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(A) In the exercise of governmental functions, the city has first priority over all other uses of the public rights-of-way. The city reserves the right to lay sewer, gas, water and other pipe lines or cables and conduits, and to do underground and overhead work, and attachments, restructuring or changes in aerial facilities in, across, along, over or under a public street, alley or public rights-of-way occupied by a provider, and to change the curb, sidewalks or the grade of streets
(B) The city shall assign the location in or over the public rights-of-way among competing users of the public rights-of-way with due consideration to the public health and safety considerations of each user type, and to the extent there is limited space available for additional users, may limit new users, as allowed under state or federal law.
(C) If, during the term of a municipal consent, the city authorizes abutting landowners to occupy space under the surface of any public street, alley or public rights-of-way, the grant to an abutting landowner shall be subject to the rights of the provider. If the city closes or abandons a public right-of-way that contains a portion of a provider’s facilities, the city shall close or abandon such public right-of-way subject to the rights conveyed in the municipal consent.
(D) (1) If the city gives written notice, a provider shall, at its own expense, temporarily or permanently, remove, relocate, change or alter the position of provider’s facilities that are in the public rights-of-way within 120 days, except in circumstances that require additional time as reasonably determined by the city based upon information provided by the provider for projects expected to take longer than 120 days to remove, change or relocate, the city will confer with provider before determining the alterations to be required and the timing thereof. The city shall give notice whenever the city has determined that removal, relocation, change or alteration is reasonably necessary for the construction, operation, repair, maintenance or installation of a city or other governmental public improvement in the public rights-of-way. This section shall not be construed to prevent a provider’s recovery of the cost of relocation or removal from private third parties who initiate the request for relocation or removal, nor shall it be required if improvements are solely for beautification purposes without prior joint deliberation and agreement with provider.
(2) If the provider fails to relocate facilities in the time allowed by the city in this section, the provider may be subject to liability to the city for such delay and as set forth in the city codes or ordinance, now or hereafter enacted.
(3) Notwithstanding anything in this division (D), the Public Works Director or his or her designee and a provider may agree in writing to different time frames than those provided above if circumstances reasonably warrant such a change.
(E) During the term of its municipal consent, a provider may trim trees in or over the public rights-of-way for the safe and reliable operation, use and maintenance of its network. All tree trimming shall be performed in accordance with standards promulgated by the city. Should the provider, its contractor or agent, fail to remove such trimmings within 24 hours, the city may remove the trimmings or have them removed, and upon receipt of a bill from the city, the provider shall promptly reimburse the city for all costs incurred within 30 working days.
(F) Providers shall temporarily remove, raise or lower its aerial facilities to permit the moving of houses or other bulky structures, if the city gives written notice of no less than three business days. The expense of these temporary rearrangements shall be paid by the party or parties requesting and benefitting from the temporary rearrangements. The provider may require prepayment or prior posting of a bond from the party requesting temporary move.
(1998 Code, § 122-188) (Ord. 99-15, passed 4-7-1999)
(A) A provider shall obtain and maintain insurance in the amounts reasonably prescribed by the city with an insurance company licensed to do business in the state acceptable to the city throughout the term of a municipal consent conveyed under this chapter. A provider shall furnish the city with proof of insurance at the time of filing the acceptance of a municipal consent. The city reserves the right to review the insurance requirements during the effective period of a municipal consent, and to reasonably adjust insurance coverage and limits when the Public Works Director or his or her designee determines that changes in statutory law, court decisions or the claims history of the industry or the provider require adjustment of the coverage. For purposes of this section, the city will accept certificates of self-insurance issued by the state or letters written by the provider in those instances where the state does not issue such letters, which provide the same coverage as required herein. However, for the city to accept such letters the provider must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the city, based on financial information requested by and furnished to the city. The city’s current insurance requirements are described in Exhibit A, kept on file in the office of the City Clerk.
(B) The provider shall furnish, at no cost to the city, copies of certificates of insurance evidencing the coverage required by this section to the city.
(C) An insurance certificate shall contain the following required provisions:
(1) Name the city of and its officers, employees, board members and elected representatives as additional insureds for all applicable coverage;
(2) Provide for 30-days’ notice to the city for cancellation, non-renewal or material change;
(3) Provide that notice of claims shall be provided to the Public Works Director or his or her designee by certified mail; and
(4) Provide that the terms of the municipal consent which impose obligations on the provider concerning liability, duty and standard of care, including the indemnity section, are included in the policy and that the risks are insured within the policy terms and conditions.
(D) The provider shall file and maintain proof of insurance with the Public Works Director or his or her designee during the term of a municipal consent or an extension or renewal. An insurance certificate obtained in compliance with this section is subject to city approval. The city may require the certificate to be changed to reflect changing liability limits. A provider shall immediately advise the City Attorney of actual or potential litigation that may develop may affect an existing carrier’s obligation to defend and indemnify.
(E) An insurer has no right of recovery against the city. The required insurance policies shall protect the provider and the city. The insurance shall be primary coverage for losses covered by the policies.
(F) The policy clause “other insurance” shall not apply to the city if the city is an insured under the policy.
(G) The provider shall pay premiums and assessments. A company which issues an insurance policy has no recourse against the city for payment of a premium or assessment. Insurance policies obtained by a provider must provide that the issuing company waives all right of recovery, by way of subrogation, against the city in connection with damage covered by the policy.
(1998 Code, § 122-189) (Ord. 99-15, passed 4-7-1999)
(A) Each municipal consent granted under this chapter shall contain provisions whereby the provider agrees to promptly defend, indemnify and hold the city harmless from and against all damages, costs, losses or expenses:
(1) For the repair, replacement or restoration of city’s property, equipment, materials, structures and facilities which are damaged, destroyed or found to be defective solely as a result of the provider’s acts or omissions; and
(2) From and against any and all claims, demands, suits, causes of action and judgments for:
(a) Damage to or loss of the property of any person (including, but not limited to, the provider, its agents, officers, employees and subcontractors, city’s agents, officers and employees, and third parties); and/or
(b) Death, bodily injury, illness, disease, loss of services, or loss of income or wages to any person (including, but not limited to, the agents, officers and employees of the provider, provider’s subcontractors and city, and third parties), arising out of, incident to, concerning or resulting from the negligent or willful act(s) or omissions of the provider, its agents, employees and/or subcontractors, in the performance of activities pursuant to such municipal consent.
(B) No municipal consent indemnity provision shall apply to any liability resulting from the negligence of the city, its officers, employees, agents, contractors or subcontractors.
(C) The provisions of the required indemnity provision set forth in an individual municipal consent shall provide that:
(1) It is solely for the benefit of the parties to the municipal consent and is not intended to create or grant any rights, contractual or otherwise, to any other person or entity;
(2) To the extent permitted by law, any payments made to, or on behalf of the city under the provisions of this section are subject to the rights granted to providers under Tex. Utilities Code §§ 54.204 through 54.206; and
(3) Subject to the continued applicability of the provisions of Tex. Utilities Code §§ 54.204 through 54.206, as set forth in division (C)(2) above, the provisions of the indemnity shall survive the expiration of the municipal consent.
(D) The city shall advise the provider as soon as practicable, in writing, of actual or potential litigation that may give rise to any provider’s obligation to defend and indemnify under this section. Failure to comply with this notice requirement shall not be deemed a waiver by the city to require such indemnification.
(1998 Code, § 122-190) (Ord. 99-15, passed 4-7-1999)
Within 30 days following the date of the passage of any action affecting the annexation of any property to or the disannexation of any property from the city’s corporate boundaries, the city agrees to furnish provider written notice of the action and an accurate map of the city’s corporate boundaries showing street names and number details. For the purpose of compensating the city under this chapter, a provider shall start including or excluding access lines within the affected area in the provider’s count of access lines on the effective date designated by the State Comptroller of Public Accounts, for the imposition of state local sales and use taxes, but in no case less than 30 days from the date the provider is notified by the city of the annexation or disannexation.
(1998 Code, § 122-192) (Ord. 99-15, passed 4-7-1999)
The provisions of this chapter are severable. However, in the event this chapter or any tariff that authorizes the provider to recover the fee(s) provided for this chapter or any procedure provided in this chapter or any compensation due the city under this chapter becomes unlawful, or is declared or determined by a judicial, administrative or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, illegal or otherwise inapplicable, in whole or in part, or is exchanged for another means of compensation under higher authority, the provider and city shall meet and negotiate a new agreement that is in compliance with the authority’s decision or enactment. Unless explicitly prohibited, the new agreement shall provide the city with a level of compensation comparable to that set forth in this chapter as long as the agreed-to compensation is recoverable by the provider in a manner permitted by law for the unexpired portion of the term of this chapter.
(1998 Code, § 122-193) (Ord. 99-15, passed 4-7-1999)
This chapter shall be construed in accordance with the city code(s) in effect on the date of passage of this chapter to the extent that such code(s) are not in conflict with or in violation of the Constitution and laws of the United States or the state, subject to the city’s ongoing authority to adopt reasonable regulations to manage its public rights-of-way, pursuant to §§ 52.17 and 52.18 of this chapter or as otherwise provided by law. Municipal consents entered into pursuant to this chapter are performable in the county.
(1998 Code, § 122-194) (Ord. 99-15, passed 4-7-1999)
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