§ 37-21. Information technology installations on city-owned property.
(a)
Use of poles in the right-of-way.
(1)
The installation of network nodes, node support poles, and transport facilities in the public right-of-way shall comply with this section, the design manual in Appendix A of this chapter, chapter 29 of the City Code, and V.T.C.A., Local Government Code ch. 284. The chief information/technology officer shall establish forms, processes and procedures for carrying out this section.
(2)
City grants applicant the right to use city service poles for the purpose of attaching network node equipment based on the inventory of service poles. Access to individual city service poles will be determined on a case-by-case basis pursuant to the provisions of this chapter, the ROW ordinance, and applicable law.
a.
The applicant's right to use and occupy the public rights-of-way and attach to city service poles shall not be exclusive as the city reserves the right to grant a similar use of same to itself or any person or entity at any time.
b.
Applicant shall not sub-license to any third parties, or place facilities for the benefit of third parties in city right-of-way or on service poles to which applicant is granted access under this chapter and the ROW ordinance.
(3)
Public rights-of-way may be used by applicant in accordance with Section 4.10 of the UECM for the selection of network node sites and installation of network nodes, micro network nodes, and node support poles. The applicant may include new types of network node equipment that may evolve or be adopted using wireless technologies. Applicant shall, at its expense, comply with all applicable present and future federal, state, and local laws, ordinances, rules and regulations (including but not limited to laws and ordinances relating to health, safety, radio frequency emissions, and radiation) in connection with the installation, operation, maintenance, and replacement of network nodes, micro network nodes, and node support poles in the public right-of-way.
(4)
Network provider that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider agrees:
a.
Each application submitted to the city shall identify each network provider that is a wireless service provider utilizing the site.
b.
If the network node equipment installed by applicant has the radio frequency range to provide service to two (2) or more network providers that are wireless service providers, the applicant shall submit an application for each wireless service provider being provided network capacity or otherwise provided service from the site.
c.
Applicant shall not sublicense or in any way provide capacity in the right-of-way to other network providers that are not an electric utility but builds or install infrastructure for wireless service providers. Violation of this subsection shall be considered a material breach of the application and city shall have the right to withdrawal of all previous approvals at the site.
(5)
Nothing in this subsection (a) shall be interpreted to authorize the installation of macro wireless towers and related equipment and facilities, nor the installation on poles of wireless equipment and facilities designed for macro wireless towers.
(6)
The use of rights-of-way under this chapter does not include a license to install and operate wires and facilities to provide landline broadband backhaul transmission service, whether provided by a third-party provider, applicant, or a corporate affiliate of applicant. Any entity that provides landline broadband backhaul transmission service must have independent legal authorization to use public rights-of-way outside this chapter.
(7)
Not later than the 30th day after the date the city receives an application for a permit for a network node or node support pole, or the tenth day after the date the city receives an application for a permit for a transport facility, the city shall determine whether the application is complete and notify the applicant of that determination. If the city determines that the application is not complete, the city shall specifically identify the missing information. The chief information/technology officer and the right-of-way manager may designate one or more staff personnel to review and approve network node site applications, and shall have the authority to develop regulations for the efficient process of such applications.
(8)
Upon finding that the network node site application is complete, the city shall approve or deny such network node site application not later than the 60th day after the date the municipality receives the complete application, not later than the 150th day after the date the city receives the complete application for any node support pole, and not later than the 21st day after the date the city receives the complete application for a transport facility. Upon obtaining network node, node support pole, or transport facility approval including right-of-way permit, applicant may proceed to install the network node in coordination with any affected city departments. Upon completion of the installation, including a micro network node installation, applicant shall notify the chief information/technology officer, or his designee, in writing and provide a picture of said installation, city right-of-way permit number if applicable, the GIS coordinates, date of installation, company site ID#, type of pole used for installation, pole owner, and description/type of installation, which will be included in the network node or node support pole site application records. The city will also require the applicant to label the installation with the city right-of-way permit number for easy reference and verification by city personnel. An application shall be deemed approved if the application is not approved or denied on or before the applicable deadline for approval or denial as prescribed in this section.
a.
Network provider shall maintain a current inventory of network node, including mirco network node, and node support pole sites. Network provider shall provide to city a copy of the inventory of network node sites on an annual basis. The inventory of network node sites shall include city right-of-way permit number, GIS coordinates, date of installation, company site ID #, type of pole used for installation, pole owner, and description/type of installation for each network node installation. Concerning network node, mirco network node, and node support pole sites that become inactive, the inventory of sites shall include the same information as active installations in addition to the date the site was deactivated and the date the node or node support pole was removed from the public right-of-way. City shall compare the inventory of sites to its records to identify any discrepancies.
b.
Any unauthorized network node, including micro network node, or node support pole sites that are identified by the city as a result of comparing the inventory of network node sites to internal records or through any other means may be subject to immediate removal. City shall provide written notice to network provider of any unauthorized site identified by city staff and applicant shall have thirty (30) days thereafter in which to submit a preexisting city right-of-way permit for said site. Failure to produce a city right-of-way permit or notification of installation corresponding with the unauthorized site will result in the imposition of an unauthorized installation charge, which shall be calculated by applying the SB1004 fee formula to the period spanning from the original date of installation of the unauthorized site to the date of the written notice sent by city. The total amount resulting from this calculation shall be assessed an interest rate of twelve (12) percent to constitute the applicable unauthorized installation charge. Thereafter, applicant shall submit a network node site application and applicable annual right-of-way rate for the unauthorized network node site.
(9)
Network provider shall not be required to submit an application, obtain a permit, or pay an application fee for routine maintenance that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way or for replacing or upgrading a network node or pole with a 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 a public right-of-way. For purposes of this section a network node or pole is considered to be "substantially similar" if the new or upgraded network node, including the antenna or other equipment element, will not be more than ten (10) percent larger than the existing node, provided that the increase may not result in the node exceeding the size limitations set out in the design manual and V.T.C.A., Local Government Code ch. 284.
(10)
The city shall have the authority at any time to order and require applicant to remove and abate any network node, micro network node, or other structure that is in violation of the City Code of Ordinances. In case applicant, after receipt of written notice and thirty (30) days opportunity to cure, fails or refuses to comply, the city shall have the authority to remove the same at the expense of applicant, all without compensation or liability for damages to applicant.
(11)
Prior to conducting planned or routine maintenance on traffic signal system poles, the TCI Department shall provide applicant twenty-four (24) hours advance notice of such maintenance activities. In advance of such maintenance activities, network provider shall temporarily cut-off electricity to its network nodes and micro network nodes for the safety of maintenance personnel. In the event of failure of components of the traffic signal system for whatever reason, including damage resulting from vehicular collisions, weather related events, or malicious attacks, city will respond to restore traffic signal operations through the city's Transportation and Infrastructure Management Call Center (TIMCC) operated by the TCI Department. Should the events that result in damage or failure of the traffic light signal system also affect network nodes, applicant shall have the sole responsibility to repair or replace its network nodes and shall coordinate its own emergency efforts with the TIMCC.
(12)
Network providers shall maintain emergency contact information current at all times with the chief information/technology officer and the ROW manager.
(13)
In the event that applicant's network nodes interfere with the city's traffic signal system, public safety radio system, or other city communications infrastructure, applicant will respond to the city's request to address the source of the interference as soon as practicable, but in no event later than twenty-four (24) hours of receiving notice network provider must address the interference or shut down the network node.
a.
The applicant shall provide the chief information/technology officer or his designee an interference remediation report that includes the following items:
1.
Remediation plan. Devise a remediation plan to stop the event of interference;
2.
Time frame for execution. Provide the expected time frame for execution of the remediation plan; and
3.
Additional information. Include any additional information relevant to the execution of the remediation plan.
b.
In the event that interference with city facilities cannot be eliminated, applicant shall shut down the network node, including micro network node, and remove or relocate the node that is the source of the interference.
c.
Network provider's duty to remove and relocate its network nodes, including micro network nodes, and node support poles at its expense is not contingent on the availability of an alternative location acceptable for relocation.
(14)
City, or its designees, shall have the right to audit, examine or inspect, at the city's election and at city's expense, all of the applicant records at any and all applicant's locations relating to network node, micro network node, and node support pole deployments under this chapter and chapter 29 of the City Code. The audit, examination, or inspection may be performed by city's designee, which may include internal city auditors or outside representatives engaged by city. Applicant agrees to retain the applicant's records for a minimum of four (4) years, following removal of network nodes, micro network nodes, and node support poles, unless there is an ongoing dispute then, such retention period shall extend until final resolution of the dispute beyond the four (4) year retention period.
(15)
Applicant's records shall be made available at the city's designated offices within thirty (30) calendar days of the city's request and shall include any and all information, materials, and digital data of every kind and character generated as a result of installing and operating network nodes, micro network nodes, and node support poles in the right-of-way. Examples of applicant's records include but are not limited to copies of inventory of network node and node support pole sites, network node and node support poles site applications, right-of-way permit numbers, CPS Energy Attachment Permits, payment records for annual right-of-way rate and application fees, equipment invoices, subcontractor invoices, engineering documents, vendor contracts, network diagrams, internal network reports, and other documents related to installation of network nodes, micro network nodes, and node support poles in city right-of-way. The applicant bears the cost of producing, but not reproducing any and all requested business records
(16)
The indemnification provisions of V.T.C.A., Local Government Code §§ 283.057(a) and (b) shall apply to a network provider accessing the public right-of-way under this chapter and chapter 29 of this Code.
(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 chief information/technology officer. The chief information/technology officer 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 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 twenty (20) feet. Notwithstanding subsection 37-2(i), the chief information/technology officer in his 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 Bexar County Appraisal District. The petitioner will be responsible for paying the right-of-way appraisal separate from the processing fee. The chief information/technology officer 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 four (4) percent will be applied to the consideration amount for year one in order to derive the consideration amount for years two (2) to ten (10) of the license term. At the discretion of the chief information/technology officer, 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 chief information/technology officer 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 chief information/technology officer 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 sixty (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 chief information/technology officer. The chief information/technology officer may process requests and may establish forms and procedures to carry out this section. Wireless communications leases and collocation licenses are for twenty-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 sixty (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 (1½) 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 chief information/technology officer.
(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 chief information/technology officer can bind the city to tower leases or collocation licenses without specific city council action, if they conform to this section.
(7)
Validation of proper operation. Within forty-five (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 chief information/technology officer 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 chief information/technology officer in his discretion may engage an independent professional consultant to determine the lease rate. An annual escalation factor of four (4) percent will be applied to the consideration amount for year one in order to derive the consideration amount for years two (2) to twenty (20) of the lease term. At the discretion of the chief information/technology officer. The city reserves the right to revise its rate structure based on market conditions.
(d)
Communications facilities installed on city property not addressed in subsections (a), (b), and (c).
(1)
Communications facilities installed on city property pursuant to this subsection shall be by agreement negotiated by petitioner and the chief information/technology officer.
(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 four (4) percent 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 subsection, failure to cooperate shall include failure to initiate any response or action as described in the "Best Practices Guide" within twenty-four (24) hours of the city's notification.
(Ord. No. 2016-04-07-0240 , § 2, 4-7-16; Ord. No. 2017-08-31-0609 , § 1, 8-31-17)