HomeMy WebLinkAboutORD 98-40 - Telecommunications FranchiseORDINANCE NO. ,r
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS, AMENDING TITLE 14 OF THE CODE OF
ORDINANCES OF THE CITY OF GEORGETOWN, TEXAS, RELATING
TO FRANCHISES, BY ADDING CHAPTER 14.14 TITLED "CITY OF
GEORGETOWN TELECOMMUNICATIONS PROVIDERS FRANCHISE
ORDINANCE" GRANTING A FRANCHISE TO WILLIAMSON COUNTY
CABLEVISION TO OPERATE OR UTILIZE TRANSMISSION MEDIA AND
FACILITIES ON THE PUBLIC WAYS OF THE CITY; PROVIDING FOR
PAYMENT OF A FRANCHISE FEE TO THE CITY FOR THE USE OF CITY
STREETS AND OTHER PUBLIC RIGHTS-OF-WAY AND
COMPENSATING THE CITY FOR THE COSTS ASSOCIATED WITH
ADMINISTERING AND REGULATING SUCH FACILITIES OR
TRANSMISSION MEDIA; PROVIDING FOR PENALTIES FOR
VIOLATION OF ORDINANCE OR ANY PORTION THEREOF;
REPEALING CONFLICTING ORDINANCES AND RESOLUTIONS;
INCLUDING A SEVERABILITY CLAUSE; AND ESTABLISHING AN
EFFECTIVE DATE.
WHEREAS, the City of Georgetown recognizes that it is necessary to establish terms
under which telecommunications providers may operate or utilize transmission media and
facilities on public rights-of-way; and
WHEREAS, the City further recognizes that telecommunications providers must pay a
franchise fee to the City for use of city streets and other public rights-of-way and compensate the
City for costs associated with administering and regulating such facilities or transmission media;
and
WHEREAS, the caption of this ordinance was printed in the Williamson County Sun on
June 3, 1998 in compliance with the City Charter of the City of Georgetown;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF GEORGETOWN, TEXAS, THAT:
SECTION 1. The facts and recitations contained in the preamble of this ordinance are
hereby found and declared to be true and correct, and are incorporated by reference herein and
expressly made a part hereof, as if copied verbatim. The City Council hereby finds that this
ordinance implements Utilities & Energy Policy 14.0 of the Century Plan - Policy Plan Element,
which states: "Georgetown's utility systems provide safe and reliable service which meets the
needs of all citizens and promotes the economic health of the community," and Utilities &
Telecommunications Provider C/o
Franchise Ordinance No. `f
Page I of 2
Energy Policy 14.6 of the Century Plan - Policy Plan Element, which states: "Franchised utilities
provide adequate services for all citizens" and further finds that the enactment of this ordinance
is not inconsistent or in conflict with any other Century Plan Policies, as required by Section 2.03
of the Administrative Chapter of the Policy Plan.
SECTION 2. The Ordinance attached as Exhibit "A", relating to Telecommunications
Provider Franchises, is hereby adopted by the City Council of the City of Georgetown, Texas,
and incorporated herein for all purposes.
SECTION 3. All ordinances and resolutions, or parts of ordinances and resolutions, in
conflict with this Ordinance are hereby repealed, and are no longer of any force and effect.
SECTION 4. If any provision of this ordinance or application thereof to any person or
circumstance, shall be held invalid, such invalidity shall not affect the other provisions, or
application thereof, of this ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are hereby declared to be severable.
SECTION 5. The Mayor is hereby authorized to sign this ordinance and the City
Secretary to attest. This ordinance shall become effective and be in full force and effect thirty
(30) days after its final passage in accordance with the provisions of the Charter of the City of
Georgetown.
PASSED AND APPROVED on First Reading on the 9th day of June, 1998,
PASSED AND APPROVED on Second Reading on the 14th day of July, 1998,
ATTEST:
Sandra Lee
City Secretary
AS TO FORM:
Marianne Landers Banks
City Attorney
Telecommunications Provider
Franchise Ordinance No.
Page 2 of 2
THE CITY OF GEORGETOWN:
By: LEO WOOD
Mayor
EXHIBIT A
SECTION 1, TITLE AND PURPOSES OF THIS ORDINANCE ...................... 1 1
SECTION 2. DEFINITIONS....................................................1
SECTION3. TERM..........................................................2
SECTION 4. ACCEPTANCE BY TELECOMMUNICATIONS PROVIDER ............. 2
SECTION 5, NATURE OF LIMITATION OF RIGHTS GRANTED . 1 .................. 2
SECTION 6. NOTICES, ....................................................... 2
SECTION 7, SUPERVISION BY CITY OF LOCATION OF POLES AND
CONDUITS......................................................3
SECTION & STREETS TO BE RESTORED TO GOOD CONDITION ................. 3
SECTION 9. TEMPORARY REMOVAL, OF AERIAL WIRES ........................ 3
SECTION 10. TREE TRIMMING ................................................ 4
SECTION 11, RESERVATION OF RIGHTS WITH REGARD TO CONSTRUCTION,
EXCAVATION, REPAIR AND REMOVAL ............................ 4
SECTION 12, LIABILITY INSURANCE .......................................... 5
SECTION 13. INDEMNITY..................................................... 6
% � {
1
SECTION 14, FRANCHISE TO OPERATE REQUIRED 11 . . . . . . . 11 . . . . . . . . . . . . 11 . . . 11 6
SECTION 15. FRANCHISE FEE ................................................. 6
SECTION 16, PRO RATA FLOW THROUGH ..161.1 . 11 . . . . . . . . . . . . . . . . . . . 11 11 . . . 11 7
SECTION 17 AUDIT..........................................................8
SECTION 18. NOTA TAX ..................................................... 8
SECTION 19, CHANGE OF CONTROL, ASSIGNMENT AND SUBLEASE ...... 1 11 1 ... 8
SECTION 20. MOST FAVORED CITY ........................................... 9
SECTION 21. FRANCHISE VIOLATIONS ........................................ 9
SECTION 22, SEVERABILITY OF ORDINANCE .................................. 9
SECTION 23. ACCEPTANCE OF AGREEMENT .................................. 10
SECTION 24. EFFECTIVE DATE ............................................... 10
2
Li This Ordinance shall be known as the City of Georgetown Telecommunications
Providers Franchise Ordinance,
1.2 The purposes of this Ordinance are to establish terms under which
Telecommunications Providers may operate or utilize transmission media and facilities on the Public
Ways of the City, to provide for the payment of a franchise fee to the City for the use of City streets
and other public rights-of-way, and to compensate the City for the costs associated with
administering and regulating such facilities or transmission media; providing for a fine up to $500.00
for each violation of the ordinance or any portion thereof; providing for an effective date; and
providing for the publication of a caption of this ordinance.
SECTION 2. DEFINITIONS
2.1 "City" shall mean the City of Georgetown, Texas.
2.2 "Public Ways" shall mean the surface, the air space above the surface, and the area
below the surface within any dedicated public right-of-way and any public street, highway, lane,
path, alley, sidewalk, boulevard, drive, park, parkway or other public right-of-way including the
public utility easements or rights-of-way of the City.
2.3 " Telecommunications Provider" shall mean Williamson County Cablevision, an
enterprise engaged in the business of providing telecommunications services.
2.4 "Telecommunications Facilities" or "Facilities" means all duct spaces, manholes,
poles, conduits, underground and overhead passageways, and other equipment, structures and
appurtenances and transmission media.
2.5 "Transmission Media" means all cables, fibers, wires, or other physical devices
used to transmit and/or receive communication signals, whether analog, digital or other
characteristics, and whether for voice, data, video, or other purposes.
2.6 "Telecommunications Services" means the conveyance, routing or reception of
sounds, signals, data or video utilizing wire, cable, fiber optics, or any other method now in
existence. This term shall include telephone, cable or video services. This term shall not include
an enterprise whose primary business is to provide access to the Internet or whose primary business
is to prepare information or content for use on the Internet or other information services.
SECTION 3. TERM
This Ordinance shall continue for a term of ten (10) years from the effective date; provided
0 1
Ex hA 2�*
that at the end of the expiration of the initial period, such term may be extended year to year by
written notice given by the Telecommunications Provider and the City within ninety (90) days of
the end of the term.
The execution of this franchise by the Telecommunications Provider shall evidence its
agreement to be bound by, comply with and abide by all the teens and conditions contained in
this chapter.
SECTION 5. NATURE OF LIMITATION OF RIGHTS GRANTED
5.1 The Telecommunications Provider is granted a nonexclusive privilege to use the
Public Ways of the City subordinate to the City's use of such Public Ways,
5.2 The City shall not grant any unreasonable preference to any other provider of
telecommunications services which is in competition with the Telecommunications Provider,
SECTION 6. NOTICES.
6.1 All notices from the Telecommunications Provider to the City pursuant to this
franchise shall be sent to the City Manager, City of Georgetown, Box 409, Georgetown, Texas
78627-0409. All notices to the Telecommunications Provider pursuant to this franchise shall be
sent to Williamson County Cablevision Co., attention: General Manager, Box 839, Georgetown,
Texas 78627-0839. All notices and requests required under the provisions of this chapter shall be
in writing and are deemed to have been duly delivered and received upon receipt by the intended
recipient, if hand delivered, or two days after deposit in a regularly maintained depository for U.S.
mail, postage prepaid, certified mail, return receipt requested, properly addressed tot the intended
recipient. The addresses for the parties hereto may be changed from time to time by delivery of
written notice in accordance with this section.
6.2 During the term of this franchise, the Telecommunications Provider maintain an
office at its current address, or at such other place as convenient to the City of Georgetown, and shall
maintain a toll-free telephone number during normal business hours for the conduct of matters
related to this franchise.
eqgp. `ff. 0 2
!' � i : �Li7Y`11�Z�7�i/C/Zi7:T111[i��il�l'Zl7��f.�►`IIZKI�►`i=1i1(IKy
All poles to be placed shall be of sound material and reasonably straight, and shall be set so
that they will not interfere with the flow of water to any gutter or drain, and so that the same will
interfere as little as practicable with the ordinary travel on the street or sidewalk. The location and
route of all poles, stubs, guys, anchors, conduits and cables to be placed and constructed by the
Telecommunications Provider in the construction and maintenance of its conduits to be laid by the
Telecommunications Provider within the limits of the City under this Ordinance, shall be subject to
the reasonable and proper regulation, control and direction of the City Council or of any city official
to whom such duties have been or may be delegated. Prior approval shall be obtained from the City
Council or designated city official but approval shall not be unreasonably withheld.
Nothing in this Ordinance is intended to add or detract from any authority granted by the
Legislature of the State of Texas to the City.
_1 o),
The surface of any street, avenue, alley, highway, viaduct or public ground within the City
disturbed by the Telecommunications Provider in building, constructing, repairing, or maintaining
its Facilities and Transmission Media shall be restored within a reasonable time after completion of
the work to as good a condition as before the commencement of the work and maintained to the
satisfaction of the City Council, or of any City official to whom such duties have been or may be
delegated, for one year from the date the surface of said street, avenue, alley, highway, viaduct or
public ground is broken for such construction or maintenance work, after which time responsibility
for the maintenance shall revert to the City. No such street, avenue, alley, highway, viaduct or
public ground shall be encumbered for a longer period than shall be necessary to execute the work.
The Telecommunications Provider on the request of any person shall remove or raise or
lower its wires within the City temporarily to permit the moving of houses or other bulky structures.
The expense of such temporary removal, raising or lowering of wires shall be paid by the benefited
party or parties, and the Telecommunications Provider shall be given not less than forty-eight (48)
hours advance notice to arrange for such temporary wire changes. The clearance of wires above
ground or rails shall conform to the basic standards of the National Electrical Safety Code, National
Bureau of Standards, United States Department of Commerce, as promulgated at the time of erection
thereof.
0
oe a1 � •
In pursuit of maintaining its telecommunications system, the Telecommunications Provider,
its contractors, agents, successors and assigns shall have the right to trim trees upon and overhanging
the streets, avenues, alleys, bridges, viaducts and public grounds of the City, so as to prevent the
branches of such trees from coming in contact with the wires, cables or other facilities of the
Telecommunications Provider, and when so ordered by the City, said trimming shall be done under
the supervision and direction of the City Council or of any City official to whom said duties have
been or may be delegated. The Telecommunications Provider shall promptly dispose of the tree
limbs and any waste related to tree trimming. The indemnity provisions of Section 11 specifically
apply to this provision.
SECTION ll. RESERVATION OF RIGHTS WITH REGARD TO CONSTRUCTION,
EXCAVATION, REPAIR AND REMOVAL
11.1 The City shall have the power at any time to order and require the
Telecommunications Provider to remove any of its facilities that are dangerous to life and property.
In case the Telecommunications Provider, after reasonable notice by the City to the chief executive
officer of the Telecommunications Provider, fails or refuses to act, then the City, at the direction of
the City Council or its designee, shall have the power to remove or abate the same at the expense of
the Telecommunications Provider, all without compensation or liability for damages to the
Telecommunications Provider.
11.2 The City Council or its designee shall be notified as soon as practicable regarding
work performed by the Telecommunications Provider under emergency conditions, and the
Telecommunications Provider shall comply with any reasonable requirements of the City Council
or its designee for the restoration of the rights-of-way within the City.
11.3 The City reserves the right to lay, and permit to be laid, sewer, gas, water, electric,
and other pipe lines or cables and conduits, including telecommunications and cable television lines,
and to do and permit to be done under ground and overhead work that may be deemed necessary and
proper by the City, in, across, along, over or under any right-of-way or public place occupied by the
Telecommunications Provider, and to change any curb or sidewalk or the grade of any street. In
performing or permitting such work to be done, the City shall not be liable to the
Telecommunications Provider for any damages related to such work, nor shall the City be liable to
the Telecommunications Provider for any damages not proximately caused by the City's sole
negligence, provided however, nothing herein shall relieve any other person or entity from liability
for damage to facilities of the Telecommunications Provider.
11.4 The City expressly reserves the right to require the Telecommunications Provider,
at its sole expense, to relocate or to place underground any Telecommunications Provider facilities
EX12ib 7L A
if it is determined necessary by the City for traffic safety, for the accommodation of the City utilities,
or due to changes in the grade, width, direction, or location of City right-of-way. In the event
electric distribution service to a subdivision or portion of the City is placed underground, then
telephone service (wires and other transmission media) shall also be located underground.
SECTION 12. LIABILITY INSURANCE
12.1 The Telecommunications Provider shall maintain throughout the term of the franchise,
extended coverage and general liability insurance with an insurance company licensed to do business
in the State of Texas, insuring against claims for liability or damages. Extended coverage insurance
under this section shall be at a minimum of $1,000,000.00 for the protection of the public in
connection with liability for death and injury to persons(s) or damage to property, in any way arising
out of or through the acts or omissions of the Telecommunications Provider, its servants, agents or
employees or to which the Telecommunications Provider's negligence shall in any way contribute.
The City shall be named as an "additional insured" on all such policy(ies).
12.2 The insurance policy(ies) obtained by the Telecommunications Provider in compliance
with this section shall be reasonably acceptable to the City Attorney, and a certificate of insurance,
or if the City so requests, a copy of such insurance policy(ies), endorsed as provided in subsection
c of this section, along with written evidence of payment of required premiums, shall be filed on or
before the effective date of the ordinance codified in this chapter and thereafter shall be filed on or
before each anniversary date of the effective date of such ordinance with the City Secretary during
the term of the franchise. The Telecommunications Provider shall immediately advise the City
Attorney of any litigation that would affect this insurance.
12.3 All insurance policies maintained pursuant to this franchise shall contain the following
conditions by endorsement:
Each policy shall require that 30 days prior to the cancellation or material change
in policies a notice thereof shall be given to the City Manager or City Attorney by
certified mail.
The company(ies) providing such policy(ies) shall have no right of subrogation or
other recovery against the City, it being the intention of the City and the
Telecommunications Provider that the insurance policy(ies) obtained pursuant
hereto shall fully protect the Telecommunications Provider and the City and shall
be primary coverage for all losses covered by such policy(ies).
5
The policy clause "Other Insurance" shall not apply to the City where the City is
an additional insured on any policy.
The company(ies) issuing the insurance policies shall not have recourse against
the City for payment of any premiums or assessments which shall be the sole
obligation and the risk of the Telecommunications Provider.
SECTION 13. INDEMNITY
The Telecommunications Provider agrees to defend, indemnify and hold the City harmless
from and against all damages, costs, losses or expenses (i) for the repair, replacement, or restoration
of City's property, equipment, materials, structures and facilities which are damaged, destroyed or
found to be defective as a result of such Telecommunications Provider's acts or omissions, (ii) from
and against any and all claims, demands, suits, causes of action, and judgments for: (a) damage to
or loss of the property of any person (including, but not limited to such Telecommunications
Provider, its agents, officers, employees and subcontractors, City's agents, officers and employees,
and third parties); and/or (b) death, bodily injury, illness, disease, worker's compensation, loss of
services, or loss of income or wages to any Person (including but not limited to the agents, officers
and employees of such Telecommunications Provider, Telecommunications Provider's
subcontractors and City, and third parties), arising out of, incident to, concerning or resulting from
the act or omissions of such Provider, its agents, employees, and/or subcontractors, in the
performance of activities pursuant to the grant of authority under this franchise, no matter how, or
to whom, such loss may occur.
It shall be unlawful for the Telecommunications Provider to provide telecommunications
services utilizing the Facilities or Transmission Media in the Public Ways without a valid franchise
first being obtained from the City pursuant to the terms of this Ordinance. Unless otherwise
specified, the Franchise Area shall be the legal boundaries of the City.
SECTION 15. FRANCHISE FEE
15.1 As compensation for the use, occupancy, oversight, supervision and regulation of
the City's Public Ways, the Telecommunications Provider agrees to pay the city the sum of 4% of
the annual gross receipts for all telecommunications services which utilized the Facilities or
Transmission Media located within the municipal boundaries of the City. The calculation of the fee
shall also include revenues derived form the sale or resale of access to said Facilities or Transmission
Media as well as the receipt of state and local taxes.
15.2 The Franchise Fee for the preceding year shall be due on or before March 31 st of
c% i) ♦ - elb 6
x,ho e 7�
the succeeding year. The Franchise Fee shall be in addition to any rental for each light, power or
telephone pole owned by the City.
15.3 The Telecommunications Provider shall pay the City the sum of $3.10 per year
for rental for each light, power or telephone pole owned by the City, which is utilized by
Telecommunications Provider in connection with the delivery of telecommunications services. This
fee is not to be duplicative of any pole rental fee paid by the Telecommunications Provider raider
other franchises with the City. The City agrees to accept such payments as a fair and equitable rent
for the use of such pole and to allow the Telecommunications Provider to use any of the poles so
long as such use does not constitute a hazard of any nature and does not interfere with the said use
of such poles. The annual rental for such poles shall be owing and due to the City at the same time
as the Franchise Fee is owing and due to the City.
15.4 The Franchise Fee and other payments provided for in this section shall be
delivered by the Telecommunications Provider to the City's Director of Finance.
15.5 The Telecommunications Provider shall provide on a monthly basis to the Director
of Finance detailed workpapers showing the calculation of the Franchise Fee for each thirty day
period. The detailed workpapers shall be delivered to the Director of Finance no later than sixty
days after the end of each month.
MQ''kTf]jtfAj &lolll
16.1 Municipal franchise fees shall be flowed through to all customers of the
Telecommunications Provider who are receiving the benefit of the Facilities or Transmission Media
located within the City's Public Ways.
16.2 The term "customers" includes, but is not limited to, interexchange carriers as well
as the resellers of telecommunications services utilizing the Facilities of the Telecommunications
Provider located within the rights-of-way of the City.
16.3 The Telecommunications Provider shall make available to the Director of Finance
within sixty (60) days of the end of the year under this agreement a detailed statement of franchise
fees collected during the prior year, including but not limited to the amounts of any over or
undercollections and the amounts paid by each class of customer (residential, business and
interexchange carrier and other resellers of telecommunications services)
16.4 The Telecommunications Provider shall flow through the Franchise fee to its
customers on an equitable basis in relation to the size of the revenue received from each customer.
OX0* - 7
SECTION 17 AUDIT
17.1 The City shall have the right to audit the books and records of the
Telecommunication Provider. The City may request such information as it deems necessary to
determine whether the total Franchise Fee has been appropriately remitted to the City. The
Telecommunications Provider shall deliver the requested information to the Finance director for the
City within thirty days of receipt of the requests for information.
17.2 The City shall serve the Telecommunications Provider with any findings or
conclusions reached by an audit of Franchise Fee payments within thirty days after the Council has
been supplied with such findings or conclusions.
17.3 The Telecommunications Provider shall pay the additional amount determined to
be due by the City within thirty days after the Telecommunications Provider has been notified in
writing of the underpayment.
SECTION 18. NOT A TAX
Payment by the Telecommunications Provider to the City, as set forth in Section 13 of this
Ordinance, is compensation for use of Public Ways and shall not be considered in the nature of a tax.
Such payments shall be separate from, and in addition to, any and all federal, state, local and
municipal taxes, as may be due, which are separate and distinct obligations of the
Telecommunications Provider.
SECTION 19. CHANGE OF CONTROL, ASSIGNMENT AND SUBLEASE
19.1 The rights or privileges granted by this Ordinance are exclusively those of the
Telecommunications Provider. There shall be no assignment or sale of the rights and privileges,
granted by this Ordinance without the consent of the City Council,
19.2 The Telecommunications Provider shall notify the City Secretary in writing of any
intent to sell or transfer the ownership of any Telecommunications Provider property located within
the City at least six (6) months prior to any sale or transfer being consummated.
SECTION 20. MOST FAVORED CITY
20.1 This Ordinance may be amended at any time by the mutual agreement of the City
and the Telecommunications Provider. It is understood and agreed that if an ordinance governing
similar matters with another city in this state contains a provision which the City feels would be
more advantageous to it than the terms hereof, the City may require that the portion of the Ordinance
be reopened for renegotiation and the Telecommunications Provider agrees to amend this Ordinance
so as to provide similar provisions for the City. The intent of this provision is that the City will be
4!!Fshi7�L
entitled only to treatment comparable to that which was afforded under the ordinance with the other
city, giving due consideration to the context of the provision on which renegotiation is sought and
the effect of the proposed amendment on the meaning of the ordinance as a whole.
20.2 The Telecommunications Provider shall make any and all street rental or franchise
ordinances of any municipality available within thirty (30) days of demand by the City.
SECTION 21. FRANCHISE VIOLATIONS
21.1 If the City finds sufficient cause to believe that a violation of a provision of this
Ordinance has occurred, the Telecommunications Provider shall be issued a citation to appear in
Municipal Court or in a court of competent jurisdiction.
21.2 The penalties for violation of this Ordinance shall be not less than two hundred
dollars ($200.00) nor more than five hundred dollars ($500.00). Each such violation and each day
such violation continues shall constitute a separate and distinct violation.
21.3 The Telecommunications Provider which owns or generates transmission media
or facilities located within the Public Ways of the City without a valid franchise ordinance or in
violation of this Ordinance is subject to a suit for injunction as well as prosecution for any criminal
violations.
21A Nothing in this section shall be construed to limit or restrict the
Telecommunications Provider's right to appeal the City's actions to any appropriate court or
administrative forum.
SECTION 22. SEVERABILITY OF ORDINANCE
If any section of this Ordinance, the Franchise, or any portions thereof, are held invalid or
unconstitutional in any court of competent jurisdiction or administrative agency, such decision shall
not affect the remaining portions of the Ordinance or Franchise.
SECTION 23. ACCEPTANCE OF AGREEMENT
The Telecommunications Provider shall have thirty (30) days from and after the passage
and approval of this Ordinance to file its written acceptance thereof with the City Secretary, and
upon such acceptance being filed, this Ordinance shall take effect and be in force from and after
the date of its acceptance, and shall effectuate and make binding the agreement provided by the
terms hereof.
e - elo 9
EKh ;71�
SECTION 24, EFFECTIVE DATE
Any failure by the City to follow proper procedures under state or local law in adopting this
Ordinance or granting a franchise shall not abrogate the rights or obligations of either the
Telecommunications Provider or the City under this Ordinance. If, following adoption of this
Ordinance, it is subsequently determined that proper legal procedures have not been followed by the
City, it shall be the responsibility of the City to rectify any procedural defects and ratify the terms
of the Ordinance. This Ordinance shall become effective after its publication pursuant to Section
52.011 of the Texas Local Government Code and such publication shall be in the form of the caption
hereof, which states in summary the purpose of this Ordinance and the penalty for violation hereof.
Qr I)o `74? V0 10
Ex ib;f