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(A) Network node site fee. Network providers shall pay the city annually $250 per network node site in accordance with Tex. Local Gov’t Code Ch. 284, § 284.053(a) the network node public right-of-way rate for each location for which network providers have obtained permit(s) regardless of whether or not a network provider installs network nodes in the public right-of-way.
(B) Adoption of the design manual for the installation of network nodes and node support poles. The city’s Design Manual for the Installation of Network Nodes and Node Support Poles pursuant to Tex. Local Gov’t Code, Ch. 284, is adopted to ensure that the city meets its fiduciary duty to the citizens of the city, and to give assistance and guidance to wireless telecommunications providers to assist such companies in the timely, efficient, safe and aesthetically pleasing installation of technologically competitive equipment.
(Ord. 19-12, passed 6-5-2019)
(A) Access line fee. A provider shall remit the access line fee on a quarterly basis together with the certified statement required in § 52.11(A)(1)(a) of this chapter. Payment shall be made on or before the forty-fifth day following the close of each calendar quarter for which the payment is calculated and may be paid by wire transfer to an account designated by the Public Works Director or his or her designee. The city may impose reasonable late fees of up to $100 per day for each day late, and not more than 10% per annum, pro rated on the amount past due.
(B) Minimum fee payment. This fee per § 52.11(B) of this chapter, if applicable, shall be due on January 31 of every year of the consent agreement.
(1998 Code, § 122-182) (Ord. 99-15, passed 4-7-1999)
(A) On 45-days’ notice to a provider, the city may audit a provider for a period of time to the fullest extent allowed by law to ascertain compliance with the municipal consent and/or other provisions of this chapter.
(B) A provider shall keep complete and accurate books of accounts and records of business and operations that cumulatively reflect the monthly count of all access lines for a period of four years. The Public Works Director or his or her designee may require the keeping of additional records or accounts, but only that are reasonably necessary for purposes of identifying, accounting for and reporting the number of access lines used to deliver telecommunication services or for calculation of the payments due hereunder, and only in the event the usual and customary records of the provider do not reasonably provide this information. The city may examine the provider’s books and records referred to above, expressly excluding any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 to 2522, but only to the extent such records reasonably relate to providing information to verify compliance with this chapter and the municipal consent.
(C) A provider shall make available to the city or the city’s designated agent (hereinafter “agent”), for the city or its agent to examine, audit, review and copy, in the city, on the Public Works Director or his or her designee’s written request, its books and records as referred to above that pertain to municipal consent conditions and requirements obtained under this chapter. A provider shall fully cooperate in making records available and otherwise assist the city examiner. The city examiner shall not inspect or copy or otherwise demand production of customer specific information or any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 to 2522.
(D) The Public Works Director or his or her designee may, at any time, make inquiries pertaining to providers’ performance of the terms and conditions of a municipal consent conveyed under this chapter. Providers shall respond to such inquiries on a timely basis.
(E) Upon written request by the Public Works Director or his or her designee, to the extent the documents are reasonably identified, providers shall furnish to the city within 30 business days from the date of the written request copies of all public petitions, applications, written communications and reports submitted by providers, to the FCC and/or to the PUC or their successor agencies, relating to any matters affecting the physical use of city public rights-of-way.
(F) The provisions of this section shall be continuing and shall survive the termination of a municipal consent granted under this chapter and shall extend beyond the term of the municipal consent granted to the provider and the city shall have all the rights described in this section for so long as provider is providing any telecommunications service within the city.
(1998 Code, § 122-183) (Ord. 99-15, passed 4-7-1999)
(A) No municipal consent nor any rights or privileges that a provider has under a municipal consent, or the facilities held by a provider for use under such municipal consent which are in the public rights-of-way, shall be sold, resold, assigned, transferred or conveyed by the provider, either separately or collectively, to any other person, without the prior written approval of the city by ordinance or resolution. The city’s approval shall be based upon the transferee providing adequate information to the city that it has the ability to perform and comply with the obligations and requirements of the municipal consent. Such approval shall not be unreasonably withheld should a provider sell, assign, transfer, convey or otherwise dispose of any of its rights or interests under its municipal consent, including such provider’s telecommunications network, or attempt to do so, without the city’s prior consent, the city may revoke the provider’s municipal consent for default, in which event all rights and interest of the provider under the municipal consent shall cease.
(B) Any transfer of the municipal consent in violation of this section shall be null and void and unenforceable. Any change of control of a provider shall constitute a transfer under this section. However, such a change in control shall not void the municipal consent as to the transferee, unless and until the city has given notice that such a change in control necessitates compliance with this section. If the provider does not initiate compliance with this section by a request for municipal consent within 30 days after the above notice has been given by the city, the municipal consent shall be null and unenforceable as to the transferee.
(C) There shall be a rebuttable presumption of a change of control of a provider upon a change of 25% or greater in the ownership of such provider. Such a change in control shall be deemed a transfer which requires consent of the city.
(D) 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.
(E) Every municipal consent granted under this section shall specify that any transfer or other disposition of rights which has the effect of circumventing payment of required access line fees or minimum fees and/or evasion of payment of such fees by failure to accurately count or report the number of access lines by a provider is prohibited.
(F) Notwithstanding anything else in this section, if the city has not approved or denied a request to transfer under this section at the next Commission meeting after the sixtieth day of written notice of such request from the provider to the city, it shall be deemed approved. Such time frame may be extended by mutual agreement of the parties.
(G) Notwithstanding any other provision in this section, a provider may transfer, without city approval, the facilities in the public rights-of-way under a municipal consent to another provider who has a municipal consent under this chapter. The provider transferring the facilities remains subject to all applicable obligations and provisions of the municipal consent unless the provider to which the facilities are transferred is also subject to the same, as applicable, obligations and provisions. The provider transferring the facilities must give written notice of the transfer to the Public Works Director or his or her designee.
(1998 Code, § 122-184) (Ord. 99-15, passed 4-7-1999)
(A) The parties shall notify each other, as is provided in the consent agreement.
(C) Prior to City Commission action on amendments to the telecommunications ordinance, the city will provide 30-days’ written prior notice to each provider with a municipal consent, with a general description of such amendments, except as to amendments which addresses safety or emergency circumstances, as reasonably determined by the city.
(1998 Code, § 122-185) (Ord. 99-15, passed 4-7-1999)
A person may not circumvent payment of access line fees or evade payment of such fees by bartering, transfer of rights or by any other means that result in undercounting a provider’s number of lines. Capacity or services may be bartered if the imputed lines are reported in accordance with § 52.11 of this chapter.
(1998 Code, § 122-186) (Ord. 99-15, passed 4-7-1999)
(A) A provider is subject to the reasonable regulation of the city to manage its public rights-of-way pursuant to the city’s rights as a custodian of public property under state and federal laws. A provider is subject to city ordinances and requirements and federal and state laws and regulations in connection with the construction, expansion, reconstruction, maintenance or repair of facilities in the public rights-of-way.
(B) At the city’s request, a provider shall furnish the city accurate and complete information relating to the construction, reconstruction, removal, maintenance, operation and repair of facilities performed by the provider in the public rights-of-way.
(C) The construction, expansion, reconstruction, excavation, use, maintenance and operation of a provider’s facilities within the public rights-of-way are subject to applicable city requirements.
(1) A provider may be required to place certain facilities within the public rights-of-way underground according to applicable city requirements absent a compelling demonstration by the provider that, in any specific instance, this requirement is not reasonable or feasible nor is it equally applicable to other similar users of the public rights-of-way.
(2) A provider shall perform operations, excavations and other construction in the public rights-of-way in accordance with all applicable city requirements, including the obligation to use trenchless technology whenever commercially economical and practical and consistent with obligations on other similar users of the public right-of-way. The city shall waive the requirement of trenchless technology if it determines that the field conditions warrant the waiver, based upon information provided to the city by the provider. All excavations and other construction in the public rights-of-way shall be conducted so as to minimize interference with the use of public and private property. A provider shall follow all reasonable construction directions given by the city in order to minimize any such interference.
(3) A provider must obtain a permit prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the provider’s facilities, as reasonably required by applicable city codes. Once a permit is issued, the provider shall give to the city a minimum of 48 hours’ notice (which could be at the time of the issuance of the permit) prior to undertaking any of the above listed activities on its network in, on or under the public rights-of-way. The failure of the provider to request and obtain a permit from the city prior to performing any of the above listed activities in, on or over any public right-of-way, except in an emergency as provided for in division (C)(10) below, will subject the provider to a stop-work order from the city and enforcement action pursuant to this code. If the provider fails to act upon any permit within 90 calendar days of issuance, the permit shall become invalid and the provider will be required to obtain another permit.
(4) When a provider completes construction, expansion, reconstruction, removal, excavation or other work, the provider shall promptly restore the public rights-of-way in accordance with applicable city requirements. A provider shall replace and properly relay and repair the surface, base, irrigation system and landscape treatment of any public rights-of-way that may be excavated or damaged by reason of the erection, construction, maintenance or repair of the provider’s facilities within 30 calendar days after completion of the work in accordance with existing standards of the city in effect at the time of the work.
(5) Upon failure of a provider to perform any such repair or replacement work, and five days after written notice has been given by the city to the provider, the city may repair such portion of the public rights-of-way as may have been disturbed by the provider, its contractors or agents. Upon receipt of a invoice from the city, the provider will reimburse the city for the costs so incurred within 30 calendar days from the date of the city invoice.
(6) Should the city reasonably determine, within two years from the date of the completion of the repair work, that the surface, base, irrigation system or landscape treatment requires additional restoration work to meet the standards of the city which existed at completion of the restoration work, a provider shall perform such additional restoration work to the satisfaction of the city, subject to all city remedies as provided herein.
(7) Notwithstanding the foregoing, if the city determines that the failure of a provider to properly repair or restore the public rights-of-way constitutes a safety hazard to the public and there is not adequate time to notify the provider due to the nature of the safety hazard, as reasonably determined by the city, the city may undertake emergency repairs and restoration efforts. A provider shall promptly reimburse the city for all costs incurred by the city within 30 calendar days from the date of the city invoice.
(8) A provider shall furnish the city with construction plans and maps showing the location and proposed routing of new construction or reconstruction at least 15 days (subject to divisions (C)(1) and (D) below), before beginning construction or reconstruction that involves an alteration to the surface or subsurface of the public rights-of-way. A provider may not begin construction until the location of new facilities and proposed routing of the new construction or reconstruction and all required plans and drawings have been approved in writing by the city, which approval will not be unreasonably withheld, taking due consideration of the surrounding area and alternative locations for the facilities and routing.
(9) If the Public Works Director or his or her designee declares an emergency with regard to the health and safety of the citizens and requests by written notice the removal or abatement of facilities, a provider shall remove or abate the provider’s facilities by the deadline provided in the Public Works Director or his or her designee’s request. The provider and the city shall cooperate to the extent possible to assure continuity of service. If the provider, after notice, fails or refuses to act, the city may remove or abate the facility, at the sole cost and expense of the provider, without paying compensation to the provider and without the city incurring liability for damages.
(10) Except in the case of customer service interruptions and imminent harm to property or person (“emergency conditions”), a provider may not excavate the pavement of a street or public rights-of-way without first complying with city requirements. The Public Works Director or his or her designee or designee shall be notified immediately regarding work performed under such emergency conditions, and the provider shall comply with the requirements of city standards for the restoration of the public rights-of-way.
(11) Within 60 days of completion of each new permitted section of a provider’s facilities, the provider shall supply the city with a complete set of “as built” drawings for the segment in a format used in the ordinary course of the provider’s business and as reasonably prescribed by the city, and as allowed by law.
(12) The city may require reasonable bonding requirements of a provider, as are required of all other entities that place facilities in the public rights-of-way.
(D) In determining whether any requirement under this section is unreasonable or unfeasible, the Public Works Director or his or her designee or his or her designee shall consider, among other things, whether the requirement would subject the provider or providers to an unreasonable increase in risk of service interruption, or to an unreasonable increase in liability for accidents, or to an unreasonable delay in construction or in availability of its services, or to any other unreasonable technical or economic burden.
(1998 Code, § 122-187) (Ord. 99-15, passed 4-7-1999)
(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)
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