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G-00-11-21-9B1 - 11/21/2000ORDINANCE NO. A ' OD- I I- 1 AN ORDINANCE AMENDING CHAPTER 10 UTILITIES, CODE OF ORDINANCES (1995 EDITION) CITY OF ROUND ROCK, TEXAS, TO ADD SECTION 10.900, "USE BY THIRD PARTIES OF CITY OWNED UTILITY INFRASTRUCTURE," AUTHORIZING THE MAYOR TO EXECUTE INFRASTRUCTURE USAGE LICENSING AGREEMENTS, AND REPEALING CONFLICTING ORDINANCES AND RESOLUTIONS. WHEREAS, the demand for wireless communication services in and around the City of Round Rock has increased at a rapid pace, and WHEREAS, wireless communication providers desire to increase the number of transmitters and receivers located in and around the City of Round Rock in order to satisfy this demand, and WHEREAS, the City of Round Rock desires to prevent the construction of multiple, large, unsightly towers in the City of Round Rock to be used for mounting said transmitters and receivers, and WHEREAS, the City of Round Rock has been approached by wireless communication companies regarding the use of city owned utility infrastructure for the purpose of mounting said transmitters and receivers, and WHEREAS, the City Council wishes to add Section 10.900, USE BY THIRD PARTIES OF CITY OWNED UTILITY INFRASTRUCTURE to Chapter of the Code of Ordinances (1995 Edition) City of Round Rock, Texas, and K:\WPDOCS\ORDINANC\00119D3.WPD/ec WHEREAS, the City Council wishes to authorize the Mayor to execute all agreements and licences, as required under the proposed addition, on behalf of the City of Round Rock, NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS: I. That, Chapter 10 of the Code of Ordinances (1995 Edition) City of Round Rock, Texas is amended to include Section 10.900, to read as follows: SECTION 10.900 USE BY THIRD PARTIES OF CITY OWNED UTILITY INFRASTRUCTURE 10.901 DEFINITIONS For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. (1) Applicant. Any person or entity which applies to use Utility Infrastructure owned by the City of Round Rock. (2) Attachments. An Attachment includes the following: (a) On a pole, each aerial cable, together with its associated messenger cable, guy wire, anchors and other appurtenant and incidental facilities; (b) In conduit, each linear foot of occupancy of a City -owned conduit or duct by each cable or other Attachment; (c) Each antenna, transceiver, amplifier, repeater or other device or equipment of a User that is supported by, affixed to, contained in, or placed on or in a unit of Utility Infrastructure. If a federal or state law or regulation which governs Attachments to City owned Utility Infrastructure provides for a definition of Attachment which conflicts with and preempts the definition set forth in this section, then the defmition of Attachment in such law or regulation shall control. 2 (3) Attachment Rights. All rights of a User to place, install, construct, replace, move, remove, keep, maintain, operate or use Attachments on or in City -owned Utility Infrastructure under this chapter or any permit or contract granted pursuant to this chapter. (4) Cable. A wire rope or a bound or sheathed assembly of conductors, wires or fibers, including, without limitation, fiber optic cable, coaxial cable, and twisted pair copper cable. Each cable that is lashed to another cable or to a common messenger cable shall be considered a separate Attachment. (5) City. The City of Round Rock, Texas, a home -rule municipal corporation. (6) Filing Fees. Non-refundable fees charged by the City to review and process an application to use Utility Infrastructure. (7) Infrastructure Usage License Agreement. The contract between the User and the City for use of Utility Infrastructure under this chapter that sets forth the terms and conditions to which the User's use of Utility Infrastructure is subject. (8) Person. An individual, corporation, or association. (9) PWD. The Public Works Department of the City of Round Rock. (10) Schedule of Charges. The schedule of charges payable under this chapter or under a contract entered into hereunder. The schedule shall include: filing fees; usage charges; and such charges and costs as the City may establish by ordinance or are agreed to by the parties in an Infrastructure Usage Agreement. (11) Usage Charges. Annual use and occupancy charges payable to the City for the Attachment rights granted to a User. (12) User. An applicant who has been granted the right to install an Attachment or Attachment in accordance with this chapter. (13) Utility Infrastructure. Water storage structures and transmission structures, ducts, electrical transmission and distribution poles and conduit, building entry conduit, utility tunnels, manholes, vaults, radio towers, other radio equipment, fiber optic cable capacity and active communications capacity, together with all appurtenant facilities owned by the City of Round Rock. SECTION 10.902 PURPOSE The purpose of this chapter is to establish a uniform policy for usage of Utility Infrastructure to enable the City to: (1) Permit fair, reasonable and non-discriminatory access to the available capacity on City owned Utility Infrastructure; (2) Safeguard the reliability and integrity of the City of Round Rock's Utility Infrastructure; 3 (3) Obtain fair compensation for the use of Utility Infrastructure through collection of usage and other charges; (4) Comply with all applicable federal, state and local laws, rules, regulations, ordinances, standards and policies; (5) Support cost-effective, optimal use of public resources and economic development through increased competition in the delivery of wireless telecommunications services; and (6) Avoid the congestion, inconvenience, cost, visual impacts, and other adverse effects on the City's street, highways and rights of ways which could result from the construction, operation and maintenance of redundant infrastructure. SECTION 10.903 UTILITY INFRASTRUCTURE (1) Right to Use of Utility Infrastructure Not Granted by Franchise The rights of persons to apply for or use Utility Infrastructure shall be governed by this chapter. The grant of a franchise under Article XI of the City Charter shall not be construed to grant Attachment rights or authorize the use of Utility Infrastructure without additional compliance by the franchisee with the provisions of this chapter. (2) Authority of Public Works Department (3) The PWD shall operate, maintain and control the Utility Infrastructure, and is charged with the administration of this chapter. The PWD shall develop non-discriminatory policies and regulations to implement, administer and enforce this chapter. The PWD may delegate the operation, maintenance or control of specific types or units of Utility Infrastructure to another City department if it is in the best interests of the City to do so. Priority of Usage The safe and reliable transmission and distribution of utility services to the citizens of the City of Round Rock have first priority over all other competing uses of Utility Infrastructure. (D) Reservation and Restrictions (a) Certain classes of Utility Infrastructure or specific units of Utility Infrastructure may be determined by the PWD, to be necessary for PWD's exclusive use due to legal, mechanical, structural, safety, environmental, service or other requirements, and therefore will be unavailable for use by others. (b) Some Utility Infrastructure is located on dedicated utility easements, which by their terms, limit the use of the easement by the PWD to the transmission and distribution of water and do not authorize other uses such as telecommunications. Nothing in this chapter shall be deemed to grant any third party rights in such easements without the prior consent of the grantor of the easement or its successor. All additional costs or expense to obtain the use by the User or applicant of such dedicated easements shall be borne solely by the User or applicant. 4 (c) Utility Infrastructure shall remain the property of the City and no payment made by User shall create in User any right, title, or interest in any Utility Infrastructure. (d) Nothing in this chapter shall be deemed to require the PWD to replace, upgrade or alter existing Utility Infrastructure to create additional capacity for Attachment. (5) Unauthorized Use Prohibited No applicant, User or other party shall have the right to place any Attachment on Utility Infrastructure except as authorized by the City hereunder. If one or more unauthorized Attachment are discovered, and the owner of the unauthorized Attachment(s) does not either undertake to remove the unauthorized Attachment(s), or make application for such Attachment(s) together with any applicable charges or penalties, the City may, but shall not be required to, remove the unauthorized Attachment(s) from Utility Infrastructure without incurring any liability to the owner and at the owner's sole expense. SECTION 10.904 FEES AND CHARGES (1) Filing Fees Filing fees shall be established by separate ordinance in accordance with the type and number of proposed Attachments and the Utility Infrastructure on or in which the proposed Attachments will be placed. (2) Usage Charges Usage charges may be established by separate ordinance or by agreement of the City and the User under an Infrastructure Usage Agreement; provided, however, that usage charges may not exceed the maximum amount permitted by applicable law. (3) Non-discrimination Filing fees and usage charges shall be calculated and applied in a consistent manner for all similarly situated Users. If filing fees or usage charges shall become subject to preemptive legislation or regulation by the State of Texas or the United States, then the filing fees and usage charges payable to the City shall be the maximum lawful amount permitted under such federal or state law or regulation. SECTION 10.905 APPLICATION FOR USE OF UTILITY INFRASTRUCTURE (1) Authorized Users Unless otherwise required by law, only applicants who hold a valid franchise or license to use or Utility Infrastructure, granted by the City, will be granted Attachment rights on Utility Infrastructure. The applicant shall be authorized to use Utility Infrastructure only for the purposes specified in its franchise or license. Attachments that are used for a purpose other than that authorized in the applicant's franchise or license shall be deemed to be unauthorized Attachments. Persons who seek to use Utility Infrastructure for private purposes may not be granted Attachment rights hereunder. 5 (2) Application Process (3) To obtain the right to use Utility Infrastructure, an applicant must file an application with the PWD in accordance with procedures developed by the PWD. Subject to availability of Utility Infrastructure capacity, all applications shall be considered on a first come, first serve basis. If an application cannot be approved as presented, PWD may approve an application subject to conditions. All conditions of approval shall be incorporated into the Infrastructure Usage License Agreement. Denial of an Application (a) An application may be denied if: (i) The applicant fails to submit a complete application; (ii) The applicant fails to supplement its application with additional information or otherwise cooperate with the City as requested in the evaluation of the application; (iii) The applicant fails to timely pay the required filing fees; (iv) The proposed Attachments are of excessive size or weight or would otherwise subject Utility Infrastructure to unacceptable levels of additional stress; (v) Approval would jeopardize the reliability or integrity of the public utility systems or of individual units of Utility Infrastructure; (vi) Approval would present a safety hazard to City employees or the public; (vii) Approval would impair the City's ability to operate or maintain Utility Infrastructure; (viii) Approval would require an unacceptable change, upgrade or addition to Utility Infrastructure; or, (ix) Approval would expose the City, the PWD, the public, or other Users to increased liability or financial risk. (b) If an application is denied, applicant shall be given written notice of the basis for denial. The denial of an application shall be without prejudice to the right of applicant to file a new application correcting any deficiencies that led to denial. If an application is denied, applicant shall have the right to appeal the denial of its application to the Director of the PWD or designee no later than 30 days after the date of the action being appealed, in accordance with procedures to be developed by the PWD. If, on appeal, the Director of the PWD or designee upholds the original PWD decision, such that the applicant has been denied all, or substantially, all Attachment rights, the applicant may appeal to the City Council in accordance with § 10.908. 6 (c) Additional Costs All costs to replace, enlarge or upgrade Utility Infrastructure to accommodate the proposed Attachments of an applicant or User, as determined by the PWD, shall be borne by the applicant or User. (d) Infrastructure Usage Agreement The City Attorney, in conjunction with the PWD, shall develop an Infrastructure Usage License Agreement consistent with this chapter. The Infrastructure Usage License Agreement must be fully executed and approved before the applicant may undertake any work or make any Attachments on any Utility Infrastructure. The applicant must pay all usage charges for the initial contract year in advance at the time of execution of the contract. If the annual usage charges to be paid to the City under an Infrastructure Usage License Agreement are less than the amount specified in the Round Rock City Charter as requiring approval of contracts by the City Council, the Director of the PWD, or designee, is hereby authorized to enter into and execute such infrastructure usage contract on behalf of the City without further action by the City Council. Infrastructure Usage License Agreements which will generate annual usage charges greater than said amount specified in the Round Rock City Charter or in the Round Rock City Code of Ordinances shall be subject to approval by the City Council. (v) The license agreement shall identify and establish procedures to limit the number, kind and location of Attachments that the User may place on any Utility Infrastructure, the method of construction or installation of User's Attachments, and the authorized use of the Attachments by User. User may not change the number, kind, location of Attachments, the method of construction or installation, or the use of the Attachments authorized under such contract without the prior written consent of the PWD, which shall not be unreasonably withheld. The denial or approval of an individual permit or Attachment shall be governed exclusively by the terms of the infrastructure usage contract, and shall not be subject to the provisions of §10.908. SECTION 10.906 OBLIGATIONS OF A USER (1) Compliance with Law The use of Utility Infrastructure shall at all times comply with all applicable federal, state, and local laws, rules and regulations, City ordinances, regulations and policies and all applicable industry standards. 7 (2) Operational and Maintenance Requirements (a) User shall in all cases and at all times install, operate and maintain its approved Attachments so as not to interfere with PWD facilities, the City use of Utility Infrastructure, or the facilities, attachments or operations of other Users. (b) User will not construe any contract, permit, correspondence or any other communication as affecting the rights, privileges or duties previously conferred or imposed by the City, by contract or otherwise, to or upon others. The City reserves the right to continue and extend such rights, privileges or duties and to admit other and different Users irrespective of the character or degree of economic competition that results. (c) User shall be responsible to perform all tree trimming necessary for the safe and reliable operation, use and maintenance of its Attachments. All tree trimming shall be performed in accordance with standards promulgated by the City. (d) Co -lashing or co -location of Attachments is prohibited without the prior written consent of the PWD, which consent may be subject to such conditions as the PWD may reasonably require. (e) Installation, operation and maintenance of User's Attachments shall be at the sole risk and expense of User. Neither the PWD nor the City warrants or represents that the Utility Infrastructure is suitable for placement of User's Attachments. User is expected to inspect the Utility Infrastructure on which its Attachments will be placed and shall rely solely on such inspection to determine the suitability of the Utility Infrastructure for User's purposes. User accepts the City's Utility Infrastructure AS IS and WHERE IS, and assumes all risks attendant to its usage. (f) If the PWD determines that a User's Attachments impair the safety or structural integrity of Utility Infrastructure, the PWD may require the User, at User's sole expense and risk, to change, alter, improve, move, remove or rearrange any of its Attachments. The PWD may also require a User to move or rearrange its Attachments of a new or other User, provided that such movement or rearrangement of Attachments will not materially impair the use or function of the existing User's system, and is subject to the agreement by the new or other User to compensate the existing User for its actual costs to move or rearrange Attachments. If a User fails or refuses to comply with the directions of the PWD to change, alter, improve, move, remove or rearrange any of its Attachments, such Attachments shall thereafter be deemed to be unauthorized. The PWD may (but shall not be required to) change, alter, improve, move, remove or rearrange such Attachments without incurring any liability to User, and at User's sole cost. (g) The PWD may inspect, at any time, the construction or installation of User's Attachments on Utility Infrastructure. If, in the course of any such inspection, the PWD finds that User's installation or construction violates any ordinance, code or statute the conditions of User's application, permit or Infrastructure Usage License Agreement, or this chapter, the PWD may immediately suspend User's construction or installation activities. The PWD shall send written notice to User within three business days after such suspension identifying the alleged violation. Such suspension shall be in effect 8 until such time as the User cures, at User's sole expense, the alleged violation. User may appeal a suspension under this subsection to the Director of the PWD or designee. (h) User shall not transfer, assign, convey or sublet any Attachment rights without PWD's prior written consent. Any purported transfer, assignment or subletting of any right granted hereunder without obtaining PWD's prior written consent, shall not be binding upon the City, but shall be a material default of User's infrastructure Usage License Agreement. (3) Termination (a) The City shall have the right to immediately suspend the rights of a User to make new or additional Attachments if the User materially fails to comply with the terms of its franchise, license or the Infrastructure Usage License Agreement upon written notice to User. If the User fails to cure the default within 60 days after receipt of such notice, the City may terminate User's Attachment rights. Immediately upon termination of a User's Attachment rights, whether in accordance with franchise, permit or contract terms, a voluntary termination by User, or a termination by the City for cause, the User shall commence removal of its Attachments. Unless an extension of time is granted by the PWD, all Attachments must be removed within 60 days after the effective date of termination. (b) (c) User shall continue to comply with the applicable terms of this chapter, User's franchise, license and Infrastructure Usage License Agreement after termination of its Attachment rights until such time as all Attachments are removed. (d) User may appeal the termination of its Attachment rights in accordance with the provisions of § 10.905 and § 10.908. During the pendency of an appeal, User may continue to use its existing Attachments, but may not make, change, alter, move, rearrange, construct or install any other or additional Attachments. SECTION 10.907 OTHER AGREEMENTS (1) Prior Agreements Any prior written agreement or any Infrastructure Usage License Agreement between a User and the City that has been executed and is in force prior to the effective date of this chapter ("Prior Agreement") will continue in force and effect until the prior agreement terminates in accordance with its terms. Until termination, the use of Utility Infrastructure under a prior agreement shall be subject to the terms of this chapter to the greatest extent possible, consistent with the terms of the prior agreement. Upon termination of a prior agreement, the continued use of Utility Infrastructure by such party shall be subject to the terms of this chapter. (2) Existing Users Any party using Utility Infrastructure at the effective date of this chapter without a prior agreement ("Existing User") shall comply with the provisions of this chapter and shall be subject to all duties and obligations of a User under this chapter. An existing User shall make application for use of Utility Infrastructure in accordance with the terms hereof within (60 days 9 after the effective date of this chapter. Between the effective date of this chapter and such time as the existing User's application is approved, the existing User may not place any new or additional Attachments on or in City -owned Utility Infrastructure. If an existing User falls to make application to use Utility Infrastructure hereunder within 60 days after the effective date of this chapter, or if such application is finally denied, the existing User shall promptly commence removal of its Attachments. If all Attachments are not removed within an additional 60 days (or other period agreed to by the PWD) the existing User shall be deemed to be a trespasser on City -owned Utility Infrastructure and its Attachments shall be deemed to be unauthorized Attachments. (3) Joint Use Contracts In the event that a party (a "Joint User") who owns or controls a minimum of 1,000 utility poles, or owns or controls other Utility Infrastructure, and offers the joint use of its utility structures to the PWD in consideration for use of City Utility Infrastructure, and the PWD desires to use the joint User's utility structures, the following shall apply: (a) The Joint User shall pay the City usage charges in accordance with §10.904(B). (b) Each party occupying jointly -used utility structures shall be responsible to perform its own work, including, but not limited to construction of jointly -used utility structures and the installation, operation, maintenance (including tree trimming), replacement, removal, rearrangement or relocation of its Attachments. If for any reason, the Joint User fails to perform work which it is obligated to perform on or concerning jointly - used utility structures owned by the City, the PWD may, but shall not be obligated to, perform such work on behalf of the Joint User. In such event, the Joint User shall pay the PWD its full cost of labor, material, equipment, plus overhead, general and administrative expense, general fund transfer and other charges and costs incurred by the PWD to perform such work, or the PWD may elect to own any Utility Infrastructure Improvements installed or constructed by the PWD. (c) Before a Joint User may occupy City -owned Utility Infrastructure, the Joint User must execute an Infrastructure Usage License Agreement consistent with the provisions of this chapter. (d) As a condition to being granted the use of City -owned Utility Infrastructure, the Joint User must agree not to unreasonably deny other Users the right to place Attachments on the Utility Infrastructure of the Joint User, to the extent that capacity or space is available, and subject to agreement upon terms and conditions (including the payment of reasonable and non-discriminatory fees) of usage between the Joint User and the other User. SECTION 10.908 APPEALS TO CITY COUNCIL (1) If an applicant has been denied Attachment rights substantially in their entirety under § 10.905(C), or if a User's Attachment rights have been terminated substantially in their entirety under § 10.906(C), the applicant or User may appeal the denial of its initial appeal by the Director of the PWD to the City Council. An appeal to the City Council shall be initiated by filing a written notice of appeal with the Director of the PWD no later than 14 days after the 10 date of the denial of applicant or User's appeal by the Director of the PWD or designee. The notice of appeal shall contain, at a minimum, the following information: (a) The name, address and telephone number of the appellant; (b) The name, address and telephone number of all interested parties, if any, including but not limited to, all existing Users of the units of infrastructure occupied by, or proposed to be occupied by, the appellant; (c) The decision being appealed; (d) The date of the decision being appealed; and (e) The basis of the appeal including a concise statement setting forth the reasons the appellant believes it was wrongfully denied Attachment rights or its Attachment rights were wrongfully terminated. (2) Upon receipt of a notice of appeal, the Director of the PWD shall schedule a public hearing before the City Council on the appeal, and shall notify the appellant and all interested parties of the time and date thereof by first class mail at least ten days prior to the date of the hearing. Notice of the hearing shall also be published in a newspaper of general circulation in the City before the 15th day before the date of the hearing. A public hearing may be postponed or continued in accordance with the provisions of the City Code. (3) The appellant has the burden of establishing that the decision being appealed was wrong. (4) Before opening the hearing, preliminary issues raised by the parties, such as a request for postponement or continuance, or questions of standing to bring an appeal shall be decided. The public hearing shall proceed as follows: (5) (a) A report from the Director of the PWD or appropriate City staff; (b) Presentation by the appellant; (c) Comment by any interested parties supporting the appeal; or (d) Comment by any interested parties opposing the appeal. The City Council shall have and may exercise all of the powers of the official whose decision is being appealed. The decision being appealed may be approved or denied in whole or in part, or may be modified. A decision on an appeal of the denial of Attachment rights shall be made in accordance with findings applying the grounds for denial in §10.905(C). A decision on an appeal of the termination of Attachment rights shall be made in accordance with findings applying the grounds for termination in §10.905(E)(6) and §10.906(C). SECTION 10.909 UNAUTHORIZED ATTACHMENTS UNLAWFUL (1) It shall be unlawful for any person to knowingly affix, install, place, attach, maintain, or fail to remove upon demand, any Attachment to City -owned Utility Infrastructure that has not been authorized by the City in accordance with the terms of this Chapter. 11 (2) It shall be unlawful for any person to use an Attachment on City -owned Utility Infrastructure to provide services not authorized by a City franchise, license or contract. (3) Each unauthorized Attachment or use shall be deemed to be a distinct and separate offense. Each day a violation of this chapter continues shall constitute a distinct and separate offense. (4) The violation of any provision of this chapter shall be unlawful and a misdemeanor offense. The penalty for any violation of this chapter shall be as provided in §1.1500 Round Rock City Code, except that the maximum fine for a violation shall be $100.00 per Attachment per day plus court costs and fees. II. A. All ordinances, parts of ordinances, or resolutions in conflict herewith are expressly repealed. B. The invalidity of any section or provision of this ordinance shall not invalidate other sections or provisions thereof. C. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Ordinance was adopted was posted and that such meeting was open to the public as required by law at all times during which this Ordinance and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended, and the Act. -t/'1 READ and APPROVED on first reading this the day of , 2000. READ, APPROVED and ADOPTED on second reading this the day of JANNE LAND, City Secretary 2000. 12 Ri -T . STLUKA, , MAYOR City of Round Rock, Texas DATE: November 15, 2000 SUBJECT: City Council Meeting — November 21, 2000 ITEM: 9.B.1. Consider an ordinance amending Chapter 10, Code of Ordinances, by adding Section 10.900 regarding the use of third parties of City - owned utility infrastructure for the installation of wireless communication transmitters and receivers. (Second Reading) This ordinance provides for the procedures for private telecommunication companies to place transmitters and receivers on City owned structures such as elevated water towers. The first reading of the ordinance was approved on November 9, 2000.