(A) Use of city-owned traffic poles.
(1) Petitions for the use of city-owned traffic poles for the attachment of appropriate wireless communication facilities shall be submitted to the Public Works Director. The petitioner shall enter into a pole attachment agreement with the city. The terms and rates of the pole attachment agreement shall be non-discriminatory.
(2) The Public Works Director shall establish forms, processes and procedures for carrying out this section. At the request of the director, the petitioner will provide engineering network designs and other relevant information in order to determine the most appropriate use of city-owned traffic poles.
(3) A pole attachment agreement will not grant the petitioner the right to use city rights-of-way. The petitioner must establish the legal right to use city rights-of-way outside the scope of this section.
(4) When traffic poles on which wireless devices are attached must be moved to accommodate a public works project, the petitioner will be required to relocate the wireless devices and any related facilities at its own expense. Upon termination of the pole attachment agreement for any reason, the petitioner shall remove or otherwise dispose of the wireless devices within 60 days. Failure to take this action will result in considering the wireless devices abandoned and they will become the property of the city.
(B) Fiber optic licenses.
(1) Petitions to install fiber optic cable, conduit, and related communications facilities on city right-of-way or other city property must be submitted to the Public Works Director. The Public Works Director may process requests and may establish forms and procedures to carry out this section. This section does not apply to a certificated telecommunications provider licensed by the Texas Public Utility Commission that is providing local exchange telephone service within the city and does not include public right-of-way that is a drainage easement unless the city also owns the underlying fee interest.
(2) Fiber optic licenses have maximum ten-year terms.
(3) The annual consideration amount for use of public right-of-way for the purpose of installing aerial and/or subterranean fiber optic and related communications facilities is based on the fair market value of the right-of-way used by the petitioner. The licensed area must be as wide as the petitioner will reasonably need to maintain the licensed facilities but not more than 20 feet. The Public Works Director in his or her discretion may utilize internal staff or engage an independent professional consultant to conduct an appraisal of the right-of-way subject to the license, based on the appraised values of adjoining properties as assessed by the Atascosa County Appraisal District. The petitioner will be responsible for paying the right-of-way appraisal separate from the processing fee. The Public Works Director will determine the fair market value on a per-linear-foot basis of the right-of-way area associated with the petitioner's network footprint. An annual escalation factor of 4% will be applied to the consideration amount for year one in order to derive the consideration amount for years two to ten of the license term. At the discretion of the Public Works Director, the city may negotiate a discount off the total licensing fee in exchange for in-kind contributions of equivalent value.
(4) The licensing fee will authorize the petitioner to install fiber facilities on city right-of-way, but does not grant authority to use poles or other infrastructure of the city or utility agencies. The Public Works Director may require a petitioner to sign and deliver an agreement setting out the applicable license fee and conditions imposed by city departments and utility agencies. When reasonably conducive to the efficient use of the property on which fiber facilities are located, the Public Works Director may require licensee to relocate the fiber optic facilities, including all related communications facilities, at licensee's expense.
(5) Following termination of the license for any reason, licensee must remove or otherwise dispose of all communications facilities at its own expense within 60 days. Failure to take this action will result in the fiber facilities being considered abandoned and the property of the city.
(C) Wireless communications towers on city property.
(1) Petitions for the right to erect a wireless communications tower on city property or collocate antennae facilities on a wireless communications tower must be submitted to the Public Works Director. The Public Works Director may process requests and may establish forms and procedures to carry out this section. Wireless communications leases and collocation licenses are for maximum ten-year terms.
(2) The city may lease space for the erection of wireless communications towers. When erected, wireless communication towers remain personal property and belong to the provider during the existence of the lease. The lease may specify the required height of the wireless communications tower and the required number of antennae array locations. If following termination of a tower lease for any reason, the provider fails to remove the wireless communications tower within 60 days or otherwise dispose of the tower, the tower shall be considered abandoned and shall become the property of the city.
(3) The provider shall reserve space for the installation of one antennae array and related communications facilities on the wireless communications tower for the city's use at no cost to the city for the entire life of the lease. Petitioner's employees and contractors must wear a suitable photo ID badge while on the premises, to be provided by the provider, which includes a nominal one and one-half inch square personal photo, unique logo and labeling that identifies the provider and the employee or contractor by name and a telephone number where confirmation of employment may be readily confirmed.
(4) Despite the wireless communications tower being the provider's personal property during the term of a lease, the city reserves the right to charge processing fees and the consideration amount to collocators desiring to install antennae facilities on the city tower. If a wireless communications tower was built before adoption of this section, the provider must obtain a tower lease from the city, and any collocator must obtain a collocation license for its antennae facilities.
(5) The petitioner must annually provide the city a list of all wireless communications towers deployed by petitioner on city property, including addresses, location, and GIS coordinates in a form approved by the Public Works Director.
(6) The City Attorney must approve the form of each tower lease and collocation license that does not conform to this section, both of which must be approved by the City Council. The Public Works Director cannot bind the city to tower leases or collocation licenses without specific City Council action.
(7) Validation of proper operation. Within 45 days of commencement of operations, the petitioner shall provide verification by qualified experts that the radio frequency levels comply with FCC regulations.
(8) The annual consideration amount for use of city property for the purpose of installing a wireless communications tower is based on the fair market value of the city property leased by the petitioner, including, but not limited to, uninhabitable enclosed structures, all communications facilities and related city property fenced in and enclosed therein. The Public Works Director will determine the fair market value on a cubic foot basis (width x length x height) of the city property area associated with the petitioner's lease. The Public Works Director in his or her discretion may engage an independent professional consultant to determine the lease rate. An annual escalation factor of 4% will be applied to the consideration amount for year one in order to derive the consideration amount for years two to ten of the lease term. The city reserves the right to revise its rate structure based on market conditions.
(D) Communications facilities installed on city property not addressed in divisions (A), (B) and (C).
(1) Communications facilities installed on city property pursuant to this section shall be by agreement negotiated by petitioner and the Public Works Director subject to the City Manager's approval.
(2) The annual consideration amount for use of city property is based on the fair market value of the city property used by the petitioner. The agreement may include an annual escalation factor of 4% may be applied to the consideration amount for year one in order to derive the consideration amount for future years covered by the agreement.
(E) Interference with public safety communications. Whenever the city has encountered radio frequency interference with its public safety communications equipment, and it believes that such interference has been or is being caused by the wireless communications infrastructure installed by one or more wireless communication providers, the following steps shall be taken:
(1) The city shall provide notification to all wireless communications service providers operating in the city of possible interference with the public safety communications equipment. Upon such notification, the owners shall use their best efforts to cooperate and coordinate with the city and among themselves to investigate and mitigate the interference, if any, utilizing the procedures set forth in the joint wireless industry public safety "Best Practices Guide," released by the FCC in February 2001, including the "Good Engineering Practices," as may be amended or revised by the FCC from time to time.
(2) If any wireless communications service provider fails to cooperate with the city in complying with the wireless communications service provider's obligations under this section or if the FCC makes a determination of radio frequency interference with the city public safety communications equipment the wireless communications service provider who fails to cooperate and/or the owner of the wireless communications facilities which caused the interference shall be responsible, upon FCC determination of radio frequency interference, for reimbursing the city for all costs associated with ascertaining and resolving the interference, including but not limited to any engineering studies obtained by the city to determine the source of the interference. For the purposes of this section, FAILURE TO COOPERATE shall include failure to initiate any response or action as described in the "Best Practices Guide" within 24 hours of the city's notification.
(Ord. 23-1314, passed 5-11-2023)