify the development director immediately of any damage to utilities or other structures, either city or privately owned.

106.6 When work may be performed. All work of any nature or type, either directly or indirectly relating to the placement, layout, grade, construction, or reconstruction of any facility, improvement, equipment or other thing, along, across, on, over, through, above or under any public street, avenue, alley, right-of-way, public grounds or public place within the city shall be performed between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, with the exclusion of legal holidays. The development director may waive the requirements of this section if it appears to him or her to be in the best interest of the citizens of the city.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017; Ord. No. 18-077, § 1(Exh. A), 12-17-2018)

107.1. Construction requirements. Except where expressly provided otherwise by state law, a permit holder shall construct and maintain structures in the right-of-way in accordance with the design manual to ensure structures do not:

A. Obstruct, impede, or hinder the usual travel or public safety on a right-of-way;

B. Obstruct the legal use of a right-of-way by other persons;

C. Violate nondiscriminatory applicable codes;

D. Violate or conflict with the city's right-of-way design specifications; or

E. Violate the Federal Americans with Disabilities Act of 1990 (ADA).

107.2. Design manual. Structures to which this article applies must conform to the specifications required by the construction codes and design manual as adopted by the city at the time the permit application is submitted.

107.3. Requests for temporary moves. Upon request, the permit holder shall remove or raise or lower its aerial wires, fiber or cables temporarily to permit the moving of houses or other bulky structures. The expense of such temporary rearrangements shall be raise by the party or parties requesting them and the permit holder may require payment in advance. The permit holder may require payment in advance. The permit holder shall be given not less than 48 hours advance notice to arrange for such temporary rearrangements.

107.4 Tree trimming. The permit holder, its contractors and agents have the right, permission and license to trim trees upon and overhanging the rights-of-way to prevent trees from coming in contact with the permit holder's facilities. When directed by the city, tree trimming shall be done under the supervision and direction of the development director.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017; Ord. No. 18-077, § 1(Exh. A), 12-17-2018)

108.1. Proper installation required. Structures in the rights-of-way shall be properly installed, repaired, upgraded and maintained. Structures shall be considered to be improperly installed, repaired, upgraded or maintained if:

A. The installation, repairs, upgrade, or maintenance endangers people;

B. The structures do not meet the applicable city requirements;

C. The structures are not capable of being located using standard practices; or

D. The structures are not located in the proper place in accordance with the plans approved by the development director.

108.2. Existing structures. This section 33-108 shall not apply to structures installed prior to the effective date of the ordinance from which this section derives unless such structures are repaired or upgraded.

108.3 City review of poles. When poles are used, the type of poles, location, depth, upgrade, etc. shall be subject to review of the development director unless otherwise provided by this article.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017; Ord. No. 18-077, § 1(Exh. A), 12-17-2018)

109.1 Restoration of affected property required. Permit holders of the right-of-way shall restore property affected by construction in the right-of-way to a condition that is equal to or better than the condition of the property prior to the performance of the work. This includes, but is not limited to, replacing all natural ground cover with an equal or better type of ground cover damaged during work, either by sodding or seeding, as directed by development director.

109.2 Restoration requirements. Restoration shall be to the reasonable satisfaction of the development director. The restoration shall include, but not be limited to:

A. Installation of all manholes and hand holes, as required;

B. All bore pits, potholes, trenches, or any other holes shall be covered or barricaded daily;

C. Leveling of all trenches and backhoe lines; and

D. Restoration of excavation site to city specifications.

109.3. Locator flags. All locator flags shall be removed during the cleanup process by the permit holder or permit holder's contractor at the completion of the work.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017; Ord. No. 18-077, § 1(Exh. A), 12-17-2018)

110.1. Transfer of permit.

A. No permit granted under this article, or any rights or privileges of network providers under a permit, either separately or collectively, shall be sold, resold, assigned, transferred or conveyed by providers to any other person, without the prior written consent of the city. Should the network provider sell, assign, transfer, convey or otherwise dispose of any of its rights or interests under this permit, without the city's prior consent, the city may revoke the permit for default, in which event all rights and interest of the network provider under the permit shall cease.

B. Any transfer in violation of this section 33-110 shall be null and void and unenforceable.

C. 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.

D. Every permit granted under this article shall specify that any transfer or other disposition of rights which has the effect of circumventing payment of required permit fees and/or evasion of payment of such fees is prohibited.

110.2. Not exclusive. No rights agreed to in this article by the city shall be exclusive and the city reserves the right to grant franchises, licenses, easements, or permissions to use the rights-of-way within the city to any person as the city, in its sole discretion, may determine to be in the public interest.

110.3. Deed restrictions. A permit holder installing structures in right-of-way shall comply with private deed restrictions and other private restrictions in the area.

110.4. Cable service not authorized by permit. A permit holder is not authorized to provide cable service as a cable operator in the city under this article, but must first obtain a franchise agreement from the city for that purpose, under such terms and conditions as may be required by law. A permit for installation, placement, maintenance, or operation of a network node or transport facility under this article shall not confer authorization to provide cable service or video service, as defines by V.T.C.A., Utilities Code § 66.002, or Information Service as defined by 47 U.S.C. Section 153, or wireless service as defines by 47 U.S.C. Section 153, in the right-of-way.

110.5. Interference not permitted; notice and time for correction of interference. A network provider shall ensure that the operation of a network node does not cause any harmful radio frequency interference to a Federal Communications Commission-authorized mobile wireless operation of the city operating at the time the network node was initially installed or constructed. On written notice, a network provider shall take all steps reasonably necessary to remedy any harmful interference. If a network provider fails to correct any harmful interference within 60 days of written notice, the city may upon 14-day advance written notice revoke any and all permits for the network node.

110.6. Permit limited. A permit provided under this article does not provide authorization for attachment of a network nodes on poles and other structures owned or operated by investor-owned electric utilities, as defined by V.T.C.A., Utilities Code § 31.002, electric cooperatives, telephone cooperatives, as defined by V.T.C.A., Utilities Code § 162.003, or wireless providers, as defined by V.T.C.A., Utilities Code § 51.001.

110.7. Other requirements. The city may impose additional requirements on the activities of network providers in the right-of-way to the extent that the regulations are reasonably necessary to protect the health, safety, and welfare of the public.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

111.1. Denial of a permit application. If the city denies a permit application submitted under this article, the city must include specific applicable code provisions or other municipal rules, regulations, or other law on which the denial was based. The network provider shall have 30 days from the date of denial to cure the deficiencies identified in the denial and resubmit without incurring an additional application fee. The city's review of the resubmitted application is limited to deficiencies cited in the denial.

111.2. Termination of a permit. The city shall reserve the right to terminate any permit and any rights or privileges granted under this article in the event of a breach of the terms and conditions of the permit or of this article, subject to a 30-day written notice and the opportunity to cure the breach during that 30-day period.

111.3. When a breach occurs. A breach shall not be deemed to have occurred if the violation occurs without the fault of a network provider or occurs as a result of circumstances beyond its control. Network providers shall not be excused from performance of any of their obligations under this chapter by economic hardship, nor misfeasance or malfeasance of their managers, officers, agents or employees.

111.4. Process for termination. A termination shall be declared only by a written decision 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 network provider at least 15 days prior written notice of any public hearing concerning the proposed termination of its permit. Such notice shall state the grounds for termination alleged by city.

111.5. Does not apply for default of payment. The provision of this section 33-110 shall not apply to any automatic termination resulting from a default of payment as set forth in section 33-105 above.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

112.1 Insurance required. Network providers shall obtain and maintain in full force and effect throughout the term of a permit granted under this article, insurance with an insurance company licensed to do business in the State of Texas and acceptable to the city as determined by the development director. All companies will be required to be rated A-VI or better by A.M. Best or A or better by Standard and Poors. Network providers shall furnish the city with proof of such insurance so required at the time of filing the application for a permit. The city reserves the right to review these insurance requirements during the effective period of any permit, and to reasonably adjust insurance coverage and their limits when deemed necessary and prudent by the city, based upon changes in statutory law, court decisions, or the claims history of the industry or the provider.

112.2. Insurance coverage amounts. Subject to network providers' right to maintain reasonable deductibles in such amounts as are approved by the city, network providers shall obtain and maintain in full force and effect for the duration of any permit, at network providers' sole expense, insurance coverage in the following type and minimum amounts:

* Combined single limit for bodily injury and property damage of $10,000,000.00 per occurrence or its equivalent.

** Combined single limit for bodily injury and property damage of $2,000,000.00 per occurrence or its equivalent.

112.3 City's rights to requests. The development director shall be entitled, upon request and without expense, to receive copies of certificates of insurance evidencing coverage stated above. The development director also may make any reasonable requests for deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, except where policy provisions are established by law or relation binding upon either city or a network provider or upon the underwriter for any of such policies. Upon request for deletion, revision or modification by the development director, network providers shall accomplish the changes and shall pay the cost thereof.

112.4 Insurance certificates. Network providers shall agree that with respect to the above-required insurance, all insurance certificates will contain the following required provisions:

A. Name the city and its officers, employees, board members and elected representatives as additional insureds (as the interests of each insured may appear) as to all applicable coverage;

B. Provide for 60 days notice to the city for cancellation, non-renewal, or material change;

C. Provide for notice to both the development director and the city clerk by certified mail; and

D. Provide that all provisions of the permit, as amended, concerning liability, duty, and standard of care, including the indemnity section, shall be underwritten by contractual coverage sufficient to include such obligations within applicable policies, subject to policy terms and conditions.

112.5 Insurance review by the city. The insurance certificates obtained by network providers in compliance with this section 33-112 shall be subject to approval by the development director, and such proof of insurance shall be filed and maintained with the development director and the city clerk during the term of the permit, or any extension or renewal thereof, and may be changed from time to time to reflect changing liability limits' as required by the city. Network providers shall immediately advise the city attorney of any actual or potential litigation that may develop that would affect insurance coverage related to any permit.

112.6. No right to recovery. Insurers shall have no right of recovery against the city, it being the intention that the insurance policies shall protect network providers and the city and shall be primary coverage for all losses covered by the policies.

112.7. Other insurance clause. The policy clause "other insurance" shall not apply to the city where the city is an insured on the policy.

112.8 Self-insurance. When presented with adequate financial documentation from the network provider and in compliance with applicable state laws, the development director may accept in lieu of the insurance requirements described above, a self-insurance provision in the permit which provides substantially similar protection to the above requirements.

112.9. Self-insurance. When presented with adequate financial documentation from the network provider and in compliance with applicable state laws, the city manager may accept in lieu of the insurance requirements described above, a self-insurance provision in the permit which provides substantially similar protection to the above requirements.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017; Ord. No. 18-077, § 1(Exh. A), 12-17-2018)

113.1. Indemnification. Each network provider shall protect, defend, and hold harmless the city, its employees, officers, and legal representatives (collectively in this section, the "city") from any and all third-party claims, demands, and liability, including defense costs, relating in any way to damages, claims, or fines (collectively, "claims") arising by reason of or in connection with:

A. The city's actual or alleged negligence arising solely from the grant of, administration of, or operations under this article, including, without limitation, the city's approval of work plans, city inspection of the network provider's facilities or the repair or maintenance thereof, the city's receipt or failure to receive insurance policies, or similar acts or omissions of the city in connection with its rights, duties, or obligations under this article; together with

B. The network provider's actual or alleged negligence in the construction, maintenance, or operation of its facilities in the rights-of-way under this article.

113.2. Indemnification not required. The network provider shall not be required to indemnify or pay the defense costs of the city under subsection 113.1 where:

A. The claims arise in whole or in part out of the network provider's compliance with the city's directives (other than those ordering compliance with applicable laws, ordinances, rules, or regulations) relating to the time, place, or manner of the activities of the network provider alleged or found to be negligent; and

B. There is no finding in a final, nonappealable order or judgment that the network provider is 51 percent or more at fault.

113.3. Immunity of network provider. The provisions of this section shall apply notwithstanding any immunity of the network provider under the workers compensation laws of the State of Texas.

113.4. Benefit of the city and network provider. The provisions of this section 33-113 are solely for the benefit of the city and the network provider and are not intended to create or grant any rights, causes of action, or liability, contractual or otherwise, to any person or entity.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

114.1. Bond requirement. Each permit shall contain requirements for construction bonds and/or payment and performance bonds during construction, as necessary to ensure compliance with this article and the permit. The amount of any such bonds shall not exceed the amount necessary to assure that the construction work will be performed in compliance with all applicable city codes.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

115.1. Unauthorized use. It shall be unlawful for any person to place any network nodes, network support poles, or transport facilities on, in or over the public rights-of-way, city property, city structures or utility infrastructure unless expressly allowed under this article or the terms of a permit.

115.2. Deemed an offense. Each unauthorized use shall be deemed to be a distinct and separate offense. Each day a violation of this article continues shall constitute a distinct and separate offense.

115.3. Penalty for each offense. The violation of any provision of this Article shall be unlawful and a misdemeanor offense.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)

116.1. Law and venue. To the extent not in conflict with the federal laws relating to telecommunications, the laws of the State of Texas shall apply to any permit granted under this article and venue for any dispute with respect to such permit shall be in Harris County, Texas.

(Ord. No. 17-072, § 1(Exh. A), 11-20-2017)