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08-29-2017 Angenda with BackupMEETING AGENDA City Council REGULAR SESSION CITY COUNCIL AUGUST 29, 2017 HAL BALDWIN MUNICIPAL COMPLEX COUNCIL CHAMBERS 1400 SCHERTZ PARKWAY BUILDING #4 SCHERTZ, TEXAS 78154 City of Schertz Core Values Do the right thing Do the best you can Treat others the way you would want to be treated Work together cooperatively as a tea Call to Order — Regular Session Opening Prayer and Pledges of Allegiance to the Flags of the United States and State of Texas. (Councilmember Davis) City Events and Announcements • Announcements of upcoming City Events (B. James /D. Wait /S. Gonzalez) • Announcements and recognitions by City Manager (J. Kessel) Proclamation • Proclamation recognizing National Payroll Week (M. Carpenter /Andrea Spanley- Jones) Hearing of Residents This time is set aside for any person who wishes to address the City Council. Each person should fill out the speaker's register prior to the meeting. Presentations should be limited to no more than 3 minutes. All remarks shall be addressed to the Council as a body, and not to any individual member thereof. Any person making personal, impertinent, or slanderous remarks while addressing the Council may be requested to leave the meeting. Discussion by the Council of any item not on the agenda shall be limited to statements of specific factual information given in response to any inquiry, a recitation of existing policy in response to an inquiry, and /or a proposal to place the item on a future agenda. The presiding officer, during the Hearing of Residents portion of the agenda, will call on those persons who have signed up to speak in the order they have registered. 08 -29- 2017 - Council Agenda Workshop • Discussion and possible action regarding procedures to follow when filling an unexpected vacancy for any positions reporting directly to City Council. (Item requested by Councilmember Crawford) • Discussion and possible action regarding the official naming of "No Name Park ". (B. James /C. VanZandt /L. Shrum) Consent Agenda Items The Consent Agenda is considered self - explanatory and will be enacted by the Council with one motion. There will be no separate discussion of these items unless they are removed from the Consent Agenda upon the request of the Mayor or a Councilmember. 1. Minutes — Approval of the minutes of the Regular Meeting of August 22, 2017. Q. Kessel /B. Dennis /D. Schmoekel) 2. Boards, Commissions and Committee Member Appointments — Consideration and /or action approving the appointment of Ms. Rosalyn Wise as a Regular Member to the Historical Preservation Committee. (Mayor /Council /B. Dennis) 3. Ordinance No. 17 -D -28 — Consideration and /or action approving an Ordinance amending Chapter 86, Article V, Section 86 -1.49 Parking Prohibited on the drainage inlet in Fairhaven Subdivision on Greenridge 20 feet in front of the emergency gate to the Scenic Hills Community Subdivision. Final Reading (B. James /K. Woodlee /C. Palomo) Discussion Items 4. Public Hearing on Proposed Budget for FY 2017 -18 — Conduct a public hearing and consideration and /or action regarding the adoption of the FY 2017 -18 Budget. (Second PH required public hearing) (B. James /J. Walters) Ordinance No. 17 -T -30 — Consideration and /or action approving an Ordinance on the proposed FY 2017 -18 Budget. First Reading (B. James /J. Walters) 5. Public Hearing on Proposed Tax Rate — Conduct a public hearing and consideration PH and/or action regarding the adoption of the FY 2017 -1.8 Tax Rate. (Second required public hearing) (B. James /J. Walters) Ordinance No. 17 -T -31 — Consideration and /or action approving an Ordinance on the proposed FY 201.7 -1.8 Tax Rate. First Reading (B. James /J. Walters) 6. Ordinance No 17 -M -34 — Consideration and /or action approving an Ordinance authorizing the amendment of GASB 54 Fund Balance Standards, Applications, and Policy of the City of Schertz. First Reading (B. James /J. Walters) 08 -29 -2017 City Council Agenda Page - 2 - 7. Resolution No 17 -R -72 — Consideration and /or action approving a Resolution authorizing an lnterlocal Agreement for EMS Billing Services with the City of Alamo Heights. (D. Wait /J. Mabbitt) 8. Resolution No. 17 -R -74 — Consideration and /or action approving a Resolution authorizing a program and expenditures as provided for in the Economic Development Performance Agreement between the City of Schertz Texas Economic Development Corporation and Ace Mart Restaurant Supply Company. (J. Kessel/K. Kinateder) 9. Resolution No. 17 -R -76 — Consideration and/or action approving a Resolution Authorizing Agreements with the Texas Department of Public Safety. (D. Wait /M. Hansen) 10. Ordinance No 17 -D -32 — Consideration and /or action approving an Ordinance by the City Council of the City of Schertz, Texas establishing a public right -of -way management ordinance by the City of Schertz, Texas; regulating the physical use, occupancy and maintenance of city rights -of. -way by wireless network providers; describing the purpose; providing definitions; requiring compliance with the city design manual and applicable codes for the installation of network nodes, node support poles, and transport facilities pursuant to chapter 284 of the Texas local government code; providing city procedures for applications for permits; establishing time periods for approval of permit applications; providing application fees and annual public right -of -way rental rates; providing restrictions on placement of network nodes, node support poles and transport facilities in municipal parks, residential areas, historic districts and design districts; providing indemnity for the city; providing repealing and savings clauses; proving a Texas open meetings act clause; declaring an emergency and providing an effective date of September 1, 2017. First and Final Reading (D. Wait) 11. Ordinance No 17 -M -33 — Consideration and /or action approving an Ordinance by the City of Schertz, Texas, approving a Design Manual for the installation of network nodes, node support poles and transport facilities; and approving a pole attachment agreement regulating the installation of network nodes and transport facilities on city service poles and utility poles; declaring governing law; providing repealing and savings clauses; providing a Texas open meetings act clause; declaring an emergency and providing an effective date of September 1, 2017. First and Final reading (D. Wait) 12. Resolution No. 17 -R -77 — Consideration and /or action approving a Resolution authorizing the City Manager to enter into an Agreement with Green Valley Special Utility District and Triple H Development, LLC for the Exchange of Certificate of Convenience and Necessity related to the Development of Hallie's Cove. (D. Wait) 13. Ordinance No. 17 -M -35 — Consideration and /or action approving an Ordinance amending The City of Schertz Code of Ordinances by establishing fees for Wireless Network Nodes, Node Support Poles and Transport Facilities desiring to be placed in the Public Right of Way, declaring an emergency and providing an effective date of September 1, 2017. First and Final Reading (D. Wait) Roll Call Vote Confirmation Requests and Announcements 14. Announcements by City Manager. 08 -29 -2017 City Council Agenda Page - 3 - 15. Placing Items on Future Agendas: Member of the City Council may place items on future agendas provided the chair is able to determine unanimous consent. If objection is made by one or more members of the City Council, the Mayor shall instruct the City Secretary to place on the agenda for the next regular session an item to discuss the merits of placing the item that was objected to on a future agenda for full consideration. 16. Announcements by Mayor and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below) • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by community volunteers Adiournment CERTIFICATION I, DONNA SCHMOEKEL, DEPUTY CITY SECRETARY OF THE CITY OF SCHERTZ, TEXAS, DO HEREBY CERTIFY THAT THE ABOVE AGENDA WAS PREPARED AND POSTED ON THE OFFICIAL BULLETIN BOARDS ON THIS THE 25th DAY OF AUGUST 2017 AT 4:15 P.M. WHICH IS A PLACE READILY ACCESSIBLE TO THE PUBLIC AT ALL TIMES AND THAT SAID NOTICE WAS POSTED IN ACCORDANCE WITH CHAPTER 551, TEXAS GOVERNMENT CODE. D0Vuq,i2 Sr hV>ti06ZeL Donna Schmoekel, Deputy City Secretar I CERTIFY THAT THE ATTACHED NOTICE AND AGENDA OF ITEMS TO BE CONSIDERED BY THE CITY COUNCIL WAS REMOVED BY ME FROM THE OFFICIAL BULLETIN BOARD ON DAY OF 2017. Title: This facility is accessible in accordance with the Americans with Disabilities Act. Handicapped parking spaces are available. If you require special assistance or have a request for sign interpretative services or other services please call 210 - 619 -1030. The City Council for the City of Schertz reserves the right to adjourn into executive session at any time during the course of this meeting to discuss any of the matters listed above, as authorized by the Texas Open Meetings Act. Executive Sessions Authorized: This agenda has been reviewed and approved by the City's legal counsel and the presence of any subject in any Executive Session portion of the agenda constitutes a written interpretation of Texas Government Code Chapter 551 by legal counsel for the governmental body and constitutes an opinion by the attorney that the items discussed therein may be legally discussed in the closed portion of the meeting considering available opinions of a court of record and opinions of the Texas Attorney General known to the attorney. This provision has been added to this agenda with the intent to meet all elements necessary to satisfy Texas Government Code Chapter 551.144(c) and the meeting is conducted by all participants in reliance on this opinion. 08 -29 -2017 City Council Agenda Page - 4 - COUNCIL COMMITTEE AND LIAISON ASSIGNMENTS Mayor Carpenter Councilmember Davis— Place I Audit Committee Schertz Housing Authority Board Interview Committee for Boards and Commissions Interview Committee for Boards and Investment Advisory Committee Commissions Main Street Committee Main Street Committee - Chair TIRZ II Board Councilmember Gutierrez — Place 2 Councilmember Larson — Place 3 Main Street Committee — Vice Chair Mayor Pro -Tem Edwards — Place 4 Councilmember Thompson — Place 5 Audit Committee Audit Committee Hal Baldwin Scholarship Committee Investment Advisory Committee Interview Committee for Boards and Commissions Cibolo Valley Local Government Corporation Main Street Committee Councilmember Kiser — Place 6 Councilmember Crawford — Place 7 Schertz Animal Services Advisory Commission Schertz- Seguin Local Government Corporation Interview Committee for Boards and Commissions 08 -29 -2017 City Council Agenda Page - 5 - Agenda No. 1 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 Department: Subject: City Secretary Minutes The City Council held a Regular Meeting on August 22, 2017. . HHZTG • ' • On RM RECOMMENDATION Staff recommends Council approve the minutes of the Regular meeting of August 22, 2017. ATTACHMENTS Regular Meeting of August 22, 2017 minutes. MINUTES REGULAR MEETING August 22, 2017 A Regular Meeting was held by the Schertz City Council of the City of Schertz, Texas, on August 22, 2017, at 6:00 p.m. in the Hal Baldwin Municipal Complex Council Chambers, 1.400 Schertz Parkway, Building #4, Schertz, Texas. The following members present to -wit: Mayor Michael Carpenter Councilmember Mark Davis Councilmember Scott Larson Councilmember Angelina Kiser Staff Present: Executive Director Brian James City Attorney Dan Santee Mayor Pro -Tem Cedric Edwards Councilmember Ralph Gutierrez Councilmember Robin Thompson Councilmember Bert Crawford City Call to Order — City Council Regular Session Mayor Pro -Tem Edwards called the Opening Prayer and Pledtes of AI Texas. (Councilmember Crawford) Councilmember Crawford pfovic the flags of the United States and to order at 6: of T Kes Secretary Donna of the United States and State of by the pledges of allegiance to Events (B. James/D. Wait /S. Gonzalez) Executive Director Dudley Wait who provided the M11 .�1-" -l1111WO Schertz Visitor's Center Start your Friday off right with a free cup of coffee. Monday, September 4' City Offices Closed in Observance of Labor Day Friday, September 8' Ribbon Cutting — 3009 Hair Lounge 4:30 pm 2901 Ashley Oak Drive 8 -22 -201.7 Minutes Page -1- Saturday, August 9th Paws in the Pool Noon - 4:00 pm Pickrell Park Pool Sunday, August 10th Paws in the Pool Noon - 4:00 pm Wendy Swan Park Pool SAVE THE DATE Friday and Saturday, October 27 -29 Skvfiaht Balloon Fest River City Community Church Grounds, 16765 This family friendly event features competit trackless train rides, vendors and musical cony more information. Mayor Pro -Tem Edwards took a moment to say:-... to go out and view the `eclipse' with these glass out there and doing a great job. It was something it also being his birthday. Kuddos to the staff! Announcements and recognitions by balloon rides, food trucks, the Chamber at X 1950 for I reat opportunity it was yesterday He thanked the city staff for being nd dear to his heart —in addition to • Mr. Rod Woods, 3828 Hunters Glen, who spoke on the No Parking issue on. Greenridge Drive. They have a drainage problem there and if a car is parked over the drain in that area it impedes the xa'turl flow of the water into the storm drain. They have problems with vehicles parking there very frequently and consistently. They are also concerned about the parking in front of the emergency gates. • Mrs. Clare Layton, 12231 Lost Meadows Drive, who spoke on the Charters of Freedom, which includes the Declaration of Independence, the Constitution and the Bill of Rights in relation to tonight's third workshop regarding freedom of speech or press. She feels it is time at the local level to expand our founding father's original intent of the First Amendment and declare that, while the City protects `freedom of speech', the City also should insist that this speech is civil, polite and courteous. 8 -22 -201.7 Minutes Page - 2 - Workshop • Discussion and possible action regarding fee waivers for Guadalupe County for the renovation of the Riedel's building. (B. James) Mayor Pro -Tem Edwards recognized Executive Director Brian James who stated Guadalupe County has purchased the old :Riedel building off of FM 78 and has already started remodeling and making overall improvement efforts. They have had discussions with staff regarding the permitting processes and timelines and raised the issue of the county paying permit fees to the city —they asked if there were; any waiver allowances in the code. Since there is nothing in the code, staff said they could bring the request to Council to consider. A little background /history, we do charge fees for the school districts within the city, which are fairly substantial. Modifications have' be' n made in some, instances due to it being an instructional facility but they come to us fairly often and it does consume a lot of staff time to review their plans and perform inspections, etc. After doing some research we found we haven't done a lot of permitting with Guadalupe County in the past so it doesn't have the same impact of taking up a lot of staff time. Another consideration is that the buildipghas been sitting vacant for a long period of time. The County also does help fund the City,in ,several ways (i..,' over $217,000 per year for the Schertz Library). They also help support us ',with, some road construction projects. Staff estimates the pciittiig fees for the Riedel building would be around $60,000 and since the project i ,not complicated and would not consume a lot of their time and the fact that it is tackling an`issue whave had on this train road for a very long time and is only about 1/3 of the amount of funding „they give us each year, staff is comfortable with wanted to bring this information to council first and then afterwards, if approved by ,iI, they can move forward with the city attorney to work up an agreement. Mayor Pro -Tem Edwards recognized Councilmember Thompson who moved, seconded by Councilmember, Kiser to approve waiving the city permit fees for the Guadalupe County renovation project on the Riedel property off of FM 78 contingent on an ILA agreement being completed "by the City Attorney and City Staff. The vote was unanimous with Mayor Pro -Tem Edwards, Councilmembers Davis, Gutierrez, Larson, Thompson, Kiser and Crawford voting for and no one voting no. Motion passed. Precinct 3 Guadalupe County Commissioner Jim Wolverton and Precinct 4 County Commissioner Judy Cope came forward and expressed their individual thanks for approving this request. They thanked the City of Schertz for the great working relationship they have enjoyed through the years. They have had many meetings with Executive Director Brian James on this item and will continue to have some more meetings regarding the future joint use of this soon to be renovated property. 8 -22 -2017 Minutes Page - 3 - • Discussion and possible action regarding our fee schedule, goals, and spirit of that schedule and what we are trying to accomplish. (Mayor /Council) Mayor Pro -Tem Edwards recognized Finance Director James Walters who came forward with a powerpoint presentation explaining the differences they see in their fees and how they have done things in the past few years. He reviewed with Council the fee schedule by area (inspections, parks, civic center, etc.) and provided the fee amount history, historic revenues, a comparison of fees charged by benchmark cities, a summary of costs to provide service, and an overview of best practices /trends where available. Cities charge fees to bring in revenue to offset some use of a limited resource, emphasize a need for com° The goal is often to ensure our fees are in line with higher. Information was provided for the Sanitarian Other considerations are setting different fees for re; question is what is the larger goal. Mayor Carpenter arrived on the dais at ;2Sp.m. or fully cover costs, manage the and a penalty or deterrent. npetitors or at least not much -tions and Animal Services. or nonresidents. The final • Discussion and possible action regarding public speech, including the use of social media, by appointed members, of city boards, committees, commissions and members of other corporations or boards where the city council or the mayor may have appointment authority. (Item requested by Mayor Carpenter) Mayor Carpent r'Istated he requested this to be on the agenda for this week just to make sure there were nett any other comments, questions, or concerns as we move forward and that the position we are going to take as a council is clear so that staff and our city attorney have a clear understanding of what we are asking them to do or not to do. There were no further questions or comments from Council. Mayor Carpenter made a motion from the Chair, seconded by Councilmember Larson to direct staff and our city attorney's office to develop training and a disclosure regarding the provisions of the Texas Open Meeting Act for appointees to the various boards, committees, commissions and corporations to provide some training and or guidance regarding potential legal issues that might arise from certain disclosures that could directly and/or adversely 8 -22 -2017 Minutes Page - 4 - affect the members personally and /or adversely affect the City and that the City Council take no other action other than that with regard to the exercise of free speech by its residents whether they serve on a board, committee, or commission or corporation, or other appointed position or simply individual citizens, with the goal of having it completed before our next Volunteer Fair. The vote was unanimous with Mayor Pro -Tem Edwards, Councilmembers Davis, Gutierrez, Larson, Thompson, Kiser and Crawford voting for and no one voting no. Motion passed. Consent Agenda Items The Consent Agenda is considered self - explanatory and will be motion. There will be no separate discussion of these items u, Consent Agenda upon the request of the Mayor or a Councilmen 1. Minutes — Approval of the minutes of the leg minutes of the Special. Meeting of July 28, 2Q,17. (J. ed by the Council with one they are removed from the eting of August 8, 2017 and roving an .Ordinance setting Final Reading (J. Kessel/J. Discussion Items 3. Public Hearing on Proposed Budget for FY 2017 -18 — Conduct a public hearing regarding the adoption of the FY 20] 7 -18 Budget. (First required public hearing) (B. PH James /J. Walters) Mayor Carpenter recognized Finance Director James Walters who provided some highlights of the proposed budget which included the third year of implementing the Classification and Compensation Study, opening of fire station #3, 22 new personnel, new permit software, deferred park maintenance, a new Schertz SPIN event, vehicle and equipment replacement, 8 -22 -201.7 Minutes Page - 5 - a couple of redundant water loop lines out south, funding to include moving the FM 1103 utility lines, and some money for some drainage channel maintenance. There will be 22 new personnel hired; 4 crossing guards, 2 patrol officers, 1 plans examiner, 1 code enforcement officer, 6 firefighters, 3 EMTs, 3 water and sewer servicemen, and 2 drainage workers. In trying to address the citizen survey results we will be adding two police officers, focusing on park facility maintenance and building a new walking trail. Also, to be addressed will be storm water runoff and enforcement of city codes and ordinances by adding a code enforcement officer to staff. Comments from citizens attending the recently held community, budget meetings included a wish for more spending on parks personnel and upgrades, FM 1518 improvements cannot come fast enough, street improvements are a priority, needing more police officers on patrol and more code enforcement officers as well as more spending on library materials. The funding requested for next Fiscal Year is over ` $76.5 million. Mr. Walters showed several slides reflecting data for the fund balance /equity, general fund balances from 2007 through 2018, general fund revenue amounts estimated at $31.3 million, beginning and ending fund balance, and reserve policy (26 %) data a five -year foreca t,,,wdter and sewer fund data and drainage fund information. Mayor Carpenter opened the public hearing for comments and the following spoke: o Mr. Richard Dziewit, Chasi Drive, who eked a couple of questions about contracts and contractual wort, and how that affects the various departments. 4. Public Hearing on; Proposed Tax Rate — Conduct a public hearing regarding the PH adoption of the FY OJ 7 -18 Tax :Rate. (First required public hearing) (B James /J. Walters) Mayor Carpenter recognized Finance Director James Walters who presented a powerpoint presentation reflecting slides showing the property values for 2017 and the difference between adjusted taxable values. The Tax rate definitions of Effective, Rollback, Current, and Proposed Max were explained. The proposed max has been set at $0.4910. The rate has two components, M &O (for day to day operations) and I &S (to pay the City's debt). For this year's city tax rate ($0.4910) the average home value $211,80 would experience an increase in taxes of $35.00. The $35.00 increase with the effective rate is due to the lower commercial values and higher residential exemptions seen on the certified tax rolls. A chart of historic tax rates (M &O) & (I &S) was shown from FY 2006 through FY 2017. There were no questions or comments from Council. 8 -22 -201.7 Minutes Page - 6 - 5. Resolution No. 17 -R -65 — Consideration and /or action approving a Resolution authorizing an Agreement with the Developer of the Hallie's Cove Subdivision project for sewer pump and haul. (B. James) The following was read into record: RESOLUTION NO. 17 -R -65 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN AGREEMENT WITH THE DEVELOPER OF THE HALLIE'S COVE SUBDIVISION PROJECT FOR SEWER PUMP AND HAUL Mayor Carpenter recognized Executive Director Brian James'ho stated the property is to be served by the future South Schertz Sewer Treatment Plant and woman Hollering Creek trunk line. Rather than delay construction of the, subdivision until hse improvements are competed or construct a lift station and sewer lines now that would 'cat be needed upon completion of the South Schertz Treatment Plant and Woman Hollering Greek trunk line, the developer is requesting approval of a pump, nd ha l agreement. The City has entered into a similar agreement for the Reserve at Sch i'. They have actually used the San Antonio River Authority to do the actual hauling of the waste and we will do that again going forward. The benefit here is " it will not delay this development. Mr. James addressed questions from Council. The followinL, was RESOLUTION NO. 17-R-66 A RESOLUTION'BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS APPROVING A REQUEST FOR A HISTORICAL INCENTIVE PROGRAM FOR THE MAIN STREET AREA GRANT FOR 817 MAIN STREET IN THE CITY OF SCHERTZ, TEXAS, AND RELATED MATTERS IN CONNECTION THEREWITH Mayor Carpenter recognized Executive Director Brian James who stated this request is for a re -roof and is the last building down on Main Street before you get to Schertz Parkway; it is the Contreras Flowers and Gifts building. The Historical Preservation Committee also approved this. After this one, we will probably be working closely with the Main Street Committee going forward and we may want to also look at tweaking our grant program. 8 -22 -201.7 Minutes Page - 7 - This request is a little different in that the current roof is an asphalt shingle roof and the current owner is requesting a standing seam metal roof. This is not uncommon. This property is owned by Vickie Contreras. Mr. James addressed questions from Council. Mayor Carpenter recognized Councilmember Thompson who moved, seconded by Mayor Pro -Tem Edwards to approve Resolution No. 17 -R -66. The vote was unanimous with Mayor Pro -Tem Edwards, Councilmembers Davis, Gutierrez, Larson, Thompson, Kiser and Crawford voting for and no one voting no. Motion passed. Mayor Pro- Tem Edwards left the dais at 7:35 p.m. 7. Resolution No. 17 -R -67 - Consideration and /or an amendment to the Interlocal Agreement with School District (SCUCISD regarding hours of us The following was read into record: RESOLUTION NO- 17 :17 a Resolution authorizing niversal City Independent rn, (B. James) CITY OF SCHERTZ, TEXAS FOCAL AGREEMENT WITH BENT SCHOOL DISTRICT NATATORIUM AND OTHER Mayor Carpenter recognized, Executive Director Brian James who stated after being open for six months, th initial agreement listed very specific hours /days of usage by the school but now after they ci0ked at their student scheduling, we feel further adjustments are needed to, snake better use ,of student schedules and will also give us a little more public use time ,,:l�Ir. Ja1Tl S', ddresse& uestions and comments from Council. Mayor Carpenter recognized Councilmember Larson who moved, seconded by Councilmember Thompson to approve Resolution No. 17 -R -67. The vote was 4 -2 -0 with Councilmembers Davis, Gutierrez, Larson, and Thompson voting yes, and Councilmembers Kiser and Crawford voting no. Mayor Pro -Tem Edwards was absent from the dais. Motion passed. 8. Resolution No. 17 -R -68 - Consideration and /or action approving a Resolution authorizing approval of the Hazard Mitigation Plan with Bexar County. (D. Wait /K. Long) The following was read into record: RESOLUTION NO. 17 -R -68 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING APPROVAL OF THE HAZARD MITIGATION PLAN WITH BEXAR COUNTY, AND OTHER MATTERS IN CONNECTION THEREWITH. 8 -22 -201.7 Minutes Page - 8 - Mayor Carpenter recognized Fire Training and Safety Officer Chris Meek who stated this resolution is renewed every five years through the Bexar County Hazard Mitigation Plan. It covers Guadalupe, Comal, and Bexar County. This is necessary so that in case of a disaster we get our funding from FEMA and for any projects we may do in the next five years. Mayor Carpenter recognized Councilmember Thompson who moved, seconded by Councilmember Kiser to approve Resolution No. 17 -R -68. The vote was 6 -0 -0 with Councilmembers Davis, Gutierrez, Larson, Thompson, Kiser and Crawford voting for and no one voting no. Mayor Pro -Tem Edwards was absent from the dais. Motion passed. 9. Resolution No. 1.7 -R -69 - Consideration and/or action approving a Resolution authorizing the City Manager to sign an Interlocal Agreement for Fire Protection Services with Bexar County. (D. Wait /K. Long) The following was read into record: RESOLUTION N Mayor Carpenter recognized Coubcilffiember Larson who moved, seconded by Councilmember Gutierrez /,,approve Resolution No. 17 -R -69. The vote was 6 -0 -0 with Councilmembers Davis, Gutierrez, Larson, Thompson, Kiser and Crawford voting for ando one voting no. Mayor Pro -Tem Edwards was absent from the dais. Motion passed, Mayor Pro- Tem Edwards returned to the dais at 7:45 p.m. 10. Ordinance No. '17 -D -28 — Consideration and/or action approving an Ordinance amending Chapter 86, Article V, Section 86 -149 Parking Prohibited on the drainage inlet in Fairhaven Subdivision on Greenridge 20 feet in front of the emergency gate to the Scenic Hills Community Subdivision. First Reading (B. James /K. Woodlee /C. Palomo) The following was read into record: ORDINANCE NO. 17 -D -28 8 -22 -201.7 Minutes Page - 9 - AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING CHAPTER 86, ARTICLE V, SECTION 86 -149 PARKING PROHIBITED; AND PROVIDING AN EFFECTIVE DATE. Mayor Carpenter recognized Graduate Engineer Cecilia Palomo who stated she is requesting an ordinance for a `No Parking' designation in a drainage area in the Fairhaven Subdivision. Ms. Palomo showed pictures of the area where vehicles are consistently parking in the drainage area and also blocking the emergency gates. This issue was brought to the Commissioners on TSAC and they voted in favor :cif this No Parking designation. Ms. Palomo addressed questions from Council. Mayor Carpenter recognized Councilmember Councilmember Davis to approve Ordinano understanding that after the No Parking signs, an increased presence of police issuing warning tic] really taking place. The vote was unanin Councilmembers Davis, Gutierrez, Larson, Tl and no one voting no. Motion passed. 11. Resolution No. 17 -R -70 — Considerki authorizing purchases up to $80,000 with 2016 -17 fiscal year fob software and hardwa The following )son who moved, seconded by 17 -D -28 first reading with the installed that'we strive to have an he community is aware that this is th Mayor Pro -Tem Edwards, i, Kiser and Crawford voting for or action approving a Resolution. n Computer Warehouse for the FY les.' (B. James /M. Clauser) 17 -R -70 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING PURCHASES UP TO $80,000 WITH SOUTHERN COMPUTER WAREHOUSE FOR FISCAL YEAR 2016 -17, AND OTHER MATTERS IN CONNECTION THEREWITH Mayor Carpenter recognized Executive Director Brian James who stated the City has historically purchased software and hardware belonging from purchasing cooperatives (DIR and Buy Board) such as Southern Computer Warehouse and SHI. This has allowed the City to procure software and hardware for best -value and capitalize on volume discounts. For FY 2016 -17 the City has been making purchases throughout the year and anticipates making additional purchases this year and into FY 2017- 201.8. This fiscal year, IT has so far purchased around $48,000 of technology related equipment. Occasionally other departments will also purchase from this company which has now put us over the $50,000 mark - -right now we are at about $59,000. Since IT is needing to still make some purchases for this year, they are requesting approval to purchase another $21,000 worth of equipment in this fiscal year with this company. 8 -22 -201.7 Minutes Page - 10 - What we are going to do going forward is the IT Department will look at the companies we tend to purchase from frequently and will come forward to Council in next Fiscal Year with not to exceed amounts. It will probably be three different companies. Also, IT will become the monitor of the contracts with these companies. They will work with Finance to track all the purchases being made through these vendors so we don't exceed the amount limits. This item before you this evening is to allow IT to continue to make purchases from Southern Computer Warehouse for the remainder of this fiscal year so we don't have to go with a different vendor where we may not get as good a deal on our purchase(s). Mayor Carpenter recognized Councilmember Thompson who moved, seconded by Councilmember Gutierrez to approve Resolution. No. 11,4,=70. The vote was 6 -1 -0 with Mayor Pro -Tem Edwards, Councilmembers Gutierrez, Larson, Thompson, Kiser and Crawford voting for and Councilmember Davis voting no. Motion passed. A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AGREEMENTS WITH THE DRUG ENFORCEMENT ADMINISTRATION, AND OTHER MATTERS IN CONNECTION THEREWITH Mayor Carpenter recognized l olice Chief Hansen who stated the city currently has two investigatars:assigned`to L),EA'on twvo Jiff Pent task forces. The resources available to them are the seasoned investigators who are familiar with the area and local customs and in return we have the vailabiliy of resources from Federal law enforcement agencies as well as, a financial inceu itive as we are able to share in some of the seized assets -- -which has allowed us to have dcentlybeen able to authorize the purchase of a multi -use vehicle ($100,000 lue) and pads for an investigator position. Therefore, this is a renewal of the current agreements. Chief Hansen addressed questions /comments from Council. Mayor Carpenter'' recognized Councilmember Davis who moved, seconded by Councilmember 'Crawford to approve Resolution No. 17 -R -71. The vote was unanimous with Mayor Pro -Tem Edwards, Councilmembers Davis, Gutierrez, Larson, Thompson, Kiser and Crawford voting for and no one voting no. Motion passed. 13. Resolution No. 17 -R -73 — Consideration and /or action approving a Resolution authorizing a contract with J3 Company, LLC for the reconstruction of the Cibolo Creek Bridge at Lower Seguin Road. (D. Wait /D. Letbetter) The following was read into record: 8 -22 -201.7 Minutes Page - 11 - RESOLUTION NO. 17 -R -73 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A CONSTRUCTION CONTRACT WITH J3 COMPANY, LLC FOR THE RECONSTRUCTION OF THE CI.BOLO CREEK BRIDGE AT LOWER SEGUIN ROAD AND OTHER MATTERS IN CONNECTION THEREWITH Mayor Carpenter recognized Public Works Superintendent, Dou Letbetter who stated in June 2016 it was discovered that the Lower Seguin Road bridge that we share with the City of Cibolo was structurally unsound. It was closed as oob as possible and we have since had several meetings with Cibolo and Guadalupe and Biir, County representatives; it has been agreed to replace the current structure witha new one 42 4'X3' drainage boxes. This will also now increase the water flow, through there. Additionally, the roadway will increase from 1.6 ft. to 22 ft. On December 20, 2016, City Council authorized A Professional Services, Agreement with Lockwood, Andrews & Newnam, Inc., (LAN) forthe design of the Cibolo Creek Bridge Project. Additionally, Guadalupe County has also agreed to participate in the construction of the bridge which will save the proje t $50,000. i bids were received and analyzed by Public Uorks Director. The recommendation is to able construction cost is $325,545 and J3 for $298,489 and the city will also put in a Exceed amount of $328,489 which is still )enter recognized Mayor Pro -Tem Edwards who moved, seconded by ber Thutripson to approve Resolution No. 17 -R -73. The vote was unanimous )r Pro -Tem Edwards, Councilmembers Davis, Gutierrez, Larson, Kiser and Crawford voting for and no one voting no. Motion passed. 14. Ordinance No. 17 -T -29 — Consideration and/or action approving an Ordinance authorizing an amendment to the FY 2016 -17 General Fund to create and fund four additional Crossing' Guard positions. First Reading (D. Wait /J. Walters /M. Hansen) The following was read into record: ORDINANCE NO. 17 -T -29 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN AMENDMENT TO THE FY 2016 -17 GENERAL FUND TO CREATE AND FUND FOUR ADDITIONAL CROSSING GUARD POSITIONS; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES 8 -22 -2017 Minutes Page -12 - IN CONFLICT WITH THIS ORDINANCE; AND PROVIDING AN EFFECTIVE DATE Mayor Carpenter recognized Finance Director and Police Chief Michael Hansen who stated these are the same four crossing guards that are named in the 201.7 -18 budget. However, the school fiscal year doesn't always align with the city fiscal year and we would like to get those positions filled since school is about to start. They are currently funded within the capacity of this year's budget so there is no difficulty with the funding. Mayor Carpenter recognized Mayor Pro -Tern Edwards Councilmember Thompson to approve Ordinance No. 17 -T-29 unanimous with Mayor Pro -Tem Edwards, Councilmemers Thompson, Kiser and Crawford voting for and no one votin Roll Call Vote Confirmation Mayor Carpenter recognized Deputy City roll call vote for agenda items 1 -14. Requests and Announcements 15. 16. 17. Announcements by City Manager. No further announcements were made. Council member merits of the iter of the requested place on the ages item that wvas rib zo moved, seconded by ir'st reading. The vote was Davis, Gutierrez, Larson, no. Motion passed. Schmoekel ded the aced on .,a future agenda. No discussion of the Should a Council Member oppose placement fie Mayor shall instruct the City Secretary to on an item to discuss the merits of placing the for full consideration. and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below) • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by community volunteers Mayor Carpenter recognized Mayor Pro-Tern Edwards who stated he attended the Schertz Automotive ribbon cutting and the mixer for The Chamber. Also, compliments to city staff who did a wonderful job on the hosting the `eclipse' event at the park earlier this week. He congratulated Mayor Carpenter for his recent election as the new President of the TML Region 7 group. 8 -22 -201.7 Minutes Page -13 - Mayor Carpenter recognized Councilmember Davis who stated he attended the Schertz Housing Authority meeting last week and they were able to complete and send off their paperwork to participate in that federal lawsuit. Thanks to city staff for getting the interlocal agreement done and a check to them in time. Hopefully, this will eventually give them some money they originally lost out on in the first lawsuit in 2012. Mayor Carpenter recognized Councilmember Gutierrez who stated, in regard to the TML Region 7 meeting last week, not only was the Mayor voted President, but Cedric Edwards was voted in as Vice - President, and Ms. Brenda Dennis was voted in again as Treasurer. Mayor Carpenter observed that Region 7 is made up of 2 counties and just shy of 90 cities. There are four officers in any TML Region and the ` ,are 16 regions. The City of Schertz now holds the President's office, the Vice- President's office and the Treasurer's office and the Secretary's office is actually being hold by David'Harris, a former employee of the City of Schertz. The City of Schertz is highly involved in 'cion 7 and he thanks everyone involved for serving there. Adiournment 8 -22 -2017 Minutes Page -14 - meeting at 8:1.1 p.m. ael R. Carpenter, Mayor Agenda No. 2 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 Department: Subject: City Secretary Boards, Commissions and Committee Member Appointments The City Secretary's Department recently received an application from Ms. Rosalyn Wise who desires to be placed on the Historical Preservation Committee as an Regular Member. Ms. Wise's application was vetted through the interview committee where they agreed to recommend to Council the appointment. FISCAL IMPACT None RECOMMENDATION Staff recommends approving the appointment of Ms. Rosalyn. Wise as an Regular Member to the Historical Preservation Committee. ATTACHMENT Application (Council only) Agenda No. 3 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 Department: Engineering / Public Works Subject: Ordinance No. 17 -D -28 - An Ordinance by the City Council of the City of Schertz, Texas providing that the Code of Ordinances of the City of Schertz, Texas be amended by revising Chapter 86, Article V, Section 86- 1.49 Parking Prohibited. (Final Reading) C• � 1 A representative of the Scenic Hills Community contacted City Staff with concern regarding vehicle parking in front of the emergency access gate that separates Scenic Hills (a private subdivision) and Fairhaven (a public subdivision), and on top of a drainage inlet on the upstream side of the gate. City staff investigated parking, emergency gate access, and drainage conveyance at this location (Exhibits A & B). The area of interest for the proposed no parking zone is 20 feet in front of the emergency access gate on Greenridge on the Fairhaven side (Exhibit Q. The Scenic Hills Community has already established a no parking zone on their side of the gate. The parking restriction would allow the gate to be opened more readily and provide better access in emergency situations. The restriction would also keep vehicles from parking on a drainage inlet on the upstream side of the gate (Exhibit B). A vehicle parked over the inlet impedes stormwater flow during rain events. When flow is restricted from efficiently entering the underground drainage system, it bypasses the inlet and continues traveling on the surface, down the street on the private roadways of Scenic Hills. Staff is also investigating potential additional drainage improvements to the same drainage system that flows from Fairhaven into Scenic Hills. The restriction from having any vehicles parked in front or on the inlet is the first step toward improving drainage in the vicinity. The proposed establishment of a No Parking zone at this location was presented to the Transportation Safety Advisory Commission (TSAC) at the regular meeting on August 3, 2017. TSAC recommended approval of a "No Parking" ordinance 20' in front of the emergency access gate, though some commissioners were concerned about this change prohibiting a person from parking in front of their own home. City Council approved this on first reading at their meeting of August 22, 2017. Goal To ensure that emergency access gates are easily accessible and that City drainage inlets are not restricted of capturing the flow of stormwater. Community Benefit To provide for unobstructed runoff conveyance into the City's drainage inlet and to provide unimpeded emergency access through the emergency gate. Summary of Recommended Action. Staff and TSAC recommend approval to prohibit parking in front of the emergency access gate and over the drainage inlet on Greenridge in the Fairhaven Subdivision. FISCAL IMPACT The fiscal impact will be approximately $200 for no parking signs paid out of FY 2016 -17 approved budget account number 101- 359 - 551600 Street Maintenance. RECOMMENDATION Staff recommends Council approve on final reading Ordinance No. 17 -D -28 to amend Chapter 86, Article V, Section 86 -1.49 Parking Prohibited of the Code of Ordinances to include No Parking in front of the drainage inlet shown on Exhibit C. Exhibit A: Subdivision separation by emergency gate Exhibit B: Vehicle parked in front of gate and on the drainage inlet Exhibit C: Proposed No Parking Zone (-20 ft.) in front of Emergency Access Gate on Greenridge in Fairhaven Subdivision ATTACHMENTS Ordinance No. 17 -D -28 ORDINANCE NO. 17 -D -28 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING CHAPTER 86, ARTICLE V, SECTION 86 -149 PARKING PROHIBITED; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, it has been established that parking should be prohibited on the drainage inlet in Fairhaven Subdivision on Greenridge 20' in front of the emergency access gate to the Scenic Hills Community Subdivision. The No Parking zone will be limited to 20' along the curb parallel the curb drainage inlet as well as in front of the access gate. This No Parking area is not currently covered under Chapter 86, Article V, Section 86 -149 Parking Prohibited of the City Code of Ordinances; and WHEREAS, it is recommended to add these areas as shown in Exhibit A to the City Code of Ordinances under Article V, Section 86 -149, Parking Prohibited. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: THAT: Section 1. Chapter 86, Article V, Section 86 -149 of the Code of Ordinances, Parking Prohibited by the City of Schertz, Texas is amended to add the following: (a) When signs are erected and/or, when recommended by the City Engineer or the Chief of Police, curb(s) are marked by painting them red with "No Parking" painted in white letters thereon, giving notice thereof, no person shall park a vehicle at any time (or at times as limited) upon any of the following streets or portions thereof. Street Extent Greenridge 20' in front of emergency access gate on Greenridge (in Fairhaven Subdivision) along the curb and gutter. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. Section 3. All ordinances and codes, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. Section 4. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City hereby declares that this Ordinance would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 7. This Ordinance shall be effective upon the date of final adoption hereof and any publication required by law. Section 8. This Ordinance shall be cumulative of all other ordinances of the City of Schertz, and this Ordinance shall not operate to repeal or affect any other ordinances of the City of Schertz except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any, are hereby repealed. Approved on first reading the 22nd day of August 2017. . PASSED, APPROVED AND ADOPTED on final reading the 29th day of August 2017. . Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (SEAL OF THE CITY) Exhibit A: Proposed No Parking Zone ( -20 ft.) in Front of Drainage Inlet and Emergency access gate on Greenridge in Fairhaven Subdivision. City Council Meeting: Department: Subject: BACKGROUND Agenda No. 4 C X111 &WON111041IaU1DIU to] 710 Rod 1 August 29, 2017 Finance Ordinance No. 17 -T -30 — Conduct a public hearing and consideration and /or action approving an ordinance adopting a budget for the fiscal year beginning October 1, 2017, and ending September 30, 2018. First Reading (B. James /J. Walters) In accordance with applicable statutes and the City Charter, the City Manager submitted a budget proposal to the City Council for consideration. The City Council held public hearings for the Proposed Budget on August 22, 2017 and August 29, 2017, including the budget of the Schertz Economic Development Corporation. FISCAL IMPACT General Fund $31,354,058 Special Events Fund $ 170,200 PEG Fund $ 200,000 Water & Sewer Fund $22,652,670 EMS Fund $ 9,007,1.73 Drainage Fund $ 2,763,927 Hotel . Tax Fund $ 322,836 Park Fund $ 130,000 Tree Mitigation $ 157,000 Capital Recovery -Water $ 256,000 Capital Recovery -Sewer $ 335,500 Tax I &S Fund $ 6,994,532 Library Board $22,500 Historical Committee $11,750 SEDC $ 2,209,865 Total $76,588,011 RECOMMENDATION Staff recommends that the City Council approve second and final reading of Ordinance No. 17 -T- 30, adopting the budget for the fiscal year beginning October 1, 2017 and ending September 30, 2018. . ATTACHMENT City Council Memorandum Page 2 Ordinance No. 17 -T -30 W a 7 ,1104 S fflnre"I&H AN ORDINANCE ADOPTING A BUDGET FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 2017, AND ENDING SEPTEMBER 30, 2018, IN ACCORDANCE WITH THE CHARTER OF THE CITY OF SCHERTZ, TEXAS; PROVIDING FOR THE FILING OF THE BUDGET; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Schertz is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, the City Manager of the City of Schertz submitted a budget proposal to the City Council prior to the beginning of the fiscal year, and in said budget proposal set forth the estimated revenues and expenditures and made the detailed classification as required by the City Charter of the City of Schertz, Texas; and WHEREAS, the City Council finds that all provisions pertaining to the adoption of a budget contained in the City Charter have been in all things complied with; and WHEREAS, a Public Hearing was held by the City Council of the City of Schertz, Texas on the 22nd day of August 2017, and the 29th day of August 2017; and WHEREAS, after a full and final consideration, the City Council is of the opinion that the budget should be approved and adopted; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS, THAT: SECTION 1. The budget of the expenditures of the City of Schertz for the ensuing fiscal year beginning October 1, 2017, and ending September 30, 2018, be, and the same is, in all things, adopted and approved as the said City of Schertz budget for the Fiscal Year beginning the first day of October 2017, . and ending the thirtieth day of September 2018. SECTION 2. The sums below are hereby appropriated from the respective funds for the payment of expenditures on behalf of the City government as established in the approved budget document: 2017 -2018 Budget General Fund $31,354,058 Special Events Fund $ 170,200 PEG Fund $ 200,000 Water & Sewer Fund $22,652,670 EMS Fund $ 9,007,173 Drainage Fund $ 2,763,927 Hotel Tax Fund $ 322,836 Park Fund $ 130,000 Tree Mitigation $ 157,000 Capital Recovery -Water $ 256,000 Capital Recovery -Sewer $ 335,500 Tax I &S Fund $ 6,994,532 Library Board $ 22,500 Historical Committee $ 11,750 SEDC $ 2,209,865 Total $76,588,011 SECTION 3. A true and correct copy of this ordinance along with the approved budget attached hereto, and any amendments thereto, shall be filed with the City Secretary. In addition, the City Manager is hereby directed to file or cause to be filed a true and correct copy of this ordinance along with the approved budget attached hereto, and any amendments thereto, in the office of the County Clerk of Guadalupe, Comal, and Bexar Counties, Texas, as required by law. SECTION 4. This ordinance shall be cumulative of all provisions of ordinances and of the Code of Ordinances of the City of Schertz, Texas (2006), as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event the conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 5. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph, or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph, or section. SECTION 6. This ordinance shall be in full force and effect from and after its final passage, and it is so ordained. PASSED AND APPROVED ON FIRST READING THIS 29th DAY OF AUGUST 2017. PASSED AND APPROVED ON SECOND READING THIS 5th DAY OF SEPTEMBER 2017. Michael Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary Agenda No. 5 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 Department: Finance Subject: Ordinance No. 17 -T -31 — Conduct a public hearing and consideration and /or action approving an ordinance approving the appraisal roll; setting the tax rate; levying and assessing general and special ad valorem taxes for the use and support of the municipal government of the city of Schertz, Texas. First Reading (B. James /J. Walters) BACKGROUND At the August 8, 2017 regular session, the City Council, by record vote, established a proposed preliminary maximum tax rate of $0.491.0, per $100 of value, with the M &O rate at $0.3248 and the I &S portion of $0.1662. The proposed rate is not subject to rollback. In accordance with Chapter 26.05(d) of the State's Property Tax Code, a governing body must hold 2 public hearings on the tax rate if the proposed tax rate exceeds the lower of the Effective or Rollback Tax Rate. In this case the hearings are not required as the proposed rate does not exceed the effective rate. The first required public hearing was held on August 22, 2017 regular session of City Council. The second required public hearing will be conducted at the August 29, 2017 regular session. During the final tax rate adoption process Council can approve a lower rate at that time, however they will not be able to approve a rate higher than this without republishing the notices and holding additional public hearings. Due to timing constraints set by the State Tax Code 26.05(a), the latest council could set a new preliminary rate is August 29, 2017 . without calling special meetings. FISCAL IMPACT The proposed maximum rate maintains quality service to residents and businesses and provides growth in service offerings based on input staff received from Citizens and Council from Retreats, Community Meetings, Citizen Survey, and elections. The current property tax rate is $0.4911 per $100 valuation. The proposed maximum tax rate will be $0.4910 per $100 valuation. The M &O portion of the property tax rate will increase to $0.3159 from $0.3248 per $100 valuation. The I &S portion will decrease to $0.1752 from $0.1662 per $100 valuation. RECOMMENDATION City Council Memorandum Page 2 Staff recommends that the City Council approve Ordinance No. 17 -T -31 approving the Fiscal Year 201.7 -1.8 Proposed Tax Rate on first reading. ATTACHMENT Ordinance No. 1.7 -T -31. ORDINANCE NO. 17 -T -31 AN ORDINANCE APPROVING THE APPRAISAL ROLL; SETTING THE TAX RATE; LEVYING AND ASSESSING GENERAL AND SPECIAL AD VALOREM TAXES FOR THE USE AND SUPPORT OF THE MUNICIPAL GOVERNMENT OF THE CITY OF SCHERTZ, TEXAS; APPORTIONING THE LEVIES FOR SPECIFIC PURPOSES; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Manager of the City of Schertz submitted a tax rate proposal to the City Council prior to the beginning of the fiscal year, and in said tax rate proposal set forth the estimated necessary tax rate required to provide adequate revenues for the general use and support of the Municipal. Government of the City of Schertz Texas; and WHEREAS, the City Council finds that all provisions pertaining to the adoption of an ad valorem tax rate have been in all things complied with; and WHEREAS, a Public hearing was held by the City Council of the City of Schertz on the 8th day of August 2017 and a second Public Hearing was held on the 22nd day of August 2017; and WHEREAS, after a full and final consideration, the City Council is of the opinion that the tax rate and ad valorem tax appraisal roll should be approved and adopted; and WHEREAS, the taxes have been levied in accordance with the adopted 2017 -1.8 budget as required by state law; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS, THAT: SECTION 1. The ad valorem tax appraisal roll and effective tax rate information as presented by the tax assessor for the tax year 2017, be and is hereby in all things approved and adopted. SECTION 2. This tax rate will raise more taxes for Maintenance and Operations than last year's tax rate. SECTION 3. This tax rate will raise taxes for Maintenance and Operations on the average Home by approximately $35.00. There is hereby levied and assessed and there shall be collected for the tax year 2017 . for the general use and support of the Municipal Government of the City of Schertz, Texas a total ad valorem tax of Forty -Nine Ten Cents ($0.4910) on each One Hundred Dollars ($100.00) of valuation of property — real and personal — within the corporate limits of the City of Schertz, Texas, subject to taxation. The assessment ratio shall be One Hundred percent (100 %). SECTION 5. The City Council of the City of Schertz, Texas, does hereby levy or adopt the tax rate on $100.00 valuation for this city for tax year 2017 . as follows: 1. 0.3248 for the purpose of maintenance and operation 1. 0.1662 for the payment of principal and interest on debt 2. 0.4910 total tax rate SECTION 6. SECTION 7. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of the ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 8. This ordinance shall be in full force and effect from and after its passage, and it is so ordained. SECTION 9. Ad valorem taxes for the year are due and payable on October 1, 2017 and shall become delinquent after January 31, 2018. . A delinquent tax shall incur all penalty and interest authorized by state law, Section 33.01 of the Property Tax Code. Taxes that remain delinquent on and after July 1, 2018, incur an additional penalty of 15% of the amount of the taxes, penalty and interest due, such additional penalty to defray the cost of collection as authorized in Section 6.30 of the Property Tax Code. The City shall have available all rights and remedies provided by law for the enforcement of the collection of taxes levied under this ordinance. SECTION 10. Taxes are payable at the office of the counties of Comal, Bexar and Guadalupe. PASSED AND APPROVED ON SECOND READING THIS 5th DAY OF SEPTEMBER 2017. Michael Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary Agenda No. 6 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 Department: Finance Subject: Ordinance 17 -M -34 - An Ordinance authorizing the amendment of GASB 54 Fund Balance standards, applications, and policy of the City of Schertz; and related matters in connection therewith (First Reading) BACKGROUND The Governmental Accounting Standards Board ( "GASB ") is the independent organization that establishes and improves standards of accounting and financial reporting for state and local governments and is recognized by governments, the accounting industry, and capital markets as the official source of generally accepted accounting principles (GAAP) for state and local governments. Beginning in June, 2010, . GASB made into effect Statement 54 which became the new standard for fund balance reporting and governmental fund type definitions. The new standards included definitions of the different types of fund balances and required they be identified in the annual finance statement. These fund balance classifications were: non - spendable, restricted, committed, assigned, and unassigned. By Ordinance 1.2 -M -02, the City of Schertz adopted the new standards for reporting and definitions. Ordinance 12 -M -02 also included a requirement to hold a minimum of 25% of its annual operating expenses in reserves at all times. If the city were to fall below that requirement, it would have to replenish the reserve back to the minimum within 5 years. The proposed ordinance will replace the previous policy with an updated one. The same definitions of the fund balance types and the requirement to return to a minimum fund balance within 5 years is still part of the policy. The updated sections include additional definitions, a new minimum requirement of 26% of operating expenses, and a more detailed outline for the building up and use of the unrestricted fund balances. The notable section updates will be the new requirement to stick as close to the 26% requirement unless council has authorized additional savings above the target. Another notable section will be the breakdown of the 26% requirement into 2 parts; 1% for contingency to be used for emergencies and 25% for declared disasters in the City. 50472689.1 City Council Memorandum Page 2 FISCAL IMPACT This policy update's fiscal impact can be seen in the proposed budget and 5 year forecast. The city will use the excess fund balance it has above the 26% mark to further additional services and maintenance with the goal of reducing the unrestricted fund balance to 26% by the fiscal year 2021 -22. Approval of Ordinance No. 17 -M -34 on first reading ATTACHMENT 160-1 Exh Me ' 1 AN ORDINANCE AUTHORIZING THE AMENDMENT OF GASB 54 FUND BALANCE STANDARDS, APPLICATIONS, AND POLICY OF THE CITY OF SCHERTZ; AND RELATED MATTERS IN CONNECTION THEREWITH WHEREAS, the Governmental Accounting Standards Board ( "GASB ") is the independent organization that establishes and improves standards of accounting and financial reporting for state and local governments and is recognized by governments, the accounting industry, and capital markets as the official source of generally accepted accounting principles (GAAP) for state and local governments; WHEREAS, the Governmental Accounting Standards Board ( "GASB ") has adopted Statement 54, a new standard for governmental fund balance reporting and governmental fund type definitions that became effective in governmental fiscal year starting after June 15, 2010; WHEREAS, the City Council (the "Council ") of the City of Schertz, Texas (the "City ") through Ordinance 12 -M -02, authorized the implementation of GASB 54 requirements, and directed that such requirements be applied to its financial statements beginning with the October 1, 2010 to September 30, 2011 fiscal year; WHEREAS, the City of Schertz has found it necessary to update the Fund Balance Policy to be effective October 1, 2017; and WHEREAS, the City hereby finds and determines that the adoption of this Ordinance is in the best interests of the citizens of the City; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The Council hereby approves the adoption of the new GASB 54 Standards Fund Balance Policy as attached in Exhibit A. Section 2. The Council delegates to the City Manager the responsibility to assign money in funds when authorized fund balance is available. Section 3. All ordinances and resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. Section 4. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. 50472688.1 -1- Section 5. If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the Council hereby declares that this Ordinance would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 7. This Ordinance shall be in force and effect from and after its final passage, and it is so ordered. PASSED ON FIRST READING on the 29th day of August, 2017. PASSED AND ADOPTED on second and final reading on the 5th day of September, 2017. CITY OF SCHERTZ, TEXAS C City Secretary (SEAL OF THE CITY) 50472688.1 Mayor EXHIBIT A C lia 11,911 1 a 10 L, 111 "Al '3 (see Attached) 50472688.1 A -]. 50472688.1 CHIENT OGDMMUNITY PPORTUNFTY CITY OF SCHERTZ FINANCIAL POLICY PREPARED BY: Finance APPROVED BY: City Council DATE APPROVED: TBD EFFECTIVE DATE: 10/01/2017 REPLACES VERSION: ORD 12 -M -02 Purpose: The purpose of this policy is to establish a key element of the financial stability of the City of Schertz by setting guidelines for fund balance. Unassigned fund balance is an important measure of economic stability and it is essential that the City maintain adequate levels of unassigned fund balance to mitigate financial risk that can occur from unforeseen revenue fluctuations, unanticipated expenditures, and other similar circumstances. This policy will ensure the City maintains adequate fund balances in the operating fund with the capacity to: 1. Provide sufficient cash flow for daily financial needs, 2. Provide funds for unforeseen expenditures related to Disasters, 25 %, and/or a Contingency, 1 %. 3. Offset significant economic downturns or revenue shortfalls, and 4. Secure and maintain investment grade bond ratings. Definitions: Contingency- An amount over the minimum required fund balance that allows the City to achieve proposed levels of service in the event that revenues do not meet projections, expenses exceed projections for items that cannot be accurately be projected for a particular year, such as building repair costs, or to provide an immediate increase in level of service or maintain the proposed level or service in the event of a changed condition. Disaster — A disaster is officially declared by the Mayor when an emergency situation has caused severe damage, injury, or loss of life or it appears likely to do so, of either man . made or natural causes. Additional funds outside of operations would be required to support rescue operations and/or make up for lost revenue caused by large commercial property loss. Fund Balance - An accounting distinction is made between the portions of fund equity that are spendable and non - spendable. These are broken into five categories: 1. Non- spendable fund balance - includes amounts that are not in spendable form or are required to be maintained intact. Examples are inventory, endowment, permanent CHIENT OGDMMUNITY PPORTUNRY CITY OF SCHERTZ FINANCIAL POLICY funds, and prepaid items (to the extent that such balances are not offset with liabilities and actually result in fund balance). 2. Restricted fund balance - includes amounts that can be spent only for the specific purposes stipulated by external resource providers either constitutionally or through enabling legislation. Examples include grants and child safety fees. 3. Committed fund balance - includes amounts that can be used only for the specific purposes determined by a formal action of the government's highest level of decision making authority (City Council). Commitments may be changed or lifted only by the government taking the same formal action that imposed the constraint originally. 4. Assigned fund balance - comprises amounts intended to be used by the government for specific purposes. Intent can be expressed by the governing body or by an official or body to which the government delegates the authority. In governmental funds, assigned fund balance represents the amount that is not restricted or committed. This indicates that resources in other governmental funds are, at a minimum, intended to be used for that fund. Such assignments cannot exceed the available (spendable, unrestricted, uncommitted) fund balance in any particular fund. 5. Unassigned fund balance - is the residual classification of the general fund and includes all amounts not contained in other classifications. Unassigned amounts are technically available for any purpose. In other funds, the unassigned classification should be used only to report a deficit balance from overspending for specific purposes for which amounts had been restricted, committed, or assigned. Fund Equity - A fund's equity is generally the difference between its assets and its liabilities and is the accounting equivalent to Fund Balance for non - governmental funds, ie the Water & Sewer Funds, the Drainage Fund, and the Emergency Medical Service (EMS) Fund. Non - Governmental Funds - City Funds set up to operate like a business and balance their expenditures based on fees collected for their services. Fund Balance Polic Committed Fund Balance The Council is the City's highest level of decision - making authority and the formal action that is required to be taken to establish, modify, or rescind a fund balance commitment is a resolution approved by the City Council. The resolution must either be approved or rescinded, as applicable, prior to the last day of the fiscal year for which the commitment is made. The amount subject to the constraint may be determined in the subsequent period. CHIENT OGDMMUNITY PPORTUNFTY CITY OF SCHERTZ FINANCIAL POLICY Assigned Fund Balance The City Council has authorized the City Manager as the officials authorized to assign the fund balance to a specific purpose as approved by this fund balance policy. Target Unrestricted Fund Balance The City's goal is to achieve and maintain an unrestricted fund balance in the General Fund equal to 26% of budgeted operating expenditures, 25% for a Disaster, and 1% for Contingency. The unrestricted fund balance is made up of the committed fund balance, the assigned fund balance, and the unassigned fund balance. In the event the unrestricted fund balance is calculated to be less than the policy stipulates, the City shall plan to adjust budget resources in subsequent fiscal years to restore the balance. Appropriation of Unrestricted Fund Balance To reduce Unrestricted Fund Balance below 26 %, there must be council action to use this contingency amount. This I% is set aside in the Fund Balance to be used on emergency or unexpected expenditures to repair or replace vital city infrastructure that was not identified in the City's five year forecast. It can also be used to prevent the reduction in fund balance below 25% at the onset of a recession. Once the recession has been identified the City will take steps to match the annual budget with the slow down or reduction in revenues. Steps taken to prevent the further reduction in fund balance from a recession would be to freeze or delay hiring for new or vacant positions, delay new programs or projects, freeze wages, and reduce or eliminate services, including wage reductions and layoffs. Any reduction or elimination of services would be looked at strategically for levels of utilization by the citizens and alignment with the City's Policy Values. The goal would be to adjust the budget and services enough to prevent further reduction in fund balance. To reduce the Unrestricted Fund Balance below 25 %, the Mayor must declare an emergency. The funds would be used to provide rescue operations and relief efforts and could be reimbursed by the State or Federal governments but would need to be fronted by the City. If the disaster causes significant reduction in city revenues, the fund balance could be reduced below 25% to provide funding to maintain city services at their pre- disaster levels. The fund balance could be used this way until revenues recover enough to sustain city services on their own or until it is determined the negative impact is much longer lasting, prompting a review of service levels to match the updated operational revenue without use of fund balance. Replenishment of Fund Balance Reserves If unrestricted fund balance falls below 26% or if it is anticipated that at the completion of any fiscal year the projected fund balance will be less than the minimum requirement, the City Manager shall prepare and submit a plan to City Council to restore the target required CHIENT OGDMMUNITY PPORTUNFTY CITY OF SCHERTZ FINANCIAL POLICY level. The plan shall detail the steps necessary for the replenishment of fund balance as well as an estimated timeline for achieving such, not to exceed five years. Order of Expenditure of Funds When multiple categories of fund balance are available for expenditure, the City will start with the most restricted category and spend those funds first before moving down to the next category with available funds. Accumulation and Use of Fund Balance The unrestricted fund balance will be allowed to accumulate above the 26% target to accommodate irregular capital or operating expenses identified in the five -year budget forecast or capital improvements plan that cannot be covered with annual revenue sources during one fiscal year without a reduction in fund balance. City Council will be made aware of the specific known expenditures or projects that are expected to cause a reduction in fund balance as part of the budget process and will approve the accumulation of unrestricted revenues above the 26% target. If there is an unexpected increase in the unrestricted fund balance during the current fiscal year, those funds will be used in the following fiscal year to enhance the city's operations or reduce the tax rate as approved by City Council during the budget process. Monitoring and Reporting The Finance Director shall be responsible for monitoring and reporting the City's reserve balances. The City Manager is directed to make recommendations to the Council on the use of reserve funds both as an element of the annual operating budget submission and from time to time throughout the fiscal year as needs may arise. Compliance with the provisions of the policy shall be reviewed as a part of the annual operating budget adoption process and subsequent review will be included in the annual audit and financial statement preparation procedures. Fund Equity Policy Minimum Unrestricted Fund Equity The City's goal is to achieve and maintain an unrestricted fund balance in the Water & Sewer Funds, the Drainage Fund, and the EMS Fund equal to 26% of budgeted operating expenditures. In the event that the unrestricted fund equity is calculated to be less than the policy stipulates, the City shall plan to adjust budget resources in subsequent fiscal years to restore the balance. CHIENT OGDMMUNITY PPORTUNFTY CITY OF SCHERTZ FINANCIAL POLICY Replenishment of Minimum Fund Equity Reserves If unrestricted fund equity falls below 26% or if it is anticipated that at the completion of any fiscal year the projected fund balance will be less than the minimum requirement, the City Manager shall prepare and submit a plan to City Council to restore the minimum required level. The plan shall detail the steps necessary for the replenishment of fund balance as well as an estimated timeline for achieving such. Agenda Item No. 7 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 Department: EMS Subject: Resolution No. 17-R-72 - Interlocal Agreement with Alamo Heights for EMS Billing Services BACKGROUND In August of 2012, . the EMS department was contacted by the Alamo Heights Fire Department regarding EMS Billing. Alamo Heights Fire Department provides EMS transport services for their City as well as the cities of Terrell Hills and Olmos Park. The City entered into a five -year contract with the City of Alamo Heights to provide Billing Services. This contract expires on September 30, 2017. The EMS Department has been successful in providing Alamo Heights with Billing Services and there is interest by both city staff in continuing to provide Billing Services to the City of Alamo Heights. FISCAL IMPACT Based upon the time required and the cost of our billing staff, Alamo Heights has agreed to increase the compensation to Schertz EMS from the previous agreement of 8% to the new rate of 9% of the total dollars collected. Based upon historical collections for Alamo Heights, this would equate to approximately $21,000 annually. Being compensated on a percentage of collections provides an incentive to our billing staff as the more dollars we collect for Alamo Heights, the higher our compensation. This billing fee would be collected every month based upon the collections of that month and is a source of additional revenue for the EMS Department. Staff recommends City Council authorize the City Manager to enter into an inter -local agreement with the City of Alamo Heights for the provision of EMS Billing Services to be compensated at 9% of the total dollars collected. This will be a one -year agreement with four one -year automatic "renewal periods" that are effective unless either party terminates the agreement. ATTACHMENTS Resolution No. 17 -R -72 Agreement RESOLUTION NO. 17 -R -72 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING THE CITY MANAGER TO ENTER INTO AN INTERLOCAL AGREEMENT FOR EMS BILLING SERVICES WITH THE CITY OF ALAMO HEIGHTS, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City enter into an interlocal agreement to provide EMS Billing Services for the City of Alamo Heights, a political subdivision of the State of Texas ( "Alamo Heights "); and WHEREAS, the City Council has determined that it is in the best interest of the City to contract with Alamo Heights pursuant to the Interlocal Agreement for EMS Billing Services attached hereto as Exhibit A (the "Agreement "). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS : F.174 II Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with Alamo Heights in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which. this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. 50234811.1 PASSED AND ADOPTED, this 29th day of August, 2017. CITY OF SCHERTZ, TEXAS Mayor Carpenter ATTEST: City Secretary (CITY SEAL) 50234811.1 EXHIBIT A INTERLOCAL AGREEMENT FOR EMS BILLING SERVICES 50234811.1 A-] INTERLOCAL AGREEMENT FOR EMS BILLING STATE OF TEXAS COUNTY OF BEXAR This lnterlocal Agreement for EMS Billing (the "Agreement ") is entered into as of the date of the last signature (the "Effective Date ") by and between the CITY OF ALAMO HEIGHTS, TEXAS ( "Alamo Heights ") and the CITY OF SCHERTZ, TEXAS ( "Schertz ", and collectively with Alamo Heights, the "Parties" and each a "Party "). WHEREAS, Section 791.001 et seq. of the Texas Government Code authorizes municipalities to enter into interlocal agreements for the performance of governmental functions and services, and it is the desire of the named cities to enter into such an agreement; and WHEREAS, Alamo Heights and Schertz each perform EMS services; and WHEREAS, Alamo Heights desires to engage Schertz to perform EMS billing services for Alamo Heights, and Schertz desires to accept such engagement upon the terms and conditions contained herein. NOW THEREFORE, for the covenants and conditions set forth herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: I. TERM 1. Alamo Heights hereby engages Schertz to perform EMS billing services for Alamo Heights commencing on October 1, 2017 and continuing through September 30, 2018 ( "Term "). 2. This Agreement shall automatically renew on October 1, 2018 . and each October 1st after that until September 30, 2022 (each a "Renewal Period ") unless either Party furnishes at least ninety (90) days written notice to the other Party of its intention to terminate this Agreement. 1. During the term of this Agreement, Schertz agrees to provide EMS billing services to Alamo Heights for all ambulance responses that Alamo Heights has charges for. 2. Schertz agrees to process claims as soon as all necessary information is received from Alamo Heights and from the customer or the customer's agent who received the EMS service. This information included, but is not limited to, the completed electronic Patient Care Report, insurance information, hospital face sheet and traffic accident reports. 20170725 - Alamo Heights ILA for EMS Billing Page 1 of 7 3. Schertz will work with Alamo Height's electronic charting vendor to make sure that all charts are received as soon as possible after they are completed. Schertz agrees to use commercially reasonable efforts to work with the charting vendor to arrange for the completed electronic charts to be sent to Schertz no later than two (2) business days after the chart is completed by Alamo Heights. 4. Schertz will work with Alamo Heights to establish a dispatch protocol system agreed to by the Alamo Heights Fire Chief and/or his designee in conjunction with the Alamo Heights Police Chief and/or his designee that is necessary for properly establishing correct billing levels. 5. Schertz agrees to utilize the services of a mutually agreed upon electronic data exchange clearinghouse to the extent possible to electronically process all insurance claims including those of governmental providers. 6. Schertz shall use generally acceptable medical billing practices in the processing of all Alamo Heights claims. This includes following the recommendations on ambulance billing from the American Ambulance Association and utilizing certified Ambulance Coders on each claim. 7. Schertz will randomly audit claims to governmental payers for medical necessity and appropriate coding based upon such necessity and the care provided. Audit Claims Reports will be provided to the Alamo Heights Fire Chief within ten (10) days of the audit. 8. Schertz will maintain any and all Alamo Heights patient records in electronic format only. These records will be available to Alamo Heights at any time during normal business hours. 9. Schertz will annually perform EMS Continuing Education Training for Alamo Heights EMS personnel that includes medical necessity, proper documentation, HIPAA and patient privacy, and Patient Care Report completeness. Training schedules will be established to prohibit overtime/compensation time for Alamo Heights Fire personnel. 10. Schertz will, to the extent possible, close out all Alamo Heights billing activities for a calendar month by the 10th of each following month. Upon this closing, Schertz will electronically deliver a set of closing reports that includes listing of charges, credits and claims outstanding. 11. Schertz; agrees to follow all Alamo Heights billing and collection policies. When questions or concerns arise with these policies, Schertz will consult with the Alamo Heights Fire Chief, or his designee, to resolve these questions. Schertz reserves the right to not follow any policy that Schertz believes is non-compliant with Federal or State laws, regulations or guidelines. 12. Schertz agrees to rigorously protect the privacy and confidentiality of all medical records and information contained in the billing records furnished to Schertz by Alamo Heights for the services to be provided hereunder. Schertz shall comply with all federal and state laws and regulations applicable to medical records and information. 20170725 - Alamo Heights ILA for EMS Billing Page 2 of 7 1.3. Schertz agrees, to the extent permitted by law, to indemnify Alamo Heights for the actions of its employees, but only to the extent directly related to this Agreement. III. RESPONSIBILITIES OF ALAMO HEIGHTS 1. Alamo Heights agrees to provide all patient care records and billing information to Schertz as soon as possible after the service is provided. Alamo Heights will work with Schertz to develop processes for the delivery of non - electronic records to include hospital face sheets, insurance cards, and law enforcement accident reports. 2. Alamo Heights agrees to provide a charge list to Schertz for all services and supplies for which Alamo Heights desires billing to be provided. Alamo Heights will provide any changes to these charges to Schertz with a minimum of thirty (30) days' notice before they become effective. 3. Alamo Heights agrees to utilize "close call rules" as defined by S.T.R.A.C, and patient care report quality assurance processes to make their patient care reports as complete as possible. This includes proper addresses, social security information, insurance information, workers compensation information, patient signatures authorizing billing of their insurance, and completion of certain interventions that affect the level of service that can be billed. 4. Alamo Heights agrees to notify Schertz of all funds received directly to Alamo Heights as a result of the billing activities of Schertz for proper accounting of these payments. Alamo Heights also agrees to designate a person or people at Alamo Heights that will take payments from customers in person. Schertz will train these individuals on how to account for these payments with Schertz. 5. Alamo Heights agrees that it maintains full and final authority on compliance in billing practices in regard to its Centers for Medicaid and Medicare Services (CMS) National Provider Identification Number, Medicare provider number and Medicaid provider number. Alamo Heights will have full access to all of its records maintained by Schertz to accomplish this compliance. 6. Alamo Heights will designate both a Privacy Officer for all HIPAA related issues and Custodian of Records for all EMS and Billing Records. 7. Alamo Heights agrees to work with Schertz to establish processes for the receipt of law enforcement traffic accident reports. 8. On or before the last day of a month, Alamo Heights will report to Schertz the number of EMS responses and patient care records that should have been received that month. If patient care records are missing, Alamo Heights will work with Schertz to locate these reports and get them completed as soon as possible. 20170725 - Alamo Heights ILA for EMS Billing Page 3 of 7 9. Alamo Heights will receive monthly reports to include charges processed, credits received, contractual allowables, and all outstanding accounts receivables. Alamo Heights can request additional reports. If the requested reports are available in the Schertz billing system, they will be provided by the next business day at the latest. If it is a custom report that is not available, Alamo Heights agrees to pay the cost of having this report built. If the report will be beneficial to both Alamo Heights and Schertz and Schertz approves the charge, this cost will be split between the two Parties. 10. Alamo Heights agrees, to the extent permitted by law, to indemnify Schertz for actions taken by Schertz when following the policies, procedures and duly communicated directives of Alamo Heights. IV. CONSIDERATION For its performances of such billing services, Alamo Heights shall pay to Schertz nine percent (9 %) of the total collections received. Said collection fee shall be deducted by Schertz from its monthly payment to Alamo Heights of any funds collected by Schertz. If the amount collected by Schertz for Alamo Heights does not exceed the monthly fee, Schertz will invoice Alamo Heights for the balance of the fee. Schertz shall remit its collections for Alamo Heights EMS monthly within five (5) days after the end of each calendar month. Alamo Heights will pay any invoices within twenty (20) days of receipt. V. TERMINATION 1. If Alamo Heights or Schertz determines it no longer wants to maintain this Agreement at the end of the initial Term or any subsequent Renewal Period, the Party wishing to terminate this Agreement shall provide written notice of the intent to terminate this Agreement not less than ninety (90) days from the end of the applicable Term or Renewal. Period. 2. If at any time during this Agreement, either Party determines that the other Party is operating in a non - compliant manner, the concerned Party shall give written notice of the issue(s) of concern. The other :Party shall have up to thirty (30) days to either correct this concern or to provide written justification and authority to be operating in the manner that is concerning. If this resolution does not abate the concerns of the first Party, that Party may terminate this Agreement by providing at least ten (10) business days' written notice. 3. If and when this Agreement is terminated for any reason, Schertz agrees to provide all Alamo Heights billing records in its possession to Alamo Heights electronically within ten (1.0) business days of the termination date. 4. If this Agreement is terminated upon the end of the Term or a Renewal Period, Schertz will complete all billing processes in progress as of the last day of this Agreement. This work will be continued for up to thirty (30) days after this Agreement is over. Alamo Heights agrees to compensate Schertz for this activity in accordance with Section IV of this Agreement. 20170725 - Alamo Heights ILA for EMS Billing Page 4 of 7 VI. BINDING EFFECT; BENEFITING PARTIES I. This Agreement shall bind and benefit the respective Parties and their legal successors, but shall not otherwise be assignable, in whole or in part, by either Party without first obtaining the written consent of the other Party. 2. This Agreement inures to the benefit of and obligates only the Parties. No term or provision of this Agreement shall benefit or obligate any person or entity not a Party to the Agreement. The Parties shall cooperate fully in opposing any attempt by any third person or entity to claim any benefit, protection, release, or other consideration under this Agreement. VII. GOVERNMENTAL FUNCTIONS; LIABILITY; NO WAIVER OF IMMUNITY OR DEFENSES I . Notwithstanding any provision to the contrary herein, this Agreement is a contract for and with respect to the performance of governmental functions by governmental entities. 2. The services provided for herein are governmental functions, and Schertz and Alamo Heights shall be engaged in the conduct of a governmental function while providing and /or performing any service pursuant to this Agreement. 3. The relationship of Alamo Heights and Schertz shall, with respect to that part of any service or function undertaken as a result of or pursuant to this Agreement, be that of independent contractors. 4. Nothing contained herein shall be deemed or construed by the Parties, or by any third party, as creating the relationship of principal and agent, partners, joint venturers, or any other similar such relationship between the Parties. 5. Each Party reserves and does not waive any defense available to it at law or in equity as to any claim or cause of action whatsoever that may arise or result from or in connection with this Agreement. This Agreement shall not be interpreted nor construed to give to any third party the right to any claim or cause of action, and neither Schertz nor Alamo Heights shall be held legally liable for any claim or cause of action arising pursuant to or in connection with this Agreement except as specifically provided herein or by law. 6. Neither Party waives or relinquishes any immunity or defense on behalf of itself, its trustees, councilmembers, officers, employees, and agents as a result of the execution of this Agreement and the performance of the covenants and agreements contained herein. VIII. NOTICES All correspondence and communications concerning this Agreement shall be directed to: 20170725 - Alamo Heights ILA for EMS Billing Page 5 of 7 Schertz: City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager Alamo Heights: City of Alamo Heights 6116 Broadway Alamo Heights, Texas 78209 Attention: City Manager Notices required hereunder shall be hand - delivered or sent by prepaid certified mail, return receipt requested. IX. AUTHORIZATION Each Party represents to the other Party that this Agreement has been duly authorized by that Party's governing body. If any portion of this Agreement shall be declared illegal or held unenforceable for any reason, the remaining portions hereof shall continue in full force and effect to the extent that it does not destroy the benefit of the bargain. XI. ENTIRE AGREEMENT; AMENDMENTS This Agreement represents the complete understanding of Alamo Heights and Schertz with respect to the matters described herein and supersedes any prior understanding or written or oral agreement regarding the subject matter hereof, and this Agreement may not be amended or altered without the written consent of both the Parties. XII. GOVERNING LAW This Agreement shall be governed by the laws of the State of Texas without regard to choice of law principles that would require the application of the law of another jurisdiction, and venue for any legal proceedings hereunder shall be in the state courts of Bexar County, Texas. [Signatures on the following page] 20170725 - Alamo Heights ILA for EMS Billing Page 6 of 7 SIGNATURE PAGE TO INTERLOCAL AGREEMENT FOR EMS BILLING In witness whereof, the undersigned Parties have executed this Agreement on the date specified to be effective as of the Effective Date. CITY OF SCHERTZ By: Name: John C. Kessel. Title: City Manager Date: CITY OF ALAMO HEIGHTS By: Name: Mark Browne Title: City Manager Date: 20170725 - Alamo Heights ILA for EMS Billing Page 7 of 7 MEMORANDUM City Council Meeting: Department: Subject: BACKGROUND Agenda No. 8 August 29, 2017 Economic Development Resolution No. 17 -R -74 Authorize the expenditures for the Economic Development Performance Agreement. Ace Mart Restaurant Supply Company (Ace Mart) is headquartered in San Antonio and specializes in the foodservice and equipment supplies industry. Ace Mart began in 1975 in a small building in downtown San Antonio and has grown to 17 warehouse showrooms throughout Texas. As Ace Mart continues to grow, they seek to establish operations at 9850 Doerr Lane in the approximately 21.5,000 square feet of space. The Schertz facility will become the company's primary distribution hub serving each of its 17 locations and growing online sales division. ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT The City of Schertz Economic Development Corporation (SEDC) seeks to provide an economic development incentive to Ace Mart to relocate and expand its transportation and warehousing operations to Schertz. The proposed agreement is in accordance with the City of Schertz Incentive Policy. Under the Economic Development Performance Agreement, Ace Mart will receive an Operations Grant worth $225,000 and six Annual Grants worth a portion of the total personal property taxes paid to the City of Schertz. Additionally, Ace Mart may receive an additional grant if they elect to purchase the Schertz facility. To qualify for the incentive, Ace Mart must execute their lease by September 1, 2017; commence operations by April 1, 2018; create and maintain 40 full time jobs; create an annual payroll of $1,178,750; maintain a minimum personal property of $5,671,160, plus 7% annual growth; and maintain a minimum of $8 million in sales tax collected by the City of Schertz for a period of six years as dictated in the performance agreement. FISCAL IMPACT The incentive will be paid through SEDC funds, no city - general funds will be used for the project. The SEDC incentive package is worth approximately $400,000 and will provide a net benefit in tax collections of approximately $1.7 million for the City of Schertz. In the event that Ace Mart fails to comply with the agreement, Ace Mart will be required to repay the incentive as dictated in the performance agreement. SEDC BOARD RECOMMENDATION The SEDC Board of Directors met on August 24, 2017 at their regular board meeting to consider, discuss and act on the Economic Development Performance Agreement with Ace Mart Supply Company, a motion was made by Ms. Chain. Seconded by Mr. Richard to approve the Economic Development Performance Agreement and recommend that City Council authorize the associated expenditures. SUMMARY OF RECOMMEDED ACTION To authorize the SEDC funds for the Economic Development Performance Agreement with Ace Mart through the approval of Resolution No. 17 -R -74. ATTACHMENT(S) Resolution No. 17 -R -74 Economic Development Performance Agreement (Ace Mart Restaurant Supply Company) IN 11 a vmzffixflllniz� WHEREAS, the Development Corporation Act of 1979, as amended (Section 50 1.001 Texas Local Government Code, formerly the Development Corporation Act of 1979) (the "Act"', authorizes a development corporation to fund certain projects as defined by the Act and requires development corporations to enter into performance agreements to establish and provide for the direct incentive or make an expenditure on behalf of a business enterprise under a project; and WHEREAS, the City of Schertz Economic Development Corporation ("SEDC") Board of Directors approved the Economic Development Performance Agreement for Ace Mart Restaurant Supply Co. set forth on Exhibit A attached hereto and incorporated herein (the "Agreement") between the SEDC, and Ace Mart Restaurant Supply Co. (the "Company"), pursuant to the Act, at the SEDC's Board of Directors meeting on August 24, 2017; and WHEREAS, Section 501.073 of the Act requires that the corporation's authorizing unit to approve all programs and expenditures of a corporation; and WHEREAS, the SEDC has recommended that the City authorize the program and expenditures associated therewith; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: Section 1. The City Council hereby authorizes the program and expenditures as provided for in the Economic Development Performance Agreement with Ace Mart Restaurant Supply Co. as set forth in Exhibit A. Section 2, The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. Michael R. Carpenter, Mayor 10,14MI'll ITFUMN09 W1 This Performance Agreement ( "Agreement ") is entered into to be effective as of the Effective Date (as defined in Article III below), by and between the City of Schertz Economic Development Corporation, located in Guadalupe County, Texas (hereinafter called "Corporation "), a Texas non -profit industrial development corporation under the Development Corporation Act and governed by TEX. Loc. Gov. CODE chapters 501, 502 and 505 and the Texas Non -Profit Corporation Act and Ace Mart Restaurant Supply Co., a Texas corporation (hereinafter called "Company "), otherwise known as the "Parties" to this Agreement. RECITALS WHEREAS, the Development Corporation Act of 1979, as amended (Section 501.001 et seq, Texas Local Government Code, formerly the Development Corporation Act of 1979) (the "Act') authorizes a development corporation to fund certain projects as defined by the Act and requires development corporations to enter into performance agreements to establish and provide for the direct incentive or make an expenditure on behalf of a business enterprise under a project; and WHEREAS, Section 501.158 of the Act requires a performance agreement to provide at a minimum for a schedule of additional payroll or jobs to be created or retained and capital investment to be made as consideration for any direct incentives provided or expenditures made by the corporation under the agreement and to specify the terms under which repayment must be made if the business enterprise does not meet the performance requirements specified in the agreement; and WHEREAS, Company desires to relocate and expand its transportation and warehousing operations to the Facility located in Schertz, Texas; and WHEREAS, the location of the Company, as proposed, will contribute to the economic development of the City of Schertz by creating new jobs and increased employment, promoting and developing expanded business enterprises, increased development, increased real property value and tax revenue for the City of Schertz, and will have both a direct and indirect positive overall improvement /stimulus in the local and state economy; and WHEREAS, the Corporation desires to offer an incentive to Company to enable Company to relocate and expand its operations pursuant to this Agreement in substantial conformity with the Schertz Incentive Policy and the Act; and WHEREAS, the Parties are executing and entering into this Agreement to set forth certain terms and obligations of the Parties with respect to such matters; and WHEREAS, the Parties recognize that all agreements of the Parties hereto and all terms and provisions hereof are subject to the laws of the State of Texas and all rules, regulations and interpretations of any agency or subdivision thereof at any time governing the subject matters hereof, and 1 WHEREAS, the Parties agree that all conditions precedent for this Agreement to become a binding agreement have occurred and been complied with, including all requirements pursuant to the Texas Open Meetings Act and all public notices and hearings; if any, have been conducted in accordance with Texas law; and WHEREAS, on the Effective Date, the commitments contained in this Agreement shall become legally binding obligations of the Parties. NOW, THEREFORE, in consideration of the mutual covenants, benefits and agreements described and contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and further described herein, the Parties agree as follows: ARTICLE I RECITALS 1. Recitals. The recitals set forth above are declared true and correct by the Parties and are hereby incorporated as part of this Agreement. ARTICLE II AUTHORITY AND TERM 1. Authority. The Corporation's execution of this Agreement is authorized by the Act and constitutes a valid and binding obligation of the Corporation. The Corporation acknowledges that Company is acting in reliance upon the Corporation's performance of its obligations under this Agreement in making the decision to commit substantial resources and money to the establishment of the Project, hereinafter established. 2. Term. This Agreement shall become enforceable upon the Effective Date, hereinafter established, and shall continue until the Expiration Date, hereinafter established, unless terminated sooner or extended by mutual agreement of the Parties in the manner provided for herein. 3. Purpose. The purpose of this Agreement is to formalize the agreements between the Company and the Corporation for the granting of funds to cover certain costs associated with the Project and specifically state the covenants, representations of the Parties, and the incentives associated with Company's commitment to abide by the provisions of the Act and to abide by the terms of this Agreement which has been approved by the Corporation and the Company as complying with the specific requirements of the Act. It is expressly agreed that this Agreement constitutes a single transaction. A failure to perform any obligation by the Company may constitute a breach of the entire Agreement and terminate any further commitments (if any) by the Corporation unless an alternative penalty or remedy is provided for herein. 4. Administration of Agreement. Upon the Effective Date, the Corporation delegates the administration and oversight of this Agreement to the Executive Director of the Corporation. Any proposed amendments to the Agreement shall require the approval of the Board of Directors of the Corporation. W DEFINITIONS As used in this Agreement, the following terms shall have the meanings ascribed below. All undefined terms shall retain their usual and customary meaning as ascribed by common and ordinary usage. "Annual Grant" shall mean the annual cash payment from the Corporation upon Company's submission and verification of the Annual Certification Report certifying their compliance to the conditions of this Agreement. "Annual Payroll" shall mean the total wages paid, exclusive of employee benefits, to Full - time Employees at the Facility. "Bankruptcy" shall mean the dissolution or termination of a Party's existence as a going business, insolvency, appointment of receiver for any party of such Party's property and such appointment is not terminated within ninety (90) days after such appointment is initially made, any general assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against such party and such proceeding is not dismissed within ninety (90) days after the filing thereof. "Calendar Year" shall mean January 1 through December 31. "Certificate of Occupancy" shall mean the signed certificate issued by the City of Schertz Inspections Division granting the Company the right to occupy the Facility and confirming that the entire work covered by the permit and plans are in place. "Default" unless otherwise specifically defined or limited by this Agreement shall mean failure by any Party to timely and substantially comply with any performance requirement, duty, or covenant. "Effective Date" shall be the date of the last signing by a party to the agreement. "Expiration Date" shall mean the earlier of: 1. December 31, 2024; or 2. The date of termination, provided for under Article VII of this Agreement. "Facility" shall mean the approximate 215,000 square foot facility located at 9850 Doerr Lane, Schertz, Texas 78154 where Company's transportation and warehousing operations shall occur. "Force Majeure" shall mean any contingency or cause beyond the reasonable control of a party, including, without limitation, acts of God or the public enemy, war riot, civil commotion, insurrection, government or de facto governmental action (unless caused by the intentionally wrongful acts or omissions of a party), fires, explosions or floods, strikes, slowdowns or work stoppages. "Full -time Employee" shall mean: (1) an employee with a regular work schedule of at least 36 hours per week as reported on the Texas Employers Quarterly Wage Report from the Texas Workforce Commission and (2) are entitled to at least the customary employer- sponsored employee benefits package afforded by the Company to its similarly situated employees at other locations. "Operations Grant" shall mean the cash payment from Corporation upon Company receiving their Certificate of Occupancy and commencing operations in Schertz in the amount of TWO HUNDRED TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($225,000.00). "Project" shall mean the relocation and expansion of Company's transportation and warehousing operations to the Facility. "Real Property" shall mean the land, building and all improvements thereto and added to the Project subsequent to the execution of this Agreement and is accounted on the tax rolls by the County Appraisal District. "Sales Tax Collections" means the amount of sales and use tax revenues attributable from Company collected by the Texas Comptroller of Public Accounts and paid to and actually received by the City of Schertz. Sales Tax Collections shall be collected under a State sales tax permit separate and distinct from Company's existing physical retail sales locations in Texas. "State of Texas" shall mean the Office of the Texas Comptroller, or its successor. "Tangible Personal Property" shall mean tangible personal property, equipment, machinery, fixtures and inventory owned or leased by Company that is added to the :Project subsequent to the execution of this Agreement and is accounted on the tax rolls by the County Appraisal District. ARTICLE IV CORPORATION OBLIGATION 1. Operations Grant. Subject to the satisfaction of all the terms and conditions of this Agreement and the obligation of Company to repay the Operations Grant pursuant to Article VIII hereof, the Corporation agrees to provide Company with an Operations Grant in the amount of TWO HUNDRED TWENTY -FIVE THOUSAND DOLLARS and NO /100 DOLLARS ($225,000.00). 2. Annual Grant. Subject to the satisfaction of all the terms and conditions of this Agreement, the Corporation agrees to provide six (6) Annual Grants equal to a percentage of the actual taxes paid for the City of Schertz for all Tangible Personal Property according to the following schedule: M (a) SIXTY PERCENT (60 %) for the 2019 Calendar Year (b) SIXTY PERCENT (60 %) for the 2020 Calendar Year (c) SIXTY PERCENT (60 %) for the 2021 Calendar Year (d) FIFTY -FIVE PERCENT (55 %) for the 2022 Calendar Year (e) FIFTY -FIVE PERCENT (55 %) for the 2023 Calendar Year (f) FIFTY -FIVE PERCENT (55 %) for the 2024 Calendar Year 3. Ownership Grant. Subject to the satisfaction of all the terms and conditions of the Agreement. The SEDC agrees to provide a grant in the amount of SIXTY -EIGHT THOUSAND DOLLAS AND NO /100 DOLLARS ($68,000.00) following the receipt of the final Annual Certification report on February 15, 2025 so long as both of the following conditions are met: (a) Company is unable to secure an incentive from Comal County; and (b) Company has purchased the Facility and maintained continual operations throughout the term of the Agreement. 4. Current Revenue. The funds distributed hereunder shall be paid solely from lawfully available funds of the Corporation. Under no circumstances shall the obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. None of the obligations under this Agreement shall be pledged or otherwise encumbered in favor of any commercial lender and/or similar financial institution. 5. Confidentiality. The Corporation agrees to the extent allowed by law, to keep all tax information and documentation received, pursuant to this Agreement hereof, confidential. In the event a request is made for such information, Corporation will not disclose the information unless required to do so by the Attorney General of Texas. ARTICLE V PERFORMANCE OBLIGATIONS OF COMPANY The obligation of the Corporation to pay funds in the form of an Operations Grant, Annual Grant and Ownership Grant shall be conditioned upon Company's continued compliance with and satisfaction of each of the performance obligations set forth in this Agreement. 1. Commencing Operations. Company must obtain a Certificate of Occupancy, for its transportation and warehousing operations at the Facility on or before April 1, 2018 and maintain said operations throughout the term of this Agreement. 2. Execution of Lease. Company must execute a lease (the "Lease ") for the Facility with HPI Real Estate Services & Investments, LLC (the "Landlord ") by September 1, 2017. The Company shall provide to the Corporation a copy of the fully executed Lease (signed by both Company and the Landlord) as proof of the satisfaction of this condition. In the event that Company fails to deliver the fully executed Lease by on September 1, 2017 such failure shall not be deemed a Default, but this Agreement shall automatically terminate and be of no further effect unless the Parties agree in writing to extend the time period for delivery of the fully executed Lease to the Corporation. 5 3. Job and Wage Creation. Company must create and maintain the Full -time Employees and minimum Annual Payroll benchmarks according to the following schedule: (a) FORTY (40) Full -time Employees for that portion of the 2018 Calendar Year beginning upon its receipt of a Certificate of Occupancy. (b) FORTY (40) Full -time Employees with a minimum Annual Payroll of ONE MILLION ONE HUNDRED SEVENTY -EIGHT THOUSAND SEVEN HUNDRED FIFTY AND NO /100 DOLLARS ($1,178,750.00) on or before the beginning and throughout the entirety of the 2019 Calendar Year and continuing throughout the term of the Agreement. 4. Tangible Persona] Property Creation. Company must create and maintain minimum Tangible Personal Property benchmarks according to the following schedule: (a) FIVE MILLION SIX HUNDRED SEVENTY -ONE THOUSAND ONE HUNDRED SIXTY AND NO /100 DOLLARS ($5,671,160.00) Tangible Personal Property taxable value as identified on the 2019 Comal County tax roll. (b) SIX MILLION SIXTY -EIGHT THOUSAND ONE HUNDRED FOURTY -ONE AND NO /100 DOLLARS ($6,068,141.00) Tangible Personal Property taxable value as identified on the 2020 Coma] County tax roll. (c) SIX MILLION FOUR HUNDRED N1NEY -TWO THOUSAND NINE HUNDRED ELEVEN AND NO /100 DOLLARS ($6,492,911.00) Tangible Personal Property taxable value as identified on the 2021 Comal County tax roll. (d) SIX MILLION NINE HUNDRED FOURTY -SEVEN THOUSAND FOUR HUNDRED FIFTEEN AND NO /100 DOLLARS ($6,947,415.00) Tangible Personal Property taxable value as identified on the 2022 Comal County tax roll. (e) SEVEN MILLION FOUR HUNDRED THRITY -THREE THOUSAND SEVEN HUNDRED THRITY -FOUR AND NO /100 DOLLARS ($7,433,734.00) Tangible Personal Property taxable value as identified on the 2023 Comal County tax roll. (f) SEVEN MILLION NINE HUNDRED FIFTY -FOUR THOUSAND NINETY -FIVE AND NO/ 100 DOLLARS ($7,954,095.00) Tangible Personal Property taxable value as identified on the 2024 Coma] County tax roll. 5. Sales Tax Creation. Commencing in the 2019 calendar year and continuing throughout the term of the Agreement, the Company must create and maintain a minimum of EIGHT MILLION AND NO/] 00 DOLLARS ($8,000,000.00) in Sales Tax Collections sourced from the Facility. 6. Annual Report. The Company shall submit an Annual. Certification Report (an "Annual Report") for the preceding Calendar Year to the Executive Director of the Corporation each year not later than February 15th. The Annual Report should substantially conform to the Annual Report Form attached as Exhibit A to this Agreement. The first Annual Report will be due February 15 1h 2019. 7. Payment of Legal Fees. Company commits to reimburse the Corporation for the necessary legal fees in the preparation of any amendment to this Agreement requested by Company. Timely payment shall be made within 60 days of submittal of invoice to Company by 0 the Corporation or its assigns. Each Party shall bear its own legal fees in connection with the negotiation of this Agreement. 8. Extension beyond Term. In recognition of the fact that the verification of Company's compliance hereunder is, by necessity, verified in the calendar year following the Company's obligations herein, the Expiration Date of this Agreement will be extended until any and all verification of performance obligations and covenants have been satisfied. The Parties hereto agree that the Corporation's right to the Recapture Amount shall survive the Expiration Date of this Agreement. ARTICLE VI COVENANTS AND DUTIES 1. Company's Covenants and Duties. Company makes the following covenants and warranties to the Corporation, and agrees to timely and fully perform the obligations and duties contained in Article V of this Agreement. Any false or substantially misleading statements contained herein or failure to timely and fully perform those obligations and duties within this Agreement shall be an act of Default by the Company. (a) Company is authorized to do business and is in good standing in the State of Texas and shall remain in good standing in the State of Texas and the United States of America during any term of this Agreement. (b) The execution of this Agreement has been duly authorized by Company's authorized agent, and the individual signing this Agreement is empowered to execute such Agreement and bind the entity. Said authorization, signing, and binding effect is not in contravention of any law, rule, regulation, or of the provisions of Company's by -laws, or of any agreement or instrument to which Company is a party to or by which it may be bound. (c) Company is not a party to any Bankruptcy proceedings currently pending or contemplated, and Company has not been informed of any potential involuntary Bankruptcy proceedings. (d) To its current, actual knowledge, and subject to the Certificate of Occupancy (or other approvals and permits to be obtained under subpart (f) immediately below), Company has acquired and maintained all necessary rights, licenses, permits, and authority to carry on its business in the City of Schertz and will continue to use its best efforts to maintain all necessary rights, licenses, permits, and authority. (e) Company shall timely and fully comply with all of the terms and conditions of this Agreement. (f) Company agrees to obtain or cause to be obtained, all necessary permits and approvals from City of Schertz and/or all other governmental agencies having jurisdiction over the construction of any improvements to the Facility. (g) Company shall be responsible for paying, or causing to be paid, to City of Schertz and all other governmental agencies the cost of all applicable permit fees and licenses required for construction of the Project. Company agrees to develop 0 the Project in accordance with the ordinances, rules, and regulations of the City of Schertz in effect on the date the Project was designated, unless specified otherwise in this Agreement. Company, in its sole discretion, may choose to comply with any or all City of Schertz rules promulgated after the Effective Date of this Agreement. (h) Company agrees to commence and complete the Project in strict accordance with the Agreement. (i) Company shall cooperate with the Corporation in providing all necessary information to assist them in complying with this Agreement. 0) During the term of this Agreement, Company agrees to not knowingly employ any undocumented workers as part of the Project, and, if convicted of a violation under 8 U.S.C. Section 1324a(1), Company shall be in Default (subject to the remedies in Article V above). Company is not liable for an unknown violation of this Section by a subsidiary, affiliate, or franchisee of Company or by a person with whom Company contracts provided however that identical federal law requirements provided for herein shall be included as part of any agreement or contract which Company enters into with any subsidiary, assignee, affiliate, or franchisee for which the Operations Grant and Annual Grant provided herein will be used. (k) Company shall be not be in arrears and shall be current in the payment of all City taxes and fees. (1) Corporation has the right to periodically (and with reasonable advance notice) verify the terms and conditions of this Agreement including, but not limited to, the number of persons employed by Company as a result of the assistance provided hereunder, the addresses of those persons, the number of hours each employee worked during the previous 12 months, the total expenses attributable to training and employing those employees, and the cumulative payroll for Company's Schertz operation. (m) Company shall, upon written request from Corporation, provide to Corporation a copy of the Texas Workforce Commission Texas Employers Quarterly Wage Report for the requested quarter. (n) Company shall provide Corporation all necessary information to verify the amount of Sales Tax Collections sourced from the Facility, or authorize the Corporation to receive said information from the State Comptroller or City of Schertz. 2. Corporation's Covenants and Duties. (a) Operations Grant Payment. The Corporation is obligated to pay Company an Operations Grant in the amount of TWO HUNDRED TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($225,000.00). The Operations Grant shall be paid within thirty (30) days after receiving written notice from the Company that they have received a Certificate of Occupancy, a copy of said Certificate of Occupancy to be attached to the written notice, and certification that Company has commenced operations at the Facility. (b) Annual Grant Pam. The Corporation is obligated to pay Company SIX (6) Annual Grants according to the schedule in Article IV Section 2. The Annual Grants shall be paid within forty -five (45) days after receiving the Annual Certification Report and verification that all City taxes have been paid and all other mandatory benchmarks have been met and /or maintained. (c) Ownership Grant Payment. The Corporation is obligated to pay Company an Ownership Grant of SIXTY -EIGHT THOUSAND DOLLARS AND NO /1.00 DOLLARS ($68,000.00) in accordance with Article 4 Section 3 if Company is unable to receive any grant funding from Comal County, and has purchased the Facility, and has complied with all of the terms and conditions of the Agreement. 3. Compliance and Default. Failure by Company to timely comply with any performance requirement, duty, or covenant shall be considered an act of Default and shall give the Corporation the right to terminate this Agreement and collect the Recapture Amount, as determined by the Board of Directors of the Corporation. ARTICLE VII TERMINATION 1. Termination. This Agreement shall terminate upon the earliest occurrence of any one or more of the following: (a) The written agreement of the Parties; (b) The Agreement's Expiration Date; (c) Default by Company (at the option of the Corporation). ARTICLE VIII DEFAULT 1. Company Events of Default (a) Failure of Company to perform any term, covenant or agreement contained in this Agreement, or in any related document(s); or (b) Corporation determines that any representation or warranty contained herein or in any financial statement, certificate, report or opinion submitted to Corporation in connection with or pursuant to the requirements of this Agreement was incorrect or misleading in any material respect when made; or (c) Any judgment is assessed against Company or any attachment or other levy against the property of Company with respect to a claim remains unpaid, unstayed on appeal, undischarged, not bonded or not dismissed for a period of thirty (30) days; or (d) Company makes an assignment for the benefit of creditors; admits in writing its inability to pay its debts generally as they become due; files a petition in bankruptcy; 0 is adjudicated insolvent or bankrupt; petitions or applies to any tribunal for any receiver or any trustee of Company or any substantial part of its property, commences any action relating to Company under any reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction whether now or hereafter in effect; or if there is commenced against Company any such action and such action remains undismissed or unanswered for a period of sixty (60) days from such filing, or Company by any act indicates its consent to or approval of any trustee of Company or any substantial part of its property; or suffers any such receivership or trustee to and such appointment remains unvacated for a period of sixty (60) days; or (e) Company substantially changes its present ownership without written notification to Corporation within thirty (30) days of such change; or (f) Company changes the general character of business as conducted at the date hereof, or engages in any type of business not reasonably related to its business as presently and normally conducted. 2. Corporation Events of Default (a) Corporation materially fails to fulfill an obligation set forth within the terms and conditions of the Agreement. 3. Remedies for Default (a) Company's sole remedy under this Agreement is specific performance for Corporation's Default of its obligation under Section IV of this Agreement. (b) In the event of Default by the Company the Corporation shall, as its sole and exclusive remedy for Default hereunder, have the right to terminate this Agreement, discontinue the Annual Grant payments for the year of Default and any remaining years, and to recapture one hundred percent (100 %) of the Operations Grant if the Default occurs on or prior to December 31, 2022 and fifty percent (50 %) of the Operations Grant if the Default occurs after January 1, 2023 or prior to December 31, 2024 (the "Recapture Amount "). The Recaptured Amount shall be paid by the Company within one hundred twenty (120) days after the date Company is notified by the Corporation of such Default (the "Payment Date "). In the event the Recaptured Amount is not repaid by the applicable Payment Date, the unpaid portion thereof shall accrue interest at the rate of two percent (2.00 %) per annum from the Effective Date until paid in full. 4. Limitation on Use of Funds in the Event of Default (a) Under no circumstances will the funds received under this Agreement be used, either directly or indirectly, to pay costs or attorney fees incurred in any adversarial proceeding regarding this Agreement against the City of Schertz or the Corporation. 1.0 ARTICLE IX MISCELLANEOUS 1. Binding Agreement. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the Parties, and their respective successors and assigns. The Executive Director of the Corporation shall be responsible for the administration of this Agreement and shall have the authority to execute any instruments, duly approved by the Corporation, on behalf of the Parties related thereto. Notwithstanding any other provision of this Agreement to the contrary, performance of either Party under this Agreement is specifically contingent on Company obtaining a Certificate of Occupancy from the City of Schertz at the Facility under the terms of this Agreement. 2. Mutual Assistance. The Parties will do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out such terms and provisions. 3. Representations and Warranties. The Corporation represents and warrants to Company that this Agreement is within their authority, and that they are duly authorized and empowered to enter into this Agreement, unless otherwise ordered by a court of competent jurisdiction. Company represents and warrants to the Corporation that it has the requisite authority to enter into this Agreement. 4. Assignment. Company shall have the right to assign all of its rights, duties, and obligations under this Agreement to a duly qualified third party with prior written approval of the Corporation. Any assignment provided for herein shall not serve to enlarge or diminish the obligations and requirements of this Agreement, nor shall they relieve Company of any liability to the Corporation including any required indemnity in the event that any Assignee hereof shall at any time be in Default of the terms of this Agreement. The Corporation may demand and receive adequate assurance of performance including the deposit or provision of financial security by any proposed Assignee prior to its approval of an assignment. 5. Independent Contractors. (a) It is expressly understood and agreed by all Parties hereto that in performing their services hereunder, Company at no time will be acting as an agent of the Corporation and that all consultants or contractors engaged by Company respectively will be independent contractors of Company; and nothing contained in this Agreement is intended by the Parties to create a partnership or joint venture between the Parties and any implication to the contrary is hereby expressly disavowed the Parties hereto understand and agree that the Corporation will not be liable for any claims that may be asserted by any third party occurring in connection with services performed by Company respectively under this Agreement, unless any such claims are due to the fault of the Corporation. (b) By entering into this Agreement, except as specifically set forth herein, the Parties do not waive, and shall not be deemed to have waived, any rights, immunities, or defenses either may have, including the defense of parties, and nothing contained herein shall ever be construed as a waiver of sovereign or official immunity by the Corporation with such rights being expressly reserved to the fullest extent authorized by law and to the same extent which existed prior to the execution hereof. (c) No employee of the Corporation, or any board member, or agent of the Corporation, shall be personally responsible for any liability arising under or growing out of this Agreement. 6. Notice. Any notice required or permitted to be delivered hereunder shall be deemed delivered by actual delivery, or on the first business day after depositing the same in the hands of a reputable overnight courier (such as United States Postal Service, FedEx or UPS) and addressed to the Party at the address set forth below: If intended for SEDC: City of Schertz Economic Development Corporation Attention: Exec. Dir. of Economic Development 1400 Schertz Parkway Schertz, TX 78154 With a copy to: Denton, Navarro, Rocha, & Bernal, PC Attention: Charles E. Zech 2517 North Main Avenue San Antonio, TX 78212 If to the CoMpan Ace Mart Restaurant Supply Co. Attention: Carl Gustafson Vice President 2653 Austin Hwy San Antonio, Texas 78218 With a copy to: Ace Mart Restaurant Supply Co. Attention: Rob Vetter Corporate Real Estate Services Department 2653 Austin Hwy San Antonio, Texas 78218 Any Party may designate a different address at any time upon written notice to the other Parties. 7. Governmental Records. All invoices, records and other documents required for submission to the City pursuant to the terms of this Agreement are Governmental Records for the purposes of Texas Penal Code Section 3 7. 10 8. Governing Law. The Agreement shall be governed by the laws of the State of Texas, and the venue for any action concerning this Agreement shall be in the Courts of Guadalupe County. The Parties agree to submit to the personal and subject matter jurisdiction of said court. 9. Amendment. This Agreement may be amended by mutual written agreement of the Parties, as approved by the Board of Directors of the Corporation. 10. Legal Construction. In the event any one or more of the provisions contained in this Agreement shall, for any reason, be held invalid, illegal, or unenforceable in any respect, such 12 invalidity, illegality, or unenforceability shall not affect other provisions of this Agreement, and it is the intention of the Parties to this Agreement that, in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid, or unenforceable. 11. Interpretation. Each of the Parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which Party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, whatever its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any Party. 1.2. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written agreement between the Parties that, in any manner, relates to the subject matter of this Agreement, except as provided for in any Exhibits attached hereto or duly approved amendments to this Agreement, as approved by the Board of Directors of the Corporation. 13. Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. 1.4. Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument. 15. Exhibits. Any Exhibits attached hereto are incorporated by reference for all purposes. 16. Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the :Parties, as well as any rights and benefits of the Parties, pertaining to a period of time following the termination of this Agreement shall survive termination. 17. Indemnification. COMPANY AGREES TO DEFEND, INDEMNIFY AND HOLD THE CORPORATION AND THE CITY OF SCHERTZ ( "CITY "), AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL REASONABLE LIABILITIES, DAMAGES, CLAIMS, LAWSUITS, JUSTMENTS, ATTORNEY FEES, COSTS, EXPENSES AND ANY CAUSE OF ACTION THAT DIRECTLY RELATES TO ANY OF THE FOLLOWING: ANY CLAIMS OR DEMANDS BY THE STATE OF TEXAS THAT THE CORPORATION HAS BEEN ERRONEOUSLY OR OVER -PAID SALES AND USE TAX FOR ANY PERIOD DURING THE TERM OF THIS AGREEMENT AS A RESULT OF THE FAILURE OF COMPANY TO MAINTAIN A PLACE OF BUSINESS AT THE PROPERTY OR IN THE CITY OF SCHERTZ, OR AS A RESULT OF ANY ACT OR OMISSION OR BREACH OR NON - PERFORMANCE BY COMPANY UNDER THIS AGREEMENT EXCEPT THAT THE IMDEMNITY PROVIDED HEREIN SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE ACTION OR OMISSIONS OF THE CORPORATION OR CITY. THE 1.3 PROVISIONS OF THIS SECTION ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. IT BEING THE INTENTION OF THE PARTIES THAT COMPANY SHALL BE RESPONSIBLE FOR THE REPAYMENT OF ANY FUNDS PAID TO COMPANY HEREIN THAT INCLUDES CITY SALES TAX RECEIPTS THAT THE STATE OF TEXAS HAS DETERMINED WAS ERRONEOUSLY PAID, DISTRIBUTED OR ALLOCATED TO THE CORPORATION. 18. Additional Instruments. The Parties agree and covenant to cooperate, negotiate in good faith, and to execute such other and further instruments and documents as may be reasonably required to fulfill the public purposes provided for and included within this Agreement. 1.9. Force Majeure. Whenever a period of time is herein prescribed for action to be taken by the Company, the Company shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays due to causes of any kind whatsoever which are caused by Force Majeure. 1.4 Executed on this day of , 20_ COMPANY Ace Mart Restaurant Supply Co., a Texas corporation Name: Carl Gustafson Title: Vice President STATE OF TEXAS X COUNTY OF X This information was acknowledged before me on this day of , by for Ace Mart Restaurant Supply Co., a Texas corporation, on behalf of said agency. Notary :Public, State of Texas Notary's typed or printed name My commission expires 15 Executed on this day of , 20_ CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION Name: Tim Brown Title: President STATE OF TEXAS X COUNTY OF GUADALUPE X This information was acknowledged before me on this day of , by for the City of Schertz Economic Development Corporation, a Texas non -profit industrial development corporation, on behalf of said agency. APPROVED AS To FORM: WE SEDC Attorney 16 Notary Public, State of Texas Notary's typed or printed name My commission expires Exhibit A . , . , 1.7 Annual Certification Report Reporting Period: January 1 to December 31, 20_ The Annual Certification Report for the Economic Development Performance Agreement between the City of Schertz Economic Development Corporation and Ace Mart Restaurant Supply Co., is due on February 15, 20_. Please sign and return the Annual Certification Report form with accompanying narrative. Project Information: Company's legal name: Project address subject to incentive: Company primary contact: Title: Phone number: E -mail address: Employment and Wage Information: Has the Company employed undocumented workers? ❑ Yes ❑ No What is the total number of Full -time Employees located at the Schertz facility during the calendar year? What is the total Annual Payroll for the Schertz facility during the calendar year? Investment Information: What is the taxable ad valorem value for Tangible Personal Property for the reporting period? What is the taxable Sales Tax Collection for the reporting period (please attach documentation)? Narrative: Please attach a brief narrative explaining the current year's activities and /or comments relating to any potential defaults. Employment: Total full -time employees: Total annual payroll: Number of full -time jobs added in past year: Number of employees that live in Schertz, Texas: Interested in being contacted about workforce training opportunities? ❑ Yes ❑ No Interested in being contacted for assistance with City permits? 11 Yes 11 No UK I certify that, to the best of my knowledge and belief, the information and attachments provided herein are true and accurate and in compliance with the terms of Economic Development Performance Agreement. I further certify that the representations and warranties contained within the Agreement remain true and correct as of the date of this Certification, and Ace Mart Restaurant Supply Co. remakes those representations and warranties as of the date hereof. I further certify that the employment and wage information provided is true and accurate to the best of my knowledge and I can provide documentation from the Texas Workforce Commission to support my claim if so requested. I understand that this Certificate is being relied upon by the SEDC in connection with the expenditure of public funds. I have the legal and express authority to sign this Certificate on behalf of Ace Mart Restaurant Supply Co. Name of Certifying Officer 91110 1 .uo' Certifying Officer's Title E -Mail Address Signature of Certifying Officer Date STATE OF TEXAS X COUNTY OF X This information was acknowledged before me on this day of by for Ace Mart Restaurant Supply Co., a Texas corporation, on behalf of said agency. Notary Public, State of Texas Notary's typed or printed name My commission expires The Annual Certification Report is to be completed, signed and returned on or before February 15, 20_. Please send an original to the following address: Attention: Executive Director City of Schertz Economic Development Corporation 1400 Schertz Parkway, Bldg. No. 2 Schertz, TX 78154 1.9 Agenda No. 9 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 Department: Police Subject: Resolution 17 -R -76 - Consideration and approval by the City Council of the City of Schertz, Texas an inter -local agreement between the City of Schertz and the Texas Department of Public Safety; Disposition Services, Law Enforcement Support Office. :• " ►1 The US Secretary of Defense is authorized by Federal law to transfer specific excess personal property items to law enforcement agencies for official use. The Governor of the State of Texas has designated the Texas Department of Public Safety; Disposition Services, Law Enforcement Support Office as the administrator of this program. The program is known as the 1033 Program or the Law Enforcement Support Office (LESO) Program. The Schertz Police Department has been involved in this program since 2015 and has been the recipient of various items to include an armored personnel carrier; MRAP. This is the annual renewal of the agreement. Goal To renew the Fiscal Year 2018 . agreement to participate in the 1.033 Program. Community Benefit Through this program, the Police Department has been able to obtain excess personnel property that would have been cost prohibitive if it had to rely on general funds. The program will provide the excess personnel property often at no cost. Summary of Recommended Action Staff recommends approval of the attached Resolution authorizing the City Manager and Chief of Police to enter into this renewal with the Texas Department of Public Safety; Disposition Services, Law Enforcement Supply Office. FISCAL IMPACT There is no additional fiscal impact associated with this agreement. ATTACHMENT Resolution No. 17 -R -76 State Plan of Operation between the State of Texas and the Schertz Police Department. RESOLUTION NO. 17 -R -76 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AGREEMENTS WITH THE TEXAS DEPARTMENT OF PUBLIC SAFETY, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the US Secretary of Defense is authorized by 10 USC § 2576a to transfer to State Law Enforcement Agencies; personal property that is excess to the needs of the Department of Defense; and WHEREAS, the Governor of the State of Texas has authorized the Texas Department of Public Safety; Disposition Services, Law Enforcement Support Office as the administrator for such excess and surplus property; and WHERAS, the Schertz Police Department has been a part of this program since its inception in 2015 and has received excess personal property for the use of the department in its official capacity to provide police services to the citizens of Schertz; and WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City renew the agreement; and WHEREAS, the City Council has determined that it is in the best interest of the City to enter into agreements with the Texas Department of Public Safety; Disposition Services, Law Enforcement Support Office; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager and Chief Of Police to enter into the renewal interlocal agreement attached in Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 29th day of August 2017. CITY OF SCHERTZ, TEXAS Mayor, Michael R. Carpenter ATTEST: City Secretary, Brenda Dennis (CITY SEAL) 50506221.1 - 2 - CLEA3 " -€61 &pdate LAW ENFORCEMENT AGENCY (LEA) APPLICATION FOR PARTICIPATION ** *This application must be updated and resubmitted within 30 days of any changes * ** (' Federal State OTribal Federal Agencies only: (Parent Affiliate i.e. DOJ): 2YTXOC DODAAC (Update Only): AGENCY: Schertz Police Department PHYSICAL ADDRESS (No P.O. Box): 1400 Schertz Parkway Building #6 CITY: Schertz STATE: Texas ZIP: 78154 ** *AGENCY MUST HAVE AT LEAST 1 FULL -TIME OFFICER TO PARTICIPATE IN THE PROGRAM * ** INDICATE THE NUMBER OF COMPENSATED OFFICERS WITH ARREST AND APPREHENSION AUTHORITY FULL -TIME: 55 PART -TIME: 0 SCREENER POC(s): INCLUDE EMAIL ADDRESS AND DIRECT CONTACT PHONE NUMBER IF AVAILABLE *MAIN POC: Is the Primary POC for requests and property pickup NOTICE: LAW ENFORCEMENT ACTIVITIES ARE DEFINED AS: GOVERNMENTAL AGENCIES WHOSE PRIMARY FUNCTION IS THE ENFORCEMENT OF APPLICABLE FEDERAL, STATE AND LOCAL LAWS AND WHOSE OFFICERS HAVE THE POWERS OF ARREST AND APPREHENSION. Upon acceptance into the Program, I understand that I have 30 days to familiarize myself with the State Plan of Operation and all Program guidance that is provided by the State Coordinator and that by signing, I certify that all information contained above is valid and accurate. (N /A for Federal Agencies) By signing this I /we certify under penalty of perjury that the foregoing is true and correct. Making a false statement may result in judicial actions or prosecution under 18USC § 1001. CHIEF LAW ENFORCEMENT OFFICIAL /: Michael R. Hansen DATE: HEAD OF LOCAL AGENCY SIGNATURE STATE COORDINATOR /SPOC: (NOT REQUIRED FOR FEDERAL AGENCIES) LESO Team Lead Approval PRINTED NAME SIGNATURE DATE: AP Version: 1/28/16 NAME: LAST, FIRST EMAIL PHONE # *SCREENER /MAIN POC Siweckl, Thadeus tsiwecki @schertz.com 210 - 619 -1240 SCREENER /POC #2 Richard Banduch rbanduch @schertz.com 210- 619 -1200 SCREENER /POC #3 Marc Bane mbane @schertz.com 210- 619 -1246 SCREENER /POC #4 Michael Hansen mhansen @schertz.com 210 -619 -1212 WEAPON /POC Richard Banduch rbanduch @schertz.com 210 -619 -1200 AIRCRAFT /POC VEHICLE /POC NOTICE: LAW ENFORCEMENT ACTIVITIES ARE DEFINED AS: GOVERNMENTAL AGENCIES WHOSE PRIMARY FUNCTION IS THE ENFORCEMENT OF APPLICABLE FEDERAL, STATE AND LOCAL LAWS AND WHOSE OFFICERS HAVE THE POWERS OF ARREST AND APPREHENSION. Upon acceptance into the Program, I understand that I have 30 days to familiarize myself with the State Plan of Operation and all Program guidance that is provided by the State Coordinator and that by signing, I certify that all information contained above is valid and accurate. (N /A for Federal Agencies) By signing this I /we certify under penalty of perjury that the foregoing is true and correct. Making a false statement may result in judicial actions or prosecution under 18USC § 1001. CHIEF LAW ENFORCEMENT OFFICIAL /: Michael R. Hansen DATE: HEAD OF LOCAL AGENCY SIGNATURE STATE COORDINATOR /SPOC: (NOT REQUIRED FOR FEDERAL AGENCIES) LESO Team Lead Approval PRINTED NAME SIGNATURE DATE: AP Version: 1/28/16 TEXAS LESO PROGRAM SUPPLEMENTAL DATA SHEET Date: 8/21117 Agency Name: Scheriz Police department ORI (Originating Agency Identification) number: TX 0940200 (Please enter same screeners in the order as listed on front page) Screener #1: Thadeus Siwecki /Police Lieutenant NAME I TITLE Screener #2: Richard Banduch / Patrolman NAME ITITLE Screener 43: Marc Bane / Assistant Chief of Police Screener #4: Michael Hansen / Police Chief Version 7115117 STATE PLAN OF OPERATIONS BETWEEN THE STATE OF No 9l;IF: s_►11 Y:1 Schertz Police Department I. PURPOSE This State Plan of Operation (SPO) is entered into between the State of Texas and the (LEA name) Schertz Police Department , to set forth the terms and conditions which will be binding on the parties with respect to excess Department of Defense (DOD) personal property transferred pursuant to 10 USC § 2576a in order to promote the efficient and expeditious transfer of property and to ensure accountability of the same. H. AUTHORITY The Secretary of Defense is authorized by 10 USC § 2576a to transfer to State Law Enforcement Agencies, personal property that is excess to the needs of the DOD and that the Secretary determines is suitable to be used by such agencies in law enforcement activities, with preferences for counter -drug / counter - terrorism or border security activities, under such terms prescribed by the Secretary. The authorities granted to the Secretary of Defense have been delegated to the Defense Logistics Agency (DLA) in determining whether property is suitable for use by agencies in Law Enforcement Activities (LEAs). DLA defines law enforcement activities as activities performed by governmental agencies whose primary function is the enforcement of applicable Federal, State, and local laws and whose compensated law enforcement officers have powers of arrest and apprehension. This program is also known as the "1033 Program" or the "LESO Program" and is administered by DLA Disposition Services, Law Enforcement Support Office (LESO). M. GENERAL TERMS AND CONDITIONS A. OPERATIONAL AUTHORITY The Governor of the State of Texas has designated in writing with an effective date of August 26, 2015 to implement this program statewide as well as conduct management and oversight of this program. Funding / Budgeting to administer this program are provided by the Texas Department of Public Safety. The provided funding is used to support assistance to the LEAs with customer service to include Version May, 2016 computer / telephone assistance and physical visits to the LEAs to assist with acquiring access to the LESO Program. The staffing to provide the support to the LEAs within the State of Texas is as follows: State Coordinator (SC): Skylor He State Point of Contact (SPOC): Rolando Ayala State Point of Contact (SPOC): Laurie Patterson State Point of Contact (SPOC): John Riddick The following is the facility / physical location and business hours to provide customer service to those LEAs currently enrolled, as well as interested participants of the LESO Program: Agency Address / Location: 5805 N Lamar Blvd Austin, Texas 78752 EMAIL /Contact Phone Numbers: Texas I033Proeramadps.texas.gov 512- 424 -7590 Fax Number: 512- 424 -7591 Hours of Operation: 7AM — 5PM B. The DLA LESO has final authority to determine the type, quantity, and location of excess DOD personal property suitable for law enforcement activities, if any, which will be transferred to the (LEA name) Schertz Police Department C. This agreement creates no entitlement to the LEA to receive excess DOD personal property. D. The (LEA name) Schertz Police Department understands that property made available under this agreement is for the use of authorized program participants only. Property may not be obtained for any individual, organization, or agency that has not been approved as a participant in the LESO Program. All requests for property must be based on bona fide law enforcement requirements. Property will not be obtained by any authorized participant for the purpose of sale, lease, loan, personal use, rent, exchange, barter, transfer, or to secure a loan. E. Controlled property (equipment) includes any property that has a demilitarization (DEMIL) Code of B, C, D, F, G, and Q; and property, regardless of demilitarization code, that was specifically identified in the Law Enforcement Equipment Working Group Report from May 2015, created pursuant to Executive Order 13688 (EO). The Working Group Report mandates that the following items be treated as controlled property: 1) Manned Aircraft, fixed or rotary wing 2) Unmanned Aerial Vehicles 3) Wheeled Armored Vehicles 4) Wheeled Tactical Vehicles 5) Command and Control Vehicles 6) Specialized Firearms and Ammunition Under .50 Cal (excluded firearms and ammunition for service- issued weapons) 7) Explosives and Pyrotechnics 8) Breaching apparatus 2 Version May, 2016 9) Riot Batons 10) Riot Helmets 11) Riot Shields F. LEAs that request items in Paragraph E above must provide all required information outlined in the Law Enforcement Equipment Working Group Report and all information on the LESO request form. Among other specific requirements identified in these documents, LEAs will be required to certify and submit: 1) A detailed written justification with a clear and persuasive explanation of the need for the property and the law enforcement purposes it will serve; 2) Evidence of approval or concurrence by the LEA's civilian governing body (city council, mayor, etc.); 3) The LEA's policies and protocols on deployment of this type of property; 4) Certifications on required training for use of this type of property; and 5) Information on whether the LEA has applied, or has pending an application, for this type of property from another Federal agency. G. The (LEA name) Schertz Police Department must maintain and enforce regulations designed to impose adequate security measures for controlled property to mitigate the risk of loss or theft. H. Under no circumstances will controlled property be sold or otherwise transferred to non -U.S. persons, or exported. All transfers must be approved by the State and DLA Disposition Services LESO. I. Cannibalization requests for controlled property must be submitted in writing to the State, with final approval by the LESO. The LESO will consider cannibalization requests on a case - by -case basis. J. The LESO conditionally transfers all excess DOD property to States / LEAs enrolled in the LESO Program. Title or ownership of controlled property will remain with the LESO in perpetuity and will not be relinquished to the LEAs. When the LEA no longer has legitimate law enforcement uses for controlled property, the LEA must notify the State, who will then notify the LESO, and the controlled property must either be transferred to another enrolled LEA (via standard transfer process) or returned to DLA Disposition Services for disposal. The LESO reserves the right to recall controlled and non - controlled property issued through the LESO Program at any time. K. Property with a DEMIL Code of "A" is also conditionally transferred to the LEA. However, after one year from the Ship Date, the LESO will relinquish ownership and title to the LEA. Prior to this date, the State and LEA remains responsible for the accountability and physical control of the item(s) and the LESO retains the right to recall the property. Title will not be relinquished to any property with DEMIL Code of "A" that is controlled property identified in Paragraph III E. Version May, 2016 1) Property with DEMIL Code of "A" will automatically be placed in an archived status on the LEAs property book upon meeting the one year mark. 2) Once archived, the property is no longer subject to annual inventory requirements and will not be inventoried during a LESO Program Compliance Review (PCR). 3) Ownership and title of DEMIL "A" items that have been archived will pass automatically from the LESO to the LEA when they are archived at the one year mark (from Ship Date) without issuance of any further documentation. 4) LEAs receive title and ownership of DEMIL "A" items as governmental entities. Title and ownership of DEMIL "A" property does not pass from DOD to any private individual or LEA official in their private capacity. Accordingly, such property should be maintained and ultimately disposed of in accordance with provisions in State and local law that govern public property. Sales or gifting of DEMIL "A" property after the one year mark in a manner inconsistent with State or local law may constitute grounds to deny future participation in the LESO Program. L. The LEAs are not authorized to transfer controlled property or DENn Code "A" property carried on their inventory without LES O notification and approval. Property will not physically move until the State and LESO approval process is complete. IV. ENROLLMENT A. An LEA must have at least one full-time law enforcement officer in order to enroll and/or receive property via the LESO Program. Only full -time and part-time law enforcement officers are authorized to receive property. Reserve officers are not authorized to receive property. 1) The LEA shall submit an updated Application Packet to the State Coordinator's office no later than December 1 each year and/or any time there is a change in personnel or LEA contact information. Failure to do so may result in suspension and/or termination from the program. 2) Once approved for participation in the program, at least one of the LEA's authorized screeners must attend a mandatory training class prior to any requests for property being approved. The class will be conducted free of charge to the LEA and will be held at location determined by the State Coordinator's office. 3) LEA transfer of responsibility — program property assigned to the LEA. A change in the Chief Law Enforcement Official (CLEO), due to any reason, will not relinquish responsibility from the LEA for properly maintaining existing program property in the LEA's possession. If the new CLEO does not wish to be responsible for existing property, they shall notify the State Coordinator's office in writing that they wish to return the equipment to the nearest Disposition Site or transfer it to a qualifying LEA. The new CLEO remains responsible for existing property until the property is officially transferred or returned. Version May, 2016 B. The State shall: 1) Implement LESO Program eligibility criteria in accordance with 10 USC § 2576a, DLA Instructions and Manuals, and the DLA MOA the State signs. 2) Receive and process applications for participation from LEAs currently enrolled and those LEAs that wish to participate in the LESO Program. 3) Receive and recommend approval or disapprove LEA applications for participation in the LESO Program. The State Coordinators have sole discretion to disapprove LEA applications on behalf of the Governor of their State. The LESO should be notified of any applications disapproved at the State Coordinator level. The State Coordinator will only forward and recommend certified LEAs to the LESO that are government agencies whose primary function is the enforcement of applicable Federal, State, and local laws and whose compensated officers have the powers of arrest and apprehension. The LESO retains final approval / disapproval authority for all LEA applications forwarded by State Coordinators. 4) Ensure LEAs enrolled in the LESO Program update the LEAs account information annually (accomplished during the FY Annual Inventory in the Federal Excess Property Management Information System [FEPMIS]). 5) Provide a comprehensive overview of the LESO Program to all LEAs once they are approved for enrollment. This comprehensive overview must be done within thirty (30) days and include, verbatim, the information contained in Paragraph III E of this SPO. 6) Ensure that screeners of property are employees of the LEA. Contractors may not conduct screening on behalf of the LEA. 7) Ensure that at least one person per LEA maintains access to the FEPMI S. Account holders must be employees of the LEA. V. ANNUAL INVENTORY REQUIREMENTS A. Per the DLA Instructions and Manuals and the DLA MOA, each State and participating LEA within is required to conduct an annual inventory certification of controlled property, which includes DEMIL "A" for one (1) year from Ship Date. Annual inventories start on October 1 of each year and end December 1 of each year. B. The State shall: 1) Receive, validate, and reconcile incoming certified inventories from the LEAs. 2) Ensure LEAs provide serial numbers and photos identified during the annual inventory process for inclusion in the LES0 property accounting system for all controlled property identified in Paragraph III E, small arms and other unique Version May, 2016 items as required. For equipment that does not contain a serial number, such as riot control or breaching equipment, a photograph will suffice. 3) Suspend the LEA as a result of the LEAs failure to properly conduct and/or certify and submit certified inventories, according to the aforementioned requirements. C. The LEA shall: 1) Complete the annual physical inventory as required. 2) Provide serial numbers and photos identified in the annual inventory process for inclusion in the LESO property accounting system for all controlled property identified in Paragraph III E, small arms and other unique items, as required. For equipment that does not contain serial number, such as riot control or breaching equipment, a photograph will suffice. 3) Certify the accountability of all controlled property received through the LESO Program annually by conducting and certifying the physical inventory. The LEA must adhere to additional annual certification requirements as identified by the LESO. a. The State requires each LEA to submit certified inventories for their Agency by December 1 of each year. The Fiscal Year (FY) is defined as October 1 through September 30 of each year. This gives the LEA two (2) months to physically inventory LESO Program property in their possession and submit their certified inventories to the State Coordinators. (1) The LESO requires a front or side and data plate photo for Aircraft and Tactical Vehicles that are serial number controlled, received through the LESO Program. (2) The LESO requires serial number photos for each small arm received through the LESO Program. b. The LEAs failure to submit the certified annual inventory by December 1 may result in the agency being suspended from operations within the LESO Program. Further failure to submit the certified annual inventory may result in a LEA termination. 4) Be aware that High Profile Commodities (Aircraft, Tactical Vehicles and Small Arms) and High Awareness (controlled) property are subject to additional controls. VI. PROGRAM COMPLIANCE REVIEWS A. The LESO conducts a Program Compliance Review (PCR) for each State that is enrolled in the LESO Program every two (2) years. The LESO reserves the right to require an annual PCR, or similar inspection on a more frequent basis for any State. The LESO PCBs are performed in order to ensure that State Coordinators, SPOCs and all LEAs within a State are compliant with the terms and conditions of the LESO Program as required by 10 USC § 2576a, DLA Instructions and Version May, 2016 Manuals, and the DLA MOA signed by the State. 1) If a State and/or LEA fails a PCR, the LESO will immediately suspend their operations and will subsequently issue corrective actions (with suspense dates) to the State Coordinator, which will identify what is needed to rectify the identified deficiencies within the State and/or LEA. 2) If a State and/or LEA fails to correct identified deficiencies by the given suspense dates, the LESO will move to terminate the LESO Program operations within the State and/or LEA. B. The State shall: 1) Support the LESO PCR process by: a. Contacting LEAs selected for the PCR review via phone and/or email to ensure they are aware of the PCR schedule and prepared for review. b. Receiving inventory selection from the LESO. The LEA POCs shall gather the selected items in a centralized location to ensure that the LESO can efficiently inventory the items. c. Providing additional assistance to the LESO as required, prior to and during the course of the PCR. 2) Conduct internal Program Compliance Reviews of LEAs participating in the LESO Program in order to ensure accountability, program compliance and validate annual inventory submissions are accurate. The State Coordinator must ensure an internal PCR of at least 5% of LEAs that have a property book from the LESO Program within his / her State is completed annually. This may result in a random review of all or selected property at the LEA. a. The internal PCR will include, at minimum: (1) A review of each selected LEAs LESO Program files. (2) A review of the signed State Plan of Operation (SPO). (3) A review of the LEA application and screener's letter. (4) A physical inventory of the LESO Program property at each selected LEA. (5) A specific review of each selected LEAs files for the following: DD Form 1348 -1A for each item currently on inventory, small arms documentation, transfer documents, turn-in documents, inventory adjustment documents, exception to policy letters (if any), approved cannibalization requests (if any), and other pertinent documentation as Version May, 2016 required. b. The State and/or LEA will bear all expenses related to the repossession and/or turn-in of LESO Program property to the nearest DLA Disposition Services site. VII. STATE PLAN OF OPERATION (SPO) A. The State shall: 1) Identify, establish, and issue minimum criteria to be included in the SPO for the State and each participating LEA. 2) Establish a State Plan of Operation, developed in accordance with Federal and State law, and conforming (at minimum) to the provisions of the DLA Instruction and Manuals and the DLA MOA. a. The SPO will include detailed organizational and operational authority including: staffing, budget, facilities, and equipment that the State believes is sufficient to manage the LESO Program within their State. b. The SPO must address procedures for making determinations of LEA eligibility, allocation, and equitable distribution of material, accountability and responsibility concerning excess DOD personal property, inventory requirements, training and education, State -level internal Program Compliance Reviews (PCR), and procedures for tum -in, transfer, and disposal. 2) Enter into written agreement with each LEA, via the LESO approved State Plan of Operation, to ensure the LEA fully acknowledges the terms, conditions, and limitations applicable to property transferred pursuant to this agreement. The State Plan of Operation must be signed by the Chief Law Enforcement Official (CLEO), or assigned designee of the respective LEA, and the current State Coordinator. 3) Request that the LESO Suspend or Terminate an LEA(s) from the LESO Program when an LEA fails to comply with any term of DLA MOA, the DLA Instruction and Manuals, any Federal statute or regulation, or the State Plan of Operation. VIII. REPORTING REQUIREMENTS FOR LOST, MISSING, STOLEN, DAMAGED OR DESTROYED LESO PROGRAM PROPERTY A. All property Lost, Missing, Stolen, (LMS) damaged, or destroyed carried on a LEA's current inventory must be reported to the LESO. 1) Controlled property must be reported to the State and the LESO within twenty-four (24) hours. The aforementioned property may require a police and National Crime Information Center (NCIC) report submitted to the LESO, to include DEMIL "A" items that are considered controlled items in Paragraph III E. Version May, 2016 2) Property with a DEMIL Code of "A" must be reported to the State and the LESO within seven (7) days. 3) All reports are subject to review by the DLA Office of the Inspector General (OIG). B. LESO may grant extensions to the reporting requirements listed above on a case - by-case basis. IX. AIRCRAFT AND SMALL ARMS A. All aircraft are considered controlled property, regardless of DEMIL Code. Aircraft may not be sold and must be returned to the LESO at the end of their useful life. This State Plan of Operation ensures that all LEAs and all subsequent users are aware of and agree to provide all required controls and documentation in accordance with applicable laws and regulations for these items. B. LEAs no longer requiring small arms issued through the LESO Program must request authorization to transfer or turn -in small arms. Transfers and turn-ins must be forwarded and endorsed by the State Coordinator's office first, and then approved by the LESO. Small Arms will not physically transfer until the approval process is complete. C. Small Arms that are issued must have a documented chain of custody, with the chain of custody including a signature of the receiving officer indicating that he / she has received the appropriate small arm(s) with the correct, specific serial number(s). Small Arms that are issued to an officer will be issued utilizing an Equipment Custody Receipt (ECR); this Custody Receipt obtains the signature of the officer responsible for the small arm. X. RECORDS MANAGEMENT The LESO, State Coordinator, and LEAs enrolled in the LESO Program must maintain all records in accordance with the DLA Records Schedule. Records for property acquired through the LESO Program have retention controls based on the property's DEMIL Code. All documents concerning a property record must be retained. 1) Property records for items with DEMIL Code of "A" must be retained for two (2) calendar years from the date the property is removed from the LEA's property book before being destroyed. 2) Property records for controlled property must be retained for five (5) calendar years from the date the property is removed from the LEA's property book before being destroyed. 3) Environmental Property records must be retained for fifty (50) years, regardless of DEMIL Code (Chemicals, Batteries, Hazardous Material / Hazardous Waste). 4) LESO Program files must be segregated from all other records. Version May, 2016 5) All property records must be filed, retained, and destroyed in accordance with DLA Records Schedule. These records include, but are not limited to, the following: DD Form 1348 -1A, requests for transfer, tum -in, or disposal, approved Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) Forms 10 and 5, Certificate of Aircraft Registration (AC Form 8050 -3), Aircraft Registration Application (AC 8050 -1) and any other pertinent documentation and/or records associated with the LESO Program. XI. LESO PROGRAM ANNUAL TRAINING A. 10 USC § 380 provides that the Secretary of Defense, in cooperation with the U.S. Attorney General, shall conduct an annual briefing of law enforcement personnel of each state. The briefing will include information on training, technical support, equipment, and facilities that are available to civilian law enforcement personnel from the Department of Defense. B. The State shall organize and conduct training pertaining to information, equipment, technical support and training available to LEAs via the LESO Program. C. The State shall ensure at least one representative (i.e. the State Coordinator or SPOC) attend the annual training that the LESO conducts. XII. PROPERTY ALLOCATION A. The State Shall: 1) Provide the LEA with a website that will afford timely and accurate guidance, information, and links for all LEAs who work, or have an interest in, the LESO Program. 2) Upon receipt of a valid State / LEA request for property through the DLA Disposition Services RTD website, a preference will be given to those applications indicating that the transferred property will be used in the counter -drug, counter- terrorism, or border security activities of the recipient agency. Additionally, to the greatest extent possible, the State will ensure fair and equitable distribution of property based on current LEAs inventory and justification for property. 3) The State and the LESO reserve the right to determine and/or adjust allocation limits. Generally, no more than one of any item per officer will be allocated to an LEA. Quantity exceptions may be granted on a case -by -case basis by the LESO. Currently, the following quantity limits apply: a. Small Arms: one (1) type for each qualified officer, full -time / part-time; b. I MMWVs: one (1) vehicle for every three (3) officers; c. MRAPs: one (1) vehicle per LEA. 4) The State and the LESO reserve final authority on determining the approval and/or disapproval for requests of specific types and quantities of excess DOD property. 10 Version May, 2016 B. The LEA shall: 1) Ensure an appropriate justification is submitted when requesting excess DOD property via the LESO Program and will ensure LESO Program property will be used for the law enforcement activity and for law enforcement purposes only within his / her State and agency. 2) When requesting property, provide a justification to the State and the LESO on how the requests for property will be used in counter -drug, counter - terrorism, or border security activities of the recipient agency. Additionally, the LEA should be fair and equitable when making requisitions based on current LEA inventory and the justification for property. Generally, no more than one of any item per officer will be allocated. 3) Ensure screeners of property are employees of the LEA. Contractors may not conduct screening on behalf of the LEA. 4) Obtain access to FEPMIS to ensure the property book is properly maintained, to include but not limited to transfers, turn -ins, and disposal requests and to generate these requests at the LEA level and forward all approvals to the State for action. 5) Ensure at least one person per LEA maintains access to FEPMIS. FEPMIS account holders must be employees of the LEA. XIII. PROGRAM SUSPENSION & TERMINATION A. The State and LEA are required to abide by the terms and conditions of the DLA MOA in order to maintain active status. B. The State shall: 1) Suspend LEAs for a minimum of sixty (60) days in all situations relating to the suspected or actual abuse of LESO Program property or requirements and/or repeated failure to meet the terms and conditions of the DLA MOA. Suspension may lead to TERMINATION. 2) The State and/or the LESO have final discretion on reinstatement requests. Reinstatement to full participation from a suspension and/or termination is not automatic. 3) Incoordination with the LESO, issue corrective action guidance to the LEA with suspense dates to rectify issues and/or discrepancies that caused suspension and/or termination. 4) Require the LEA to submit results regarding all completed police investigations and/or reports regarding lost, missing, stolen and/or damaged LESO Program property, to include the LEAs Corrective Action Plan (CAP). 11 Version May, 2016 5) Suspend or terminate an LEA from the LESO Program if an LEA fails to comply with any term of the DLA MOA, the DLA Instruction and Manuals, any Federal statute or regulation, or the State Plan of Operation. a. In the event of an LEA termination, the State Coordinator will make every attempt to transfer the LESO Program property of the terminated LEA to an authorized State or LEA, as applicable, prior to requesting a turn-in of the property to the nearest DLA Disposition Services location. b. In cases relating to an LEA termination, the LEA will have ninety (90) days to complete the transfer or turn-in of all LESO Program property in their possession. C. The LEA shall: 1) Notify the State Coordinator's office and initiate an investigation into any questionable activity or actions involving LESO property issued to the LEA that comes to the attention of the CLEO, and is otherwise within the authority of the Governor / State to investigate. LEAs must understand that the State Coordinators, acting on behalf of their Governor, may revoke or terminate their concurrence for LEA participation in the LESO Program at any time, and for any reason. 2) Understand that the State may suspend LEA(s) and/or LEA POC(s) from within their State, based upon their findings during internal Program Compliance Reviews and/or spot checks at the State level. 3) Initiate corrective action to rectify suspensions and/or terminations placed upon the LEA for failure to meet the terms and conditions of the LESO Program. 4) Be required to complete and submit results regarding all completed police investigations and/or reports regarding lost, missing, stolen and/or damaged LESO Program property. The LEA must submit all documentation to the State and the LESO upon receipt. 5) Provide documentation to the State and the LESO when actionable items are rectified for the State and/or LEA(s). 6) The LEAs Chief Law Enforcement Official must request reinstatement as required, via the State Coordinator or SPOC(s), to full participation status at the conclusion of a suspension period. XIV. COSTS & FEES 1) All costs associated with the transportation, turn-in, transfer, repair, maintenance, insurance, disposal, repossession or other expenses related to property obtained through the LESO Program is the sole responsibility of the LEA. In the event an agency is dissolved or disbanded and no civilian governing body exists, the costs associated with the transportation and turn-in of all property in the possession of the 12 Version May, 2016 dissolved or disbanded LEA then becomes responsibility of the State. XV. NOTICES Any notices, communications, or correspondence related to this agreement shall be provided by E- mail, the United States Postal Service, express service, or facsimile to the State Coordinators office or cognizant DLA office. The LESO may, from time to time, make unilateral modifications or amendments to the provisions of this SPO. Notice of these changes will be provided to State Coordinators in writing. Unless State Coordinators take immediate action to terminate this SPO in accordance with Section XVIII, such modifications or amendments will become binding. In such cases, reasonable opportunity will, insofar as practicable, be afforded the State Coordinator to conform changes affecting their operations. XVI. ANTI- DISCRIMINATION A. By signing this SPO, or accepting excess DOD personal property under this SPO, the State pledges that it and each LEA agrees to comply with applicable provisions of the following national policies prohibiting discrimination: 1) On the basis of race, color, or national origin, in Title VI of the Civil Rights Act of 1964 (42 USC 2000d et seq.) as implemented by DOD regulations 32 CR Part 195. 2) On the basis of age, in the Age Discrimination Act of 1975 (42 USC 6101, et seq) as implemented by Department of Health and Human Services regulations in 45 CFR Part 90. 3) On the basis of handicap, in Section 504 of the Rehabilitation Act of 1973, P.L. 93- 112, as amended by the Rehabilitation Act Amendments of 1974, P.L. 93 -516 (29 USC 794), as implemented by Department of Justice regulations in 28 CFR Part 41 and DOD regulations at 32 CFR Part 56. B. These elements are considered the minimum essential ingredients for establishment of a satisfactory business agreement between the State and the DOD. XVIL INDEMNIFICATION CLAUSE The LEA is required to maintain adequate insurance to cover damages or injuries to persons or properly relating to the use of property issued under the LESO program. Self- insurance by the LEA is considered acceptable. The U.S. Government and the Texas Department of Public Safety assumes no liability for damages or injuries to any person(s) or property arising from the use of property issued under the LESO program. It is recognized that State and local law generally limit or preclude State Coordinators / LEAs from agreeing to open -ended indemnity provisions. However, to the extent permitted by State and local laws, the LEA shall indemnify and hold the U.S. Government and the Texas Department of Public Safety harmless from any and all actions, claims, debts, demands, judgments, liabilities, cost, and attorney's fees arising out of claimed on account of, or in any manner predicated upon loss of, or damage to property and injuries, illness or disabilities to, or death of any and all persons whatsoever, including members of the general public, or to the property of any legal or political entity including states, local and interstate 13 Version May, 2016 bodies, in any manner caused by or contributed to by the LEA, its agents, servants, employees, or any person subject to its control while the property is in the possession of, used by, or subject to the control of the LEA, its agents, servants, or employees after the property has been removed from U.S. Government control. XVHI. TERMINATION A. This SPO may be terminated by either party, provided the other party receives thirty (30) days' notice, in writing, or as otherwise stipulated by Public Law. B. The undersigned State Coordinator and CLEO hereby agree to comply with all provisions set forth herein and acknowledge that any violation of the terms and conditions of this SPO may be grounds for immediate termination and possible legal consequences, to include pursuit of criminal prosecution if so warranted. XDL IN WITNESS THEREOF, the parties hereto have executed this agreement as of the last date written below. Michael R. Hansen Type / Print Chief Law Enforcement Official Name Chief Law Enforcement Official Signature John C. Kessel Type/Print Civilian Governing Body Authorized Official CGB Authorized Official Signature Type / Print State Coordinator Name State Coordinator Signature 14 Date (MM/DD/YYYY) Date (MM/DD/YYYY) Version May, 2016 Agenda No. 10 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 . Department: Subject: BACKGROUND Public Works Ordinance No. 17 -D -32 - An Ordinance by the City Council of the City of Schertz, Texas establishing a public right -of -way management ordinance by the city of Schertz, Texas; regulating the physical use, occupancy and maintenance of city rights - of -way by wireless network providers; describing the purpose; providing definitions; requiring compliance with the city design manual and applicable codes for the installation of network nodes, node support poles, and transport facilities pursuant to chapter 284 of the Texas local government code; providing city procedures for applications for permits; establishing time periods for approval of permit applications; providing application fees and annual public right -of -way rental rates; providing restrictions on placement of network nodes, node support poles and transport facilities in municipal parks, residential areas, historic districts and design districts; providing indemnity for the city; providing repealing and savings clauses; proving a Texas open meetings act clause; declaring an emergency and providing an effective date of September 1, 2017. (First and Final Reading) Since 2005, the City of Schertz has regulated the placement of wireless network equipment within the City of Schertz. This has been very successful for the City as we have both minimized the presence of wireless antennas and utilized our overhead water storage tanks as locations for cell antenna placement. With the changes in technology, wireless network providers have developed smaller equipment to supplement the data availability and band width of the traditional larger cellular antennas. These network providers desire to place this smaller equipment closer to large groupings of citizens and have been working to place these small "nodes" in the public right of ways on either City owned facilities (power poles, traffic signals, etc) or by erecting their own small poles next to or near City owned poles. The City, like many others across the state, have forbidden these smaller devices from being placed in the public right of ways. However, the 85th Session of the Texas Legislature passed SB 1004 that created Chapter 284 of the Texas Local. Government Code that prevents cities from forbidding these devices in the public right of way and establishes statewide regulation and fees for cities that desire to regulate this equipment. In this process the legislature did provide certain and specific rights of cities to regulate these network providers on size, appearance, location and methods of placing these devices in the public right of way. Our abilities to regulate this is spelled out very specifically in the legislation. City Staff believes we need to be prepared by the effective date of Senate Bill 1004 on September 1, 2017 to maximize the limited regulatory ability granted to us by the legislature. As such, we have developed the attached ordinance to establish right of way management practices for the placement of wireless network equipment. Legislation is very clear that we have to have our regulations in place by September 1, 2017 or wireless network providers can have almost unlimited access to our right of ways. The City has already been made aware of three placements that will be applied for as of September 1, 2017. . With this meeting being the last meeting prior to September 1, 2017, . Staff recommends declaring an emergency to pass this ordinance on a first and final reading. GOAL To establish a Right of Way Management Ordinance for the regulation of wireless network providers desiring to place wireless network nodes, network node poles and transport facilities within the public right of way within the City of Schertz. COMMUNITY BENEFIT To regulate to the extent allowed by law the placement of wireless network equipment within the public right of way. This insures the public health, safety and welfare of our citizens while working to maintain an attractive community in the public spaces. SUMMARY OF RECOMMENDED ACTION Staff recommends City Council approve this Ordinance to establish a Right of Way Management Ordinance for the regulation of wireless network providers placing equipment within the public right of way. FISCAL IMPACT There is no fiscal impact to this ordinance. This ordinance does allow for fees to be collected for certain things as established by State law. The amount of this revenue will be minimal. RECOMMENDATION Staff recommends Council approve on first and final reading Ordinance No. 17 -D -32 ATTACHMENTS Ordinance No. 17-D-32 ORDINANCE NO. 17 — D — 32 A PUBLIC RIGHT -OF -WAY MANAGEMENT ORDINANCE BY THE CITY OF SCHERTZ, TEXAS; REGULATING THE PHYSICAL USE, OCCUPANCY AND MAINTENANCE OF CITY RIGHTS -OF -WAY BY WIRELESS NETWORK PROVIDERS; DESCRIBING THE PURPOSE; PROVIDING DEFINITIONS; REQUIRING COMPLIANCE WITH THE CITY DESIGN MANUAL AND APPLICABLE CODES FOR THE INSTALLATION OF NETWORK NODES AND NODE SUPPORT POLES PURSUANT TO CHAPTER 284 OF THE TEXAS LOCAL GOVERNMENT CODE; PROVIDING CITY PROCEDURES FOR APPLICATIONS FOR PERMITS; ESTABLISHING TIME PERIODS FOR APPROVAL OF PERMIT APPLICATIONS; PROVIDING APPLICATION FEES AND ANNUAL PUBLIC RIGHT -OF -WAY RENTAL RATES; PROVIDING RESTRICTIONS ON PLACEMENT OF NETWORK NODES AND NODE SUPPORT POLES IN MUNICIPAL PARKS, RESIDENTIAL AREAS, HISTORIC DISTRICTS AND DESIGN DISTRICTS; PROVIDING INDEMNITY FOR THE CITY; PROVIDING REPEALING AND SAVINGS CLAUSES; PROVING A TEXAS OPEN MEETINGS ACT CLAUSE; DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE OF SEPTEMBER 1, 2017. WHEREAS, the City of Schertz, Texas ( "City ") recognizes that the State of Texas has delegated to the City the fiduciary duty, as a trustee, to manage the public right -of -way for the health, safety, and welfare of the public to Texas municipalities; and WHEREAS, Chapter 284 of the Texas Local Government Code ( "the Code ") allows certain wireless network providers to install in the City's public rights -of -way their wireless facilities, described and defined in Section 284.002 of the Code as "Micro Network Nodes ", "Network Nodes ", "Node Support Poles ", and "Transport Facilities"; and WHEREAS, as expressly allowed by Section 284.108 of the Code and pursuant to its police power authority reserved in Sec. 284.301 of the Code, the City has enacted a Design Manual for the Installation of Network Nodes, Node Support Poles and Transport Facilities ( "the Design Manual ") in order to meet its fiduciary duty to the citizens of the City, and to give assistance and 1 guidance to wireless telecommunications network providers to assist such companies in the timely, efficient, safe and aesthetically pleasing installation of technologically competitive equipment; and WHEREAS, the City Council desires to regulate the installation of Network Nodes, Network Support Poles and Transport Facilities pursuant to Chapter 284 of the Code in a way that is fair, reasonable and nondiscriminatory. SCIIERTZ, TEXAS THAT: SECTION I FINDINGS OF FACT The forgoing recitals are incorporated into this Right -of. -Way Management Ordinance as findings of fact. SECTION H. USE OF PUBLIC RIGHTS -OF -WAY The City hereby adopts the provisions set forth the in the attached Exhibit A, governing the use of the public right of way by wireless network providers. SECTION III. REPEALING ALL ORDINANCES IN CONFLICT All other ordinances or parts of ordinances inconsistent or in conflict herewith., or to the extent of such inconsistency or conflict are hereby repealed. SECTION IV. SAVINGS CLAUSE This City Council of the City of Schertz, Texas does hereby declare that if any section, subsection, paragraph, sentence, clause, phrase, work or portion of this Ordinance is declared invalid, or unconstitutional, by a court of competent jurisdiction, that, in such event that it would have passed and ordained any and all remaining portions of this Ordinance without the inclusion. 2 of that portion or portions which may be so found to be unconstitutional or invalid, and declare that its intent is to make no portion of this Ordinance dependent upon the validity of any portion thereof, and that all said remaining portions shall continue in full force and effect. SECTION V. COMPLIANCE WITH OPEN MEETINGS ACT It is hereby officially found and determined that the meeting at which this Ordinance was considered was open to the public as required and that public notice of the time, place and purpose of said meeting was given as required by the Open Meetings Act, Chapter 551 of the Texas Government Code. SECTION VI. DECLARATION OF AN EMERGENCY It is hereby officially found and determined that, pursuant to the authority given the City Council under Section 4.09(e) of the Charter of the City of Schertz, an emergency exists requiring this ordinance to be voted upon and rejected or passed at the meeting at which it was first introduced. SECTION VII. EFFECTIVE DATE. This Ordinance shall become effective on September 1, 2017. PASSED AND APPROVED ON THIS THE 29th DAY OF AUGUST 2017. Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (SEAL OF THE CITY) EXHIBIT A USE OF PUBLIC RIGHTS -OF -WAY § 1.01 PURPOSE. The purpose of this chapter is to: (A) Assist the City in the competitively neutral and nondiscriminatory management of the physical use, occupancy and maintenance of its public rights -of. -way by wireless network providers; (B) Secure fair and reasonable compensation for the physical use and occupancy of the public rights -of. -way by wireless network providers in a nondiscriminatory and competitively neutral manner; and (C) Assist the City in protecting the public health, safety, and welfare. § 1.02 GOVERNING LAW. This chapter shall be construed in accordance with Chapter 284 of the Texas Local Government Code ( "the Code ") to the extent not in conflict with the Constitution and laws of the United States or of the State of Texas. § 1.03 DEFINITIONS. For the purpose of this chapter, the definitions found in the City Design Manual for the Installation of Network Nodes, Node Support Poles, and Transport Facilities ( "the Design Manual ") are hereby incorporated into this chapter and shall apply unless the context clearly indicates or requires a different meaning. The following definitions as found in the Design Manual are specifically applicable to this chapter: Applicable codes means: (A) the City uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; and (B) local amendments to those codes to the extent not inconsistent with Chapter 284. City means the City of Schertz, Texas. City Council means the municipal governing body of the City of Schertz, Texas. 4 City Manager means the Manager or his /her designee for the City of Schertz, Texas. Chapter 284 means Texas Local Government Code, Chapter 284. Code means the Texas Local Government Code. Collocate and collocation mean the installation, mounting, maintenance, modification, operation, or replacement of Network Nodes in a public right -of -way on or adjacent to a pole. Highway right -of -way means right -of -way adjacent to a state or federal highway. Historic district means an area that is zoned or otherwise designated as a historic district under municipal, state, or federal law. Law means common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance. Local means within the geographical boundaries of the City. Location means the City - approved and lawfully permitted location for the Network Node. Mayor means the mayor of the City of Schertz, Texas, or designee. Micro network node means a Network Node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 11 inches. Municipal park means an area that is zoned or otherwise designated by the City as a public park for the purpose of recreational activity. Network node means equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term: (A) includes: (i) equipment associated with wireless communications; (ii) a radio transceiver, an antenna, a battery -only backup power supply, and comparable equipment, regardless of technological configuration; and (iii) coaxial or fiber -optic cable that is immediately adjacent to and directly associated with a particular collocation; and (B) does not include: (i) an electric generator; (ii) a pole; or (iii) a macro tower Networkprovider means: (A) a wireless service provider; or (B) a person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider: (i) Network Nodes; or (ii) Node Support Poles or any other structure that supports or is capable of supporting a network node; or (iii) Transport Facilities Node support pole means a pole installed by a network provider for the primary purpose of supporting a Network Node. Permit means a written authorization for the use of the public right -of. -way or collocation on a service pole required from the City before a network provider may perform an action or initiate, continue, or complete a project over which the municipality has police power authority. Pole means a service pole, City -owned utility pole, node support pole, or utility pole. Private easement means an easement or other real property right that is only for the benefit of the grantor and grantee and their successors and assigns. Provider has the same meaning as "Network Provider." Public right -of -way means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the City has an interest. The term does not include: (A) a private easement; or (B) the airwaves above a public right -of -way with regard to wireless telecommunications. Service pole means a pole, other than a City -owned utility pole, owned or operated by the City and located in a public right -of -way, including: (A) a pole that supports traffic control functions; (B) a structure for signage; (C) a pole that supports lighting, other than a decorative pole; and (D) a pole or similar structure owned or operated by a municipality and supporting only 11 network nodes. Street means only the paved portion of the right -of -way used for vehicular travel, being the area between the inside of the curb to the inside of the opposite curb, or the area between the two parallel edges of the paved roadway for vehicular travel where there is no curb. A "Street" is generally part of, but smaller in width than the width of the entire right -of. -way, while a right -of- way may include sidewalks and utility easements. A "Street" does not include the curb or the sidewalk, if either are present at the time of a permit application or if added later. Traffic Signal means any device, whether manually, electrically, or mechanically operated by which traffic is alternately directed to stop and to proceed. Transport facility means each transmission path physically within a public right -of -way, extending with a physical line from a Network Node directly to the network, for the purpose of providing backhaul for network nodes. User means a person or organization which conducts a business over facilities occupying the whole or a part of a public street or right -of -way, depending on the context. Utility pole means a pole that provides: (A) electric distribution with a voltage rating of not more than 34.5 kilovolts; or (B) services of a telecommunications provider, as defined by Chapter 284, Section 51.002, Utilities Code. Wireless service means any service, using licensed or unlicensed wireless spectrum, including the use of Wi -Fi, whether at a fixed location or mobile, provided to the public using a Network Node. Wireless service provider means a person that provides wireless service to the public. Wireless facilities mean "Micro Network Nodes ", "Network Nodes ", "Node Support Poles ", and "Transport Facilities" as defined in Texas Local. Government Code, Chapter 284. § 1.04 USE AND OCCUPANCY OF PUBLIC RIGHTS -OF -WAY. Pursuant to this chapter and subject to the Design Manual and the Code, a wireless network provider has the nonexclusive right to use and occupy the public rights -of -way in the City for the purpose of constructing, maintaining, and operating its facilities used in the provision of Wireless Facilities. The terms of this chapter shall apply to all wireless network providers' facilities used, in whole or part, in the provision of wireless services throughout the City, including any annexed areas upon . the effective date of annexation or the date the City provides the company written notice, whichever date occurs later. § 1.05 COMPLIANCE WITH DESIGN MANUAL AND APPLICABLE CODES. 7 All wireless network providers shall comply with the terms of this right -of -way management ordinance, City applicable codes, and the terms and conditions of the City's Design Manual. § 1.06 GENERAL CONSTRUCTION AND MAINTENANCE REQUIREMENTS. A network provider shall construct and maintain Network Nodes, Network Support Poles and Transport Facilities described in the Code in a manner that does not: (A) Obstruct, impede, or hinder the usual travel or public safety on a public right -of -way; (B) Obstruct the legal use of a public right -of -way by other utility providers; (C) Violate nondiscriminatory applicable codes; (D) Violate or conflict with the City's publicly disclosed public right -of -way design specifications; or (E) Violate the federal Americans with Disabilities Act of 1990 . (ADA). § 1.07 PERMIT APPLICATIONS. (A) Except as otherwise provided in Chapter 284 of the Code, a network provider shall obtain a permit or permits from the City to install a Network Node, Node Support Pole, or Transport Facility in a City public right -of -way. (B) As required by Chapter 284 of the Code, the City shall not require a network provider to perform services for the City for which the permit is sought. (C) A network provider that wants to install or collocate multiple Network Nodes inside the municipal limits of the City is entitled to file a consolidated permit application with the City for not more than 30 Network Nodes and upon payment of the applicable fee(s), receive a permit or permits for the installation or collocation of those Network Nodes. (D) The network provider shall provide the following information in its permit applications: (1) Applicable construction and engineering drawings and information to confirm that the applicant will comply with the City's Design Manual and applicable codes; (2) Any additional information reasonably related to the network provider's use of the public rights -of. -way to ensure compliance with the Design Manual and this chapter; (3) A certificate that the Network Node(s) complies with applicable regulations of the Federal Communications Commission; and certification that the proposed Network Node(s) will E:3 be placed into active commercial service by or for the network provider not later than the 601h day after the date of construction and final testing of each Network Node is completed. (4) A certificate of insurance that provides that the Network Provider and its contractor has at least $1,000,000.00 in general liability coverage. (E) Exception: As provided in Section 284.157 of the Code, a network provider is not required to apply, obtain a permit, or pay a rate to the City for: (1) Routine maintenance that does not require excavation or closing of sidewalks, recreational trails or vehicular lanes in a public right -of -way; (2) Replacing or upgrading a Network Node or Network Pole with a node or pole that is substantially similar in size or smaller and that does not require excavation or closing of sidewalks, recreational trails or vehicular lanes in a public right -of -way; or (3) The installation, placement, maintenance, operation, or replacement of Micro Network Nodes that are strung on cables between existing poles or Node Support Poles in compliance with the National Electrical Safety Code; (4) Notwithstanding Subdivision (E) above, the network provider or its contractors shall notify the City at least 24 hours in advance of work described in this Subdivision (E). § 1.08 INSTALLATION IN HISTORIC DISTRICTS OR DESIGN DISTRICTS A network provider must obtain advance written consent from the City Council before collocating new Network Nodes or installing new Node Support Poles in an area of the City that has been zoned or otherwise designated as a historic district; or an area that has been designated as a design district if the district has decorative poles. The network provider shall be required to comply with the General Aesthetic Requirements described in the City's Design Manual. The City has the authority to designate new historic districts and design districts at a future date. § 1.09 INSTALLATION IN MUNICIPAL PARKS AND RESIDENTIAL AREAS A network provider may not install a new Node Support Pole in a public right -of -way without the City Council's discretionary, nondiscriminatory and written consent if the public right -of way: (1) Is in a municipal park; or (2) Is adjacent to a street or thoroughfare that is: i. Not more than 50 feet wide; and ii. Adjacent to single - family residential lots or other multifamily residences or undeveloped land that is designated for residential use by zoning or deed restrictions. (3) In addition to the above, a network provider installing a Network Node, Node Support Pole or Transport Facilities in a public right -of way shall comply with private deed restrictions and other private restrictions in the area that apply to those facilities. (4) The network provider shall be further required to comply with guidelines set out in the City's Design Manual. § 1.10 MUNICIPAL REVIEW PROCESS BY THE CTIY. (A) Determination of Application Completeness: The City shall determine whether the permit application is complete and notify the applicant of that determination: (1) For Network Nodes and Note Support Poles: no later than 30 days after the date the City receives the permit application. (2) For a Transport Facility: no later than 10 days after the date the City receives the permit application. (B) Approval or Denial of Application: The City shall approve or deny a completed application after the date it is submitted to the City: (l) For Network Nodes: No later than 60 days after the date the City receives the complete application. (2) For Network Support Poles: No later than 150 days after the date the City receives the complete application. (3) For Transport Facilities: No later than 21 days after the City receives the complete application. (C) Basis for Denial of Application: If an application is denied by the City, the City shall document the basis for the denial, including the specific applicable City code provisions or other City rules, regulations, or other law on which the denial is based. The documentation for the denial must be sent by electronic mail to the applicant on or before the date that the City denies the application. 1 (D) Resubmission of Denied Application: The applicant may cure the deficiencies identified in the denied application. (1) The applicant has 30 days from the date the City denies the completed application to cure the deficiencies identified in the denial documentation without paying an additional application fee, other than any fee for actual costs incurred by the City. (2) The City shall approve or deny the revised completed application after a denial not later than the 90th day after the City receives the revised completed application. The City's review shall be limited to the deficiencies cited in the denial documentation. (E) Nondiscriminatory Review: Each completed application shall be processed by the City on a nondiscriminatory basis. § 1.11 TIME OF INSTALLATION. A network provider shall begin installation for which a permit is granted not later than six months after final approval of the application and shall diligently pursue installation to completion. The City Manager may in his /her sole discretion grant reasonable extensions of time as requested by the network provider. § 1.12 APPLICABLE FEES AND RENTAL RATES TO THE CITY. (A) As compensation for the network provider's use and occupancy of the City public rights- of -way, the network provider shall pay application fees and annual public right -of. -way rental rates as set forth in the City's Fee Schedule, which shall not be in lieu of any lawful tax, license, charge, right -of -way permit, use, construction, street cut or inspection fee; or other right -of -way related charge or fee, whether charged to the network provider or its contractor(s) within the City, except the usual general ad valorem taxes, special assessments and sales tax levied in accordance with state law and equally applicable to all general businesses in the City. (B) The City Fee Schedule shall list rates for the following: a. Network Nodes: (1) Application Fee: The application fee shall be for each Network Node for up to but not more than 30 Network Nodes. The fee shall encompass up to five (5) nodes with an additional fee for each node after that on the same application. 11 (2) Annual Public Right -of -Way Rate Fee: The annual public right -of -way shall be per Network Node installed in the City public rights -of -way. (3) Public Right -of -Way Rate Adjustment: As provided in Section 284.054 of the Code, the City may adjust the amount of the annual public right -of -way rate not more than annually by an amount equal to one -half the annual change, if any, in the Consumer Price Index (CPI) for All Urban Consumers for Texas. The City shall provide written notice to each network provider of the new rate; and the rate shall apply to the first payment due to the City on or after the 60th day following the written notice. (C) Node Support Poles: (l) The application fee for a Network Support Pole shall be a separate fee per pole (D) Transport Facilities: (1) An application fee shall be paid for each Transport Facility. (2) The may be assessed a monthly Transport Facility rental rate for each Network Node site located in a public right -of -way. However, no rate is required if the network provider is already paying the City an amount equal to or greater than the amount of other City right -of -way fees for access lines under Chapter 283 of the Code or cable franchise fees under Chapter 66 of the Texas Utility Code. (E) Micro Network Nodes: (l) No application fee is required for a Micro Network Node if the installation is attached on lines between poles or node support poles. (F) Collocation of Network Nodes on Service Poles (1) Subject to the City's Pole Service Agreement, there shall be a fee assessed per year per pole for collocation of Network Nodes on City service poles. (G) City -Owned Municipal Utility Poles: (1) A network provider shall pay an annual pole attachment rate for the collocation of a Network Node supported by or installed on a City -owned utility pole based upon the pole attachment rate consistent with Section 54.024 of the Texas Utilities Code, applied on a per -foot basis. (H) The City shall not seek or accept in -kind services in lieu of or as additional payment or consideration from any user of the public rights -of -way for use of the public rights -of -way. 12 § 1.13 INDEMNITY. As provided in Section 284.302 of the Code, a wireless Network Provider shall indemnify, defend, and hold the City harmless from and against all liability, damages, cost, and expense, including reasonable attorney's fees, arising from injury to person or property proximately caused by the negligent act or omission of the Network Provider. The City shall promptly notify the Network Provider of any claims, demands, or actions ( "claims ") covered by this indemnity after which the Network Provider shall defend the claims. The Network Provider shall have the right to defend and compromise the claims. The City shall cooperate in the defense of the claims. The foregoing indemnity obligations shall not apply to claims arising solely from the negligence of City; however, they shall apply in the case of all claims which arise from the joint negligence of the Network Provider and the City; provided that in such cases, the amount of the claims for which the City shall be entitled to indemnification shall be limited to that portion attributable to the Network Provider. Nothing in this section shall be construed as waiving any governmental immunity available to the City under state law or waiving any defenses of the parties under state law. § 1.14 EFFECT ON OTHER UTILITIES AND TELECOMMUNICATION PROVIDERS. Nothing in this Ordinance shall govern attachment of Network Nodes on poles and other structures owned or operated by investor -owned electric utilities, electric cooperatives, telephone cooperatives, or telecommunication providers. 13 Agenda No. 11 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 . Department: Public Works Subject: Ordinance No. 17 -M -33 - an ordinance by the city of Schertz, Texas, approving a design manual for the installation of network nodes, node support poles and transport facilities; and approving a pole attachment agreement regulating the installation of network nodes and transport facilities on city service poles and utility poles; declaring governing law; providing repealing and savings clauses; providing a Texas open meetings act clause; declaring an emergency and providing an effective date of September 1, 2017. (First and Final Reading) BACKGROUND The 85th Texas Legislature passed Senate Bill 1.004 that establishes uniform regulations that cities can utilize in the regulation of wireless network equipment being placed in the public right of way. This legislation restricts what many communities were already doing, but does establish some very clear guidelines that cities who desire to regulate this usage of the right of way to follow. Staff has brought forth a Right of Way Management Ordinance for Council approval. This ordinance is a follow up to that management ordinance and establishes both a Design Manual for network nodes, node poles and transport facilities as well as adopting a collocation pole usage agreement. The Design Manual establishes, within the bounds of the legislation, the requirements we can place upon wireless network providers as they seek to deploy their technology in the right of way. These placements will have to follow the design manual or the placement will not be approved. The pole usage agreement establishes what is required of the wireless network providers who desire to utilize poles belonging to the City to mount their equipment. We would like to encourage the usage of some of our poles where appropriate to avoid the providers from placing their own poles next to ours and further cluttering up the right of way. This usage agreement would be used by all wireless providers desiring to utilize City poles to insure a non- discriminatory environment for all wireless providers as required by legislation. GOAL To establish a Right of Way Design manual for the placement of wireless network nodes, node support poles and transport facilities. Additionally, to adopt a uniform pole attachment agreement for all wireless network providers who desire to utilize City poles for their network equipment installation. COMMUNITY BENEFIT To regulate to the extent allowed by law the placement of wireless network equipment within the public right of way. This insures the public health, safety and welfare of our citizens while working to maintain an attractive community in the public spaces. SUMMARY OF RECOMMENDED ACTION Staff recommends City Council approve this Ordinance to a right of way design manual and a uniform pole usage agreement. FISCAL IMPACT There is no fiscal impact to this ordinance. This ordinance does allow for fees to be collected for certain things as established by State law. The amount of this revenue will be minimal. RECOMMENDATION Staff recommends Council approve on first and final reading Ordinance No. 17 -M -33 ATTACHMENTS Ordinance No. 1.7 -M -33 ORDINANCE NO. 17 -M -33 AN ORDINANCE BY THE CITY OF SCHERTZ, TEXAS, APPROVING A DESIGN MANUAL FOR THE INSTALLATION OF NETWORK NODES, NODE SUPPORT POLES AND TRANSPORT FACILITIES; AND APPROVING A POLE ATTACHMENT AGREEMENT REGULATING THE INSTALLATION OF NETWORK NODES AND TRANSPORT FACILITIES ON CITY SERVICE POLES AND UTILITY POLES; DECLARING GOVERNING LAW; PROVIDING REPEALING AND SAVINGS CLAUSES; PROVIDING A TEXAS OPEN MEETINGS ACT CLAUSE; DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE OF SEPTEMBER 1, 2017. WHEREAS, the City of Schertz, Texas ( "City ") recognizes that the State of Texas has delegated to the City the fiduciary duty, as a trustee, to manage the public right -of -way for the health, safety, and welfare of the public to Texas municipalities; and WHEREAS, Chapter 284 of the Texas Local Government Code ( "the Code ") allows certain wireless network providers to install in the public rights -of. -way their wireless facilities, described and defined in Section 284.002 of the Code as "Micro Network Nodes ", "Network Nodes ", "Node Support Poles ", and "Transport Facilities "; and WHEREAS, as expressly allowed by Section 284.108 of the Code and pursuant to its police power authority reserved in Sec. 284.301 of the Code, the City desires to enact a Design Manual by the City of 'Schertz, Texas for the Installation of Network Nodes, Node Support Poles and Transport Facilities ( "the Design Manual ") in order to meet its fiduciary duty to the citizens of the City, and to give assistance and guidance to wireless telecommunications network providers to assist such companies in the timely, efficient, safe and aesthetically pleasing installation of technologically competitive equipment; and WHEREAS, the City Council desires to approve a Pole Attachment Agreement by which wireless telecommunication network providers may attach and collocate their network nodes on city service and utility poles subject to the Code, the Design Manual, and the City Right -of. -Way Management Ordinance. 1 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL FOR THE CITY OF SCHERTZ, TEXAS THAT: SECTION I FINDINGS OF FACT The forgoing recitals are incorporated into this Ordinance as true and correct findings of fact. SECTION II. APPROVING DESIGN MANUAL The City Council hereby approves the Design Manual by the City of Schertz, Texas for the Installation of Network Nodes and Node Support Poles, which is attached here as Exhibit "A." SECTION HI. APPROVING POLE ATTACHMENT AGREEMENT The City Council hereby approves the Pole Attachment Agreement, which is attached here as Exhibit `B." SECTION IV. GOVERNING LAW This Ordinance shall be construed in accordance with Chapter 284 of the Texas Local. Government Code ( "the Code ") to the extent not in conflict with the Constitution and laws of the United States or of the State of Texas. SECTION V. REPEALING ALL ORDINANCES IN CONFLICT All other ordinances or parts of ordinances inconsistent or in conflict herewith, or to the extent of such inconsistency or conflict are hereby repealed. SECTION VI. SAVINGS CLAUSE This City Council of the City of Schertz, Texas does hereby declares that if any section, subsection, paragraph, sentence, clause, phrase, work or portion of this Ordinance is declared invalid, or unconstitutional, by a court of competent jurisdiction, that, in such event that it would 2 have passed and ordained any and all remaining portions of this Ordinance without the inclusion of that portion or portions which may be so found to be unconstitutional or invalid, and declare that its intent is to make no portion of this Ordinance dependent upon the validity of any portion thereof, and that all said remaining portions shall continue in full force and effect. SECTION V. COMPLIANCE WITH OPEN MEETINGS ACT It is hereby officially found and determined that the meeting at which this Ordinance was considered was open to the public as required and that public notice of the time, place and purpose of said meeting was given as required by the Open Meetings Act, Chapter 551 of the Texas Government Code. SECTION VI. DECLARATION OF AN EMERGENCY It is hereby officially found and determined that, pursuant to the authority given the City Council under Section 4.09(e) of the Charter of the City of Schertz, an emergency exists requiring this ordinance to be voted upon and rejected or passed at the meeting at which it was first introduced. SECTION VII. EFFECTIVE DATE. This Ordinance shall become effective on September 1, 2017. PASSED AND APPROVED ON THIS THE 29th DAY OF AUGUST 2017. . Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (SEAL OF THE CITY) Design Manual by the City of Schertz, Texas for the Installation of Network Nodes, Node Support Poles and Transport Facilities pursuant to Tex. Loc. Gov. Code, Chapter 284. ���� '�°��^ ��� Table of SECTION LPURPOSE AND APPLJCA8lLO��-'---'---'---'-------'------'-----3 8ECTlOY�2.DEFl|Vl7l0yV3-------------------------------------------------..3 S8O70N8. PROHIBITED AND PREFERRED LOCATIONS OP/�lCROP�B7\*O0{y�ODE,yVE7VVO0{ y�ODf�y�ODBSUPPORT POLE AND RELATED GROUND EODl9D�ENT-----------------.7 SECTION 4`CDlDELll�ESOl�PLAC8Y�8N7.---'---'---'---'---'---'---'---'---11 SECT{U}H5. GENERAL AESTHETIC 88OD{RED�ENTS-------------------------------16 SECTION 6. ELECTRICAL SUPPLY -------------------------------------------17 SECTION 7. lNSDIDLNCI,l0DEKYl�lIY,BONDING AND SEC\}DD-YDEPOSITS --------------.l7 SECTION H.RE00{BEy0ENTSl0 REGARD TOREK4O\&A�BB9LACEY0E07,REPL&CBy�BN7, MAINTENANCE AND REPAIR ----------------------------------------------.17 SECTION 9.11�STAL[AT}ON AND INSPECTIONS ----------------------------------19 SECTION 1[\REODDREI�E0TS UPON AOANDOy�ME0TOF OBSOLETE K8lC0}0E7VVO8KNODE, NET\�OBKNODE, yVOD8SUPPORT POLE AND RELATED GROUND B0DlPY�EN1[-----------..19 SECTION 1l.CE0EIQ�L PROVISIONS -----------------------------------------2I SECTION 13.AD0ONUSTDATD/E HEARING -REQUEST FOR EXED�PT[UlN-----------------34 SECTION I3-I9 RESERVED ............................................................................................................................................... 23 N' SECTION 1. PURPOSE AND APPLICABILITY. The City of Schertz, Texas ( "City ") recognizes that the State of Texas has delegated to the City the fiduciary duty, as a trustee, to manage the public right -of. -way for the health, safety, and welfare of the public to Texas municipalities. Purpose: Loc. Gov. Code, Chapter 284 allows certain wireless Network Providers to install in the public rights -of. -way their wireless facilities, described and defined in Tex. Loc. Gov. Code, Chapter 284, Sec. 284.002 as "Micro Network Nodes ", "Network Nodes ", and "Node Support Poles ". As expressly allowed by Tex. Loc. Gov. Code, Chapter 284, Section 284.108, and pursuant to its police power authority reserved in Sec. 284.3011, the City enacts these Design. Guidelines in order to meet 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. Applicability: This Design Manual is for siting and criteria for the installation Wireless Facilities, including Micro Network Nodes, Network Nodes, Node Support Poles and related ground equipment being installed pursuant to Loc. Gov. Code, Chapter 284 This Design Manual shall apply to any sitings, installations, collocations in, on, over or under the public rights -of. -way of Network nodes, Node support poles, Micro network nodes, Transport Facilities, Distributed Antenna Systems, microwave communications or other Wireless Facilities, by whatever nomenclature, whether they are installed pursuant to Chapter 284, or installed pursuant to an agreement as agreed to and consented to by the City in its discretion, or installed as may otherwise be allowed by state law. City Rights -of -Way Management Ordinance: A Network Provider shall comply with the City's Rights -of -Way Management Ordinance except where in conflict with this Design Manual or Chapter 284, Subchapter C. SECTION 2. DEFINITIONS. The definitions as used in Tex. Loc. Gov. Code, Chapter 284, Sec. 284.002 shall be used in this Design Manual, unless otherwise noted in this Section 2, below.2 Abandon and its derivatives means the facilities installed in the right -of -way (including by way of example but not limited to: poles, wires, conduit, manholes, hndholes, cuts, network nodes and node support poles, or portion thereof) that have been left by Provider in an unused or non- functioning condition for more than 1.20 consecutive calendar days unless, after notice to Provider, Provider has established to the reasonable satisfaction of the City that the applicable facilities, or portion thereof, is still in active use. Antenna means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services. Applicable codes means: (A) uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; and (B) local amendments to those codes to the extent not inconsistent with Chapter 284. Assimilation means the process by which the City allows for the placement of Network Nodes on poles within the public ROW by a Network Provider within the scope of SB 1004. Broadband Operations Representative Group means any Network provider within the scope of SB 1004. City means the City of Schertz, Texas or its lawful successor. City Council means the municipal governing body of the City of Schertz, Texas. City Manager means the Manager or his /her designee for the City of Schertz, Texas, or designee. Chapter 284 means Tex. Loc. Gov. Code, Chapter 284. The Collective means the entire system of network providers and network nodes, in total, by all providers and in all locations within the scope of SB 1004. Collocate and collocation mean the installation, mounting, maintenance, modification, operation, or replacement of network nodes in a public right -of -way on or adjacent to a pole. Concealment, Cloaking Device or Camouflaged means any Wireless Facility or Pole that is covered, blended, painted, disguised, camouflaged or otherwise concealed such that the Wireless Facility blends into the surrounding environment and is visually unobtrusive as allowed as a condition for City advance approval under Chapter 284, Sec. 284.1.05 in Historic or Design Districts. A Concealed, Cloaked or Camouflaged Wireless Facility or Pole also includes any Wireless Facility or Pole conforming to the surrounding area in which the Wireless Facility or Pole is located and may include, but is not limited to hidden beneath a fagade, blended with surrounding area design, painted to match the supporting area, or disguised with artificial tree branches or as owls or other appropriate Bird of Prey. Decorative pole means a streetlight pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specially designed informational or directional signage or temporary holiday or special event attachments, have been placed or are permitted to be placed according to nondiscriminatory municipal codes. Design District means an area that is zoned, or otherwise designated by municipal code, and for which the city maintains and enforces unique design and aesthetic standards on a uniform and EI Highway Night -of -way means right -of -way adjacent to a state or federal highway. Historic district means an area that is zoned or otherwise designated as a historic district under municipal, state, or federal law. Law means common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance. Local means within the geographical boundaries of the City. Location means the City approved and lawfully permitted location for the Network Node. Macro tower means a guyed or self - supported pole or monopole greater than the height parameters prescribed by Chapter 284, Section 284.103 and that supports or is capable of supporting antennas. Micro network node means a network node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 1.1 inches. Municipal park means an area that is zoned or otherwise designated by municipal code as a public park for the purpose of recreational activity. Municipally owned utility pole means a utility pole owned or operated by a municipally owned utility, as defined by Section 1.1.003, Utilities Code, and located in a public right -of -way. MUTCD means Manual of Uniform Traffic Control Devices. Network node means equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term: (A) includes: (i) equipment associated with wireless communications; (ii) a radio transceiver, an antenna, a battery -only backup power supply, and comparable equipment, regardless of technological configuration; and (iii) coaxial or fiber -optic cable that is immediately adjacent to and directly associated with a particular collocation; and (B) does not include: (i) an electric generator; (ii) a pole; or (iii) a macro tower Network provider means: (A) a wireless service provider; or (B) a person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider: (i) network nodes; or (ii) node support poles or any other structure that supports or is capable of supporting a network node. Next Generation means future broadband technologies not yet identified in this Design Manual. Node support pole means a pole installed by a network provider for the primary purpose of supporting a network node. Permit means a written authorization for the use of the public right -of. -way or collocation on a service pole required from a municipality before a network provider may perform an action or initiate, continue, or complete a project over which the municipality has police power authority. Pole means a service pole, municipally owned utility pole, node support pole, or utility pole. Private easement means an easement or other real property right that is only for the benefit of the grantor and grantee and their successors and assigns. Provider has the same meaning as "Network Provider." Public right -of -way means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the municipality has an interest. The term does not include: (A) a private easement; or (B) the airwaves above a public right -of -way with regard to wireless telecommunications. Public right -of =way management ordinance means an ordinance that complies with Chapter 284, Subchapter C. SCADA or Supervisory Control and Data Acquisition systems means a category of software application programs and hardware used by the City for process control and gathering of data in real time from remote locations in order to monitor equipment and conditions of the City public 6 water and wastewater utility facilities. These systems may utilize both cable and wireless communications. Service pole means a pole, other than a municipally owned utility pole, owned or operated by a municipality and located in a public right -of -way, including: (A) a pole that supports traffic control functions; (B) a structure for signage; (C) a pole that supports lighting, other than a decorative pole; and (D) a pole or similar structure owned or operated by a municipality and supporting only network nodes. Small cell shall be included as a type of "Network Node." Street means only the paved portion of the right -of -way used for vehicular travel, being the area between the inside of the curb to the inside of the opposite curb, or the area between the two parallel edges of the paved roadway for vehicular travel where there is no curb. A "Street" is generally part of, but smaller in width than the width of the entire right -of -way, while a right -of- way may include sidewalks and utility easements, a "Street" does not. A "street" does not include the curb or the sidewalk, if either are present at the time of a permit application or if added later. SWPPP shall mean Storm Water Pollution Prevention Plan. TAS means Texas Accessibility Standards. Traffic Signal means any device, whether manually, electrically, or mechanically operated by which traffic is alternately directed to stop and to proceed. Transport facility means each transmission path physically within a public right -of -way, extending with a physical line from a network node directly to the network, for the purpose of providing backhaul for network nodes. Underground Requirement Area shall mean means an area where poles, overhead wires, and associated overhead or above ground structures have been removed and buried or have been approved for burial underground pursuant to municipal ordinances, zoning regulations, state law, private deed restrictions, and other public or private restrictions, that prohibit installing aboveground structures in a public right -of.- -way. User means a person or organization which conducts a business over facilities occupying the whole or a part of a public street or right -of -way, depending on the context. Utility pole means a pole that provides: (A) electric distribution with a voltage rating of not more than 34.5 kilovolts; or (B) services of a telecommunications provider, as defined by Chapter 284, Section 51.002, Utilities Code. Wireless service means any service, using licensed or unlicensed wireless spectrum, including the use of Wi -Fi, whether at a fixed location or mobile, provided to the public using a network node. 7 Wireless service provider means a person that provides wireless service to the public. Wireless facilities mean "Micro Network Nodes," "Network Nodes," and "Node Support Poles" as defined in Texas Local Government Code Chapter 284. SECTION 3. PROHIBITED AND PREFERRED LOCATIONS OF MICRO NETWORK NODE, NETWORK NODE, NODE SUPPORT POLE AND RELATED GROUND EQUIPMENT. A. Prohibited or Restricted Areas for Certain Wireless facilities, except with Separate City Agreement or Subject to Concealment Conditions. 1. Municipal Parks and Residential Areas. In accordance with Chapter 284, Sec. 284.104 (a), a Network Provider may not install a Node Support Pole in a public right -of -way without the City's discretionary, nondiscriminatory, and written consent if the public right -of -way is in a Municipal park or is adjacent to a street or thoroughfare that is: a. not more than 50 feet wide of paved street surface, being the area measured as the shortest distance between the inside of the curb to the inside of the opposite curb, or the area measured as the shortest distance between the two parallel edges of the paved roadway for vehicular travel where there is no curb; and b. adjacent to single - family residential lots or other multifamily residences or undeveloped land that is designated for residential use by zoning or deed restrictions. 1.1 In accordance with Chapter 284, Sec. 284.1.04 (b), a Network Provider installing a Network Node or Node Support Pole in a public right -of -way described above shall comply with private deed restrictions and other private restrictions in the area that apply to those facilities. 1.2 Each permit application shall disclose if it is within a Municipal Park and Residential Areas as described above. 2. Design Districts and Historic Districts. In accordance with Chapter 284, Sec. 284.105, a Network Provider must obtain advance written approval from the City before collocating Network Nodes or installing Node Support Poles in a Design District with Decorative Poles or in an area of the City zoned or otherwise designated as a Design District and/or or Historic District. 2.1. As a condition for approval of Network Nodes or Node Support Poles in Design Districts with Decorative Poles or in a Historic District, the City shall require reasonable design or Concealment measures for the Network Nodes or Node Support Poles. Therefore, any request for installations in a Design District with Decorative Poles or in a Historic District, must be accompanied with proposed Concealment measures in the permit applications. 2.2. The City request that a Network Provider explore the feasibility of using Camouflage measures to improve the aesthetics of the Network Nodes, Node Support Poles, or related ground equipment, or any portion of the nodes, poles, or equipment, to minimize the impact to the aesthetics in Design Districts or in an Historic District. 2.3. A Network Provider shall comply with and observe all applicable City, State, and federal historic preservation laws and requirements. 2.4. Each permit application shall disclose if it is within a Design District with Decorative Poles or in an area of the City zoned or otherwise designated as a Design District or Historic District. 3. Historic Landmarks. A Network Provider is discouraged from installing a Network Node or Node Support Pole within 300 feet of a historic site or structure or Historic Landmark recognized by the City, state or federal government (see, for example, and not limited to §442.001(3) of the Texas Government Code, and 16 U.S.C. §470), as of the date of the submission of the permit. It is recommended that each permit application disclose if it is with 300 feet of such a structure. 4. Compliance with Undergrounding Requirements. In accordance with Chapter 284, Sec. 284.107, a Network Provider shall comply with nondiscriminatory undergrounding requirements, including municipal ordinances, zoning regulations, state law, private deed restrictions, and other public or private restrictions, that prohibit installing aboveground structures in a public right -of- way without first obtaining zoning or land use approval. 4.1 Areas may be designated from time to time by the City as Underground Requirement Areas in accordance with filed plats, and or conversions of overhead to underground areas, as may be allowed by law. 4.2 Each permit application shall disclose if it is within an area that has undergrounding requirements. B. Least preferable locations. 1. Residential Areas and Parks. A Network Provider is discouraged from installing a Network Node on an existing pole in a public right -of -way without written consent from the City Council if the public right -of -way is located in or adjacent to a street or thoroughfare that is adjacent to a municipal park or single - family residential lots or other multifamily residences or undeveloped land that is designated for residential use by zoning or deed restrictions. 1.1 In accordance with Chapter 284, Sec. 284.104 (b) a Network Provider installing a Network Node or a Node Support Pole in a public right -of. -way shall comply with private deed restrictions and other private restrictions in the area that apply to those facilities. It is the responsibility of the Network Provider to ensure full compliance with all private deeds restrictions. Such private deed restrictions, however, are not enforced by the City and remain the enforcement responsibility of the party with standing and not the City. 2. Historic Districts and Design Districts. A Network Provider is discouraged from installing a Network Node or a Node Support Pole in the public right -of -way in any area designated M by the City as a Design Districts or in an area of the City zoned or otherwise designated as a Historic District unless such a Network Node or a new Node Support Pole is camouflaged. C. Most preferable locations 1. Industrial areas if not adjacent to a Municipal Park, Residential area, Historic District or Design District. 2. Highway Rights -of- -Way areas if not adjacent to a Municipal Park, Residential area, Historic District or Design District. 3. Retail and Commercial areas if not adjacent to a Municipal Park, Residential area, Historic District or Design District. D. Designated Areas. 1. The City Council may designate an area as a Historic District or a Design District under Chapter 284.105 at any time. 2. The failure to designate an area in this Chapter shall not mean that such an area is not within a defined district, if so designated by the City Council. Future areas may be designated as one of these Districts at any time. Such a designation does not require a zoning case. 3. While not required under Chapter 284 to designate Underground Compliance Areas to prohibit above ground Wireless facilities, the City may also, from time to time, also designate Underground Compliance Areas. E. Exceptions The City by its discretionary consent and agreement may grant exceptions to the above prohibited locations and sizes, but only in a non - exclusive, and non - discriminatory manner, as allowed or required by Chapter 284, Sec. 284.109 and Sec. 284.110. F. Order of Preference regarding Network Node attachment to existing facilities and New Node Support Poles. 1. Existing telephone or electrical lines between existing utility poles. Micro Network Nodes shall only be lashed on existing telephone or electrical lines between existing utility poles (electric poles or telephones poles), with notice to the pole owner as required by the Federal Pole Attachment Act, and not placed on Utility Poles, Node Support Poles or Service Poles. 2. Existing Utility Poles (electric poles or telephones poles), shall be the preferred support facility for Network Nodes and related ground equipment. 3. Municipal Service Poles: 1.0 a. Non - decorative street lights with a height of more than 20 feet. b. Traffic signal structures when such installation will not interfere with the integrity of the facility and will not interfere with the safety of public and in accordance with an agreement as allowed by Chapter 284, Sec. 285.056 and Sec. 284.101 (a) (3), and (b). c. Street signage shall be a low priority use for attachment of a Network Node. d. Other municipal Service pole use is discouraged. 4. New node support poles shall be the least preferred type of allowed facility for attachment of Network Nodes. 5. Ground Equipment. Ground equipment should be minimal and the least intrusive. SECTION 4. GUIDELINES ON PLACEMENT. A. Generally. In accordance with Chapter 284.1.02, a Network Provider shall construct and maintain Network Nodes and Node Support Poles in a manner that does not: 1► 1. obstruct, impede, or hinder the usual travel or public safety on a public right -of- 2. obstruct the legal use of a public right -of -way by other utility providers; 3. violate nondiscriminatory applicable codes; 4. violate or conflict with the City's publicly disclosed public right -of -way management ordinance or this Design Manual. 5. violate the federal Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.). B. General Requirements and Information: 1. Size Limits. Network Providers shall provide detailed drawings, with calculations to show strict conformity to the size limitations as set forth in Chapter 284, in accordance with, but not limited to Chapter 284, Sec. 284.002, size of a Micro Network Node, Sec. 284.003, Size of Network Nodes, and Sec. 284.103, Max. pole height, with each application and with each request for a permit for each location.3 2. State and Federal Rights -of -way permit. If the project lies within a Highway Right -of -Way, the applicant must provide evidence of a permit from the State or Federal Government. 3. Confirmation of non - interference with City Safety Communication or SCADA Networks. a. The Network Provider needs to provide analysis that the proposed network node shall not cause any interference with City public safety radio system, traffic signal light system, SCADA system, or other city safety communications components in accordance with Chapter 284, Sec. 284.304. b. It shall be the responsibility of the Network Provider to evaluate, prior to making application for permit, the compatibility between the existing City infrastructure and Provider's proposed Network Node. A Network Node shall not be installed in a location that causes any interference. Network Nodes shall not be allowed on City's public safety radio infrastructure. 4. Improperly Located Network Node facilities, Node Support Poles and related ground equipment: a. Improperly Located Network Node facilities, Node Support Poles and related ground equipment shall not impede pedestrian or vehicular traffic in the Right -of -Way. If any Network Node facilities, Node Support Poles or ground equipment is installed in a location that is not in accordance with the plans approved by the City Manager or his /her designee and impedes pedestrian or vehicular traffic or does not comply or otherwise renders the Right -of -Way non - compliant with applicable Laws, including the American Disabilities Act, then Network Provider shall promptly remove the Network Node facilities, Node Support Poles or ground equipment. b. Notice to Remove unauthorized facilities and relocate and penalty: After 30 days' notice to remove of Network Node facilities, Node Support Poles or ground equipment that is located in the incorrect permitted location, if not relocated the Network Provider shall be subject to a penalty of $500.00 per day penalty until the Network Node facilities, Node Support Poles or ground equipment is relocated to the correct area within the permitted Location, regardless of whether or not the Network Provider's contractor, subcontractor, or vendor installed the Network Node facilities, Node Support Poles or ground equipment in strict conformity with the City Rights -of -way management ord., and other applicable ordnances concerning improperly located facilities in the rights -of -way. B. Underground Requirement Areas. 1. In accordance with Chapter 284.107, a Network Provider shall, in relation to installation for which the City approved a permit application, comply with nondiscriminatory undergrounding requirements, including municipal ordinances, zoning regulations, state law, private deed restrictions, and other public or private restrictions, that prohibit installing aboveground structures in a public right -of -way without first obtaining zoning or land use approval. 2. If a location is designated by the City to transits to be an Underground Requirement Area, then a Network Provider's permit for the location of the Micro Network Node, Network Node, Node Support Pole, and related ground equipment at such location will be revoked 90 days after the designation, with removal of said the Micro Network Node, Network Node, Node Support Pole, and related ground equipment at such location within 90 days of such designation, or as otherwise reasonably allowed by the City for the transition of other overhead facilities. 3. Before commencing underground installation, 81.1 Dig Tess must be called so that the area can be flagged for underground utilities. 1.2 C. Network Node facilities placement: 1. Right -of = Way: Network Node facilities, Node Support Poles and related ground equipment shall be placed, as much as possible, within two feet of the outer edge of the Right -of -Way line to minimize any obstruction, impediment, or hindrance to the usual travel or public safety on a public right -of. -way. 2. Height above ground. Network Node attachments to a pole shall be installed at least eight (8) feet above the ground in accordance with Chapter 284, Sec. 284.108, and if a Network Node attachment is projecting toward the street, for the safety and protection of the public and vehicular traffic, the attachment shall be installed no less than sixteen (16) feet above the ground. 3. Protrusions. In accordance with Chapter 284, Sec. 284.003 (a) (1) (C), Sec. 284.003 (a) (2) (C) and Sec. 284.003 (a) (3) (B) no protrusion from the outer circumference of the existing structure or pole shall be more than two (2) feet. 4. Limit on number of'Network Nodes per Site. There shall be no more than one Network Node on any one Pole. D. New Node Support Poles. 1. New Node Support Poles Spacing. New node support poles shall be spaced apart from existing utility poles or Node Support poles at the same as the spacing between utility poles in the immediate proximity, but no less than at a minimum 300 feet from a utility pole or another Node Support Pole to minimize the hazard of poles adjacent to road ways and to minimize effect on property values and aesthetics on the area. 2. Height of Node Support Poles or modified Utility Pole. In accordance with Chapter 284, Sec. 284.1.03 a Node support pole or modified Utility Pole may not exceed the lesser of: a. 1.0 feet in height above the tallest existing utility pole located within 500 linear feet of the new pole in the same public right -of -way; or b. 55 feet above ground level. E. Ground Equipment. 1. Ground Equipment near street corners and intersections: Ground equipment should be minimal and the least intrusive. In accordance with Chapter 284.102 (1), to minimize any obstruction, impediment, or hindrance to the usual travel or public safety on a public right -of -way the maximum line of sight required to add to safe travel of vehicular and pedestrian traffic and in order to maximize that line of sight at street corners and intersections and to minimize hazards at those locations, ground equipment may not be installed within 250 feet of a street corner or a street intersection. 2. Ground Equipment near Municipal Parrs. For the safety of Municipal park patrons, particularly small children, and to allow full line of sights near Municipal park property, the Network Provider shall not install Ground Equipment in a Right -of -Way that is within a Park or within 250 feet of the boundary line of a Park, unless approved by the City Manager or his /her designee in writing. 13 3. Minimize Ground equipment density: In accordance with Chapter 284, Sec. 284.102 (1) to enhance the safety requirements of line of sight of pedestrians, particularly small children, the City Manager or his/her designee, or designee, may deny a request for a proposed Location if the Network Provider installs Network Node ground equipment where existing ground equipment within 300 feet already occupies a footprint of 25 sq. ft. or more. 4. Water, Sewer and Storm Drainage Lines: Special precautions must be taken where underground fiber optic cable is installed in public street right -of -ways commonly used for utility corridors. a. Underground utilities and service connections must be identified prior to excavation. "811", "Dig Alert," "One Call," "Dig Tess," or similar underground utility contractor must be contacted to identify the locations of subsurface utilities. b. If temporary disruption of service is required, the installation contractor must notify the City, the service provider, and customers at least 24 hours in advance. No service on such lines may be disrupted until prior approval from the City and the service provider. c. At locations where the fiber optic cable will cross other subsurface utilities or structures, the cable must be installed to provide a minimum of 12 inches of vertical clearance between it and the other subsurface utilities or structures, while still maintaining the other applicable minimum depth requirement. To maintain the minimum depth requirement, the cable must be installed under the existing utility. If the minimum 12 -inch clearance cannot be obtained between the proposed cable facility and the existing utility, the fiber optic cable must be encased in steel pipe of avoid future damage. d. Existing Water Lines: No communication lines shall be placed on top of a water line but may be placed to the side of a water line at least 4 feet from the center line of the water line but at least 3 '/2 feet from the edge of the water line unless the line is greater than 36" and then the placement shall be at least 6 Meet from the edge of the water line. When crossing a water line, a 12 -inch vertical or horizontal clearance must be maintained. Poles must be at least 3 % feet from the outside edge of a water line unless that water line is greater than 36" diameter and then the placement shall be at least 6 �/z feet from the outside edge of the water line. e. Existing Sewer Lines: No communication lines shall be placed on top of a sewer line but may be placed to the side of a sewer line at least 4 feet from the center line of the sewer line but at least 3 '/2 feet from the edge of the sewer line unless the line is greater than 36" and then the placement shall be at least 6 % feet from the edge of the sewer line. When crossing a sewer 14 line, a 12 -inch vertical or horizontal clearance must be maintained. Poles must be at least 3 feet from a sewer line. f. Existing Storm Drainage Lines: No communication lines shall be placed on top of a storm drainage line but may be placed to the side of a storm drainage line at least 4 feet from the center line of the storm drainage line but at least 3 1/2 feet from the edge of the storm drainage line unless the line is greater than 36" and then the placement shall be at least 6'/2 feet from the edge of the storm drainage line. When crossing a storm drainage line, a 12 -inch vertical or horizontal clearance must be maintained. Poles must be at least 3 feet from a storm drainage line. 5. Blocking streets, roads, alleys or lanes: Texas Department of Transportation (TxDOT) standards must be followed for work zone areas that will block streets, roads, alleys or lanes. A traffic plan must be submitted to the City prior to construction. F. Municipal Service Poles: 1. In accordance with Agreement: Installations on all Service Poles shall be in accordance with an agreement as allowed by Chapter 284, Sec. 285.056 and Sec. 284.1.01. (a) (3), and (b). 2. Required industry standard pole load analysis: Installations on all Service Poles shall have an industry standard pole load analysis completed and submitted to the municipality with each permit application indicating that the Service Pole to which the Network Node is to be attached will safely support the load, in accordance with Chapter 284.108. 3. Height of attachments: All attachments on all Service Poles shall be at least 8 feet above grade, in accordance with Chapter 284, Sec. 285.108 (a) (1) - (2) and if a Network Node attachment is projecting toward the street, for the safety and protection of the public and vehicular traffic, the attachment shall be installed no less than sixteen (16) feet above the ground. 4. Installations on Traffic Signals: Installations on all Traffic signal structures must not interfere with the integrity of the facility in any way that may compromise the safety of the public and must be in accordance with an agreement as allowed by Chapter 284, Sec. 285.056 and Sec. 284.101 (a) (3), and (b). Installation of Network Node facilities on any traffic signal structures shall: a. Be encased in a separate conduit than the traffic light electronics; b. Have a separate electric power connection than the traffic signal structure; and c. Have a separate access point than the traffic signal structure; and 5. Installations on Street signage: Installations on all street signage structures must not interfere with the integrity of the facility in any way that may compromise the safety of the public. Installation of Network Node facilities on any street signage structures that has electrics shall: 1.5 a. Be encased in a separate conduit than any City signage electronics; b. Have a separate electric power connection than the signage structure; c. Have a separate access point than the signage structure; and 6. Restoration of City facilities and private property: The Network Provider shall be responsible for repairing any damage to any street, street right -of -way, ditch or any structure to its original condition immediately upon completing the installation. Any change to the slope of the land must be remedied, and there must be replacement of top soil and grass to its original and also non - erosive condition. SECTION 5. GENERAL AESTHETIC REQUIREMENTS A. Concealment. 1. Concealment of Network Nodes and Node support poles shall be required by the City in Design Districts with Decorative Poles and in Historic Districts pursuant to Chapter 284.105. 2. It is also the City's preference that all new node support poles be camouflaged, except those located in an area zoned or predominantly industrial area. Companies shall submit their proposal for camouflage with the permit application. 3. The Network Node facilities shall be concealed or enclosed as much as reasonably possible in an equipment box, cabinet, or other unit that may include ventilation openings. External cables and wires hanging off a pole shall be sheathed or enclosed in a conduit, so that wires are protected and not visible or visually minimized to the extent possible in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 4. The Network Node facilities shall be concealed or enclosed as much as possible in an equipment box, cabinet, or other unit that may include ventilation openings. External cables and wires hanging off a pole shall be sheathed or enclosed in a conduit, so that wires are protected and not visible or visually minimized to the extent possible, except to the extent not consistent with Chapter 284. B. New Node Support Pole Spacing. New node support poles shall be at a minimum 300 feet from a utility pole or another Node Support Pole to minimize the hazard of poles adjacent to road ways and to minimize effect on property values and aesthetics on the area. C. Minimize Ground Equipment Concentration. In order to minimize negative visual impact to the surrounding area, and in accordance with Chapter 284, Sec. 284.1.02 (1) to enhance the safety requirements of line of sight of pedestrians, particularly small children, the City's designee may deny a request for a proposed Location if the Network Provider installs Network Node ground equipment where existing ground equipment within 300 feet already occupies a footprint of 25 sq. ft. or more to minimize effect on property values and aesthetics on the area. D. Allowed Colors. 1.6 1. Colors in Historic Districts and Design Districts must be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284 2. Colors in Historic Districts and Design Districts must be approved by the City Manager or his /her designee from a palette of approved colors if such palettes are contained within the Historic District and/or Design Districts guidelines. Unless otherwise provided, all colors shall be earth tones or shall match the background of any structure the facilities are located upon and all efforts shall be made for the colors to be inconspicuous. 3. Colors in areas other than in Historic Districts and Design Districts shall conform to colors of other installations of telecommunication providers in the immediately adjacent areas or by approved concealment or camouflage. SECTION 6. ELECTRICAL SUPPLY A. Network Provider shall be responsible for obtaining any required electrical power service to the Micro Network Node, Network Node facilities, Node Support Poles and ground equipment. The City shall not be liable to the Network Provider for any stoppages or shortages of electrical power furnished to the Micro Network Node, Network Node facilities, Node Support Poles or ground equipment, including without limitation, stoppages or shortages caused by any act, omission, or requirement of the public utility serving the structure or the act or omission of any other tenant or Network Provider of the structure, or for any other cause beyond the control of the City. B. Network Provider shall not allow or install generators or back -up generators in the Public Right -of -Way in accordance with Chapter 284, Sec. 284.002 (1.2) (B) (1). SECTION 7. INSURANCE, INDEMNITY, BONDING AND SECURITY DEPOSITS. A. Insurance, bonding and security deposits shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. B. Indemnity shall be in accordance with Chapter 284, Sec. 284.302, as provided for in Chapter 283, Sec. 283.057 (a) and (b) of the Texas Loc. Gov't Code. SECTION 8. REQUIREMENTS IN REGARD TO REMOVAL, REPLACEMENT, REPLACEMENT, MAINTENANCE AND REPAIR 1. Removal and relocation by the Network provider of its Micro Network Node, Network Node facilities, Node Support Pole or related ground equipment at its own discretion, shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284 2. If the Network Provider removes or relocates a Micro Network Node, Network Node facilities, Node Support Pole or related ground equipment at its own discretion, it shall notify the City Manager or his /her designee in writing not less than 10 business days prior to removal or 17 relocation. Network Provider shall obtain all Permits required for relocation or removal of its Micro Network Node, Network Node facilities, Node Support Poles and related ground equipment prior to relocation or removal. 3. The City shall not issue any refunds for any amounts paid by Network Provider for Micro Network Node, Network Node facilities, Node Support Poles or related ground equipment that have been removed. B. REMOVAL OR RELOCATION REQUIRED FOR CITY PROJECT. 1. Removal and Relocation of Network Provider's Micro Network Node, Network Node, Node Support Pole or related ground equipment, or portion thereof required for a City project shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284, Sec. 284.107, except as provided in existing state and federal law. 2. In accordance with Chapter 284, Sec. 284.107, except as provided in existing state and federal law, a Network Provider shall relocate or adjust Micro Network Node, Network Node, Node Support Pole and related ground equipment in a public right -of -way in a timely manner and without cost to the City managing the public right -of -way 3. Network Provider understands and acknowledges that the City may require Network Provider to remove or relocate its Micro Network Node, Network Node, Node Support Pole and related ground equipment, or any portion thereof from the Right -of -Way for City construction projects as allowed by state and federal law, including the common -law. 4. Network Provider shall, at the City Manager or his /her designee's direction, remove or relocate the same at Network Provider's sole cost and expense, except as otherwise provided in existing state and federal law, whenever the City Manager or his /her designee reasonably determines that the relocation or removal is needed for any of the following purposes: Required for the construction, completion, repair, widening, relocation, or maintenance of, or use in connection with, any City construction or maintenance project of a street ort public rights -of -way to enhance the traveling public's use for travel and transportation. 5. If Network Provider fails to remove or relocate the Micro Network Node, Network Node, Node Support Pole or related ground equipment, or portion thereof as requested by the City Manager or his /her designee within 90 days of Network Provider's receipt of the request, then the City shall be entitled to remove the Micro Network Node, Network Node, Node Support Pole or related ground equipment, or portion thereof at Network Provider's sole cost and expense, without further notice to Network Provider. 6. Network Provider shall, within 30 days following issuance of invoice for the same, reimburse the City for its reasonable expenses incurred in the removal (including, without limitation, overhead and storage expenses) of the Micro Network Node, Network Node, Node Support Pole or related ground equipment, or portion thereof. C. REMOVAL REQUIRED BY CITY FOR SAFETY AND IMMINENT DANGER REASONS. 1. Network Provider shall, at its sole cost and expense, promptly disconnect, remove, or relocate the applicable Micro Network Node, Network Node, Node Support Pole and related ground equipment within the time frame and in the manner required by the City Manager or his /her designee if the City Manager or his/her designee reasonably determines that the disconnection, removal, or relocation of any part of a Micro Network Node, Network Node, Node Support Pole and related ground equipment (a) is necessary to protect the public health, safety, welfare, or City property, (b) the Micro Network Node, Network Node, Node Support Pole and related ground equipment, or portion thereof, is adversely affecting proper operation of streetlights or City property, or (c) Network Provider fails to obtain all applicable licenses, Permits, and certifications required by Law for its Micro Network Node, Network Node, Node Support Pole and related ground equipment, or use of any Location under applicable law in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 2. If the City Manager or his/her designee reasonably determines that there is imminent danger to the public, then the City may immediately disconnect, remove, or relocate the applicable Micro Network Node, Network Node, Node Support Pole and related ground equipment at the Network Provider's sole cost and expense in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 3. Network Provider shall, at its sole cost and expense, promptly disconnect, remove, or relocate the applicable Micro Network Node, Network Node, Node Support Pole and related ground equipment within the time frame and in the manner required by the City Manager or his /her designee if the City Manager or his /her designee reasonably determines that the disconnection, removal, or relocation of any part of a Micro Network Node, Network Node, Node Support Pole and related ground equipment (a) is necessary to protect the public health, safety, welfare, or City property, (b) the Micro Network Node, Network Node, Node Support :Pole and related ground equipment, or portion thereof, is adversely affecting proper operation of streetlights or City property, or (c) Network Provider fails to obtain all applicable licenses, Permits, and certifications required by Law for its Micro Network Node, Network Node, Node Support Pole and related ground equipment, or use of any Location under applicable law. If the City Manager or his /her designee reasonably determines that there is imminent danger to the public, then the City may immediately disconnect, remove, or relocate the applicable Micro Network Node, Network Node, Node Support Pole and related ground equipment at the Network Provider's sole cost and expense. 4. The City Manager or his/her designee shall provide 90 days written notice to the Network Provider before removing a Micro Network Node, Network Node, Node Support Pole and related ground equipment under this Section, unless there is imminent danger to the public health, safety, and welfare. 5. Network Provider shall reimburse City for the City's actual cost of removal of Micro Network Node, Network Node, Node Support Pole and related ground equipment within 30 days of receiving the invoice from the City. SECTION 9. INSTALLATION AND INSPECTIONS A. INSTALLATION. 1.9 1. Network Provider shall, at its own cost and expense, install the Micro Network Node, Network Node facilities, Node Support Poles and related ground equipment in a good and workmanlike manner in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284 2. Network Provider shall, at its own cost and expense, install the Micro Network Node, Network Node facilities, Node Support Poles and related ground equipment in a good and workmanlike manner and in accordance with the requirements promulgated by the City Manager or his/her designee, as such may be amended from time to time. Network Provider's work shall be subject to the regulation, control and direction of the City Manager or his /her designee. All work done in connection with the installation, operation, maintenance, repair, modification, and/or replacement of the Micro Network Node, Network Node facilities, Node Support Poles and related ground equipment shall be in compliance with all applicable laws, ordinances, codes, rules and regulations of the City, applicable county, the state, and the United States ( "Laws "). B. INSPECTIONS. 1. The City Manager or his /her designee, or designee, may perform visual inspections of any Micro Network Node, Network Node, Node Support Pole or related ground equipment located in the Right -of -Way shall be allowed in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284 2. The City Manager or his /her designee, or designee, may perform visual inspections of any Micro Network Node, Network Node, Node Support Pole or related ground equipment located in the Right -of. -Way as the City Manager or his/her designee deems appropriate without notice. If the inspection requires physical contact with the Micro Network Node, Network Node, Node Support Poles or related ground equipment, the City Manager or his/her designee shall provide written notice to the Network Provider within five business days of the planned inspection. Network Provider may have a representative present during such inspection. 3. All permitted work shall be performed in strict adherence to all "applicable codes" and permit requirements. Upon completion of all permitted installations, a letter sealed by an engineer certifying that the installation has been inspected and does conform to all "applicable codes" and permit requirements shall be issued to the City of Schertz by the Network Provider who will be utilizing the installation. 4. The issuance of a permit is not a guarantee of placement. Another Network Provider may also obtain a permit from the City, issued in a non - exclusive, and non - discriminatory manner, for the same location. Such conflicts as may be discovered from time to time are opportunities for appropriate colocation and it is encouraged that each of the effected the Broadband Operators Representative Groups collocate as may be possible. All disputes over locations are between each provider and are private matters not the responsibility of the City. SECTION 10. REQUIREMENTS UPON ABANDONMENT OF OBSOLETE MICRO NETWORK NODE, NETWORK NODE, NODE SUPPORT POLE AND RELATED GROUND EQUIPMENT. 1. Abandoned or obsolete Micro Network Node, Network Node, Node Support Pole and related ground equipment shall be removed in strict accordance with the City's rights -of -way go] management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 2. Network Provider shall remove Micro Network Node, Network Node, Node Support Pole and related ground equipment when such facilities are Abandoned regardless of whether or not it receives notice from the City. Unless the City sends notice that removal must be completed immediately to ensure public health, safety, and welfare, the removal must be completed within the earlier of 90 days of the Micro Network Node, Network Node, Node Support Pole and related ground equipment being abandoned or within 90 days of receipt of written notice from the City. When Network Provider removes, or abandons permanent structures in the Right -of -Way, the Network Provider shall notify the City Manager or his /her designee in writing of such removal or Abandonment and shall file with the City Manager or his /her designee the location and description of each Micro Network Node, Network Node, Node Support Pole and related ground equipment removed or Abandoned. The City Manager or his /her designee may require the Network Provider to complete additional remedial measures necessary for public safety and the integrity of the Right - of -Way. SECTION 11. GENERAL PROVISIONS. 1. As Built Maps and Records. Network Provider's as built maps and records shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 2. A Network Provider shall maintain accurate maps and other appropriate records of its Network Node facilities, Node Support Poles and related ground equipment as they are actually constructed in the Rights -of -Way, including, upon request, the use of Auto CAD /GIS digital format. Network Provider will provide additional maps to the City upon request. 3. For purposes of ROW safety for both the general public and of workers performing work in the ROW, a Network Provider shall provide the City with a listing and associated CAD /GIS digital format map of all active equipment annually. Such listing and digital map shall be submitted by January 201h of each calendar year. 3. Courtesy and Proper Performance. Courtesy and Proper Performance of Network provider's personnel, and contractors shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 3.1 A Network Provider shall make citizen satisfaction a priority in using the Right -of- Way. Network Provider shall train its employees to be customer service- oriented and to positively and politely interact with citizens when dealing with issues pertaining to its Micro Network Node, Network Node, Node Support :Pole and related ground equipment in the Right -of -Way. Network Provider's employees shall be clean, courteous, efficient, and neat in appearance and committed to offering the highest quality of interaction with the public. If, in the opinion of the City Manager or his /her designee or designee, Network Provider is not interacting in a positive and polite manner with citizens, he or she shall request Network Provider to take all remedial steps to conform to these standards. 21. 3. DRUG POLICY. Drug policy of Network provider's personnel, and contractors in the public rights -of -way shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 3.1 It is the policy of the City to achieve a drug -free workforce and workplace. The manufacture, distribution, dispensation, possession, sale, or use of illegal drugs or alcohol by Network Provider's employees, contractors, subcontractors, sub - Network Provider's, or vendors while on City rights -of -way is prohibited. 4. ALLOCATION OF FUNDS FOR REMOVAL AND STORAGE. The City Council has currently appropriated no funds to pay for the cost of any removal or storage of Micro Network Node, Network Node, Node Support Pole and related ground equipment, as authorized under the law. 5. OWNERSHIP. Ownership of Network Node and related equipment shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable codes and ordinances, except to the extent not consistent with Chapter 284. 5.1 No part of a Micro Network Node, Network Node, Node Support Pole and related ground equipment erected or placed on the Right -of -Way by Network Provider will become, or be considered by the City as being affixed to or a part of, the Right -of -Way. All portions of the Micro Network Node, Network Node, Node Support Pole and related ground equipment constructed, modified, erected, or placed by Network Provider on the Right -of -Way will be and remain the property of Network Provider and may be removed by Network Provider at any time, provided the Network Provider shall notify the City Manager or his /her designee prior to any work in the Right - of -Way. 6. Tree Maintenance. Tree maintenance shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. Tree and vegetation maintenance shall comply with all applicable State regulations as may be promulgated from time to time, and as amended. 6.1 A Network Provider, its contractors, and agents shall obtain written permission from the City Manager or his /her designee before trimming trees hanging over its Micro Network Node, Network Node, or Node Support Pole, to prevent branches of such trees from contacting attached Micro Network Node, Network Node, or Node Support Pole. The Network Provider shall trim trees and vegetation under the supervision and direction of a Certified Arborist. The City shall not be liable for any damages, injuries, or claims arising from Network Provider's actions under this section. 7. Signage. Signage shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 7.1 Network Provider shall post its name, location identifying information, and emergency telephone number in an area on the cabinet of the Network Node facility that is visible to the public. Signage required under this section shall not exceed 4" x 6 ", unless otherwise required by law (e.g. RF ground notification signs) or the City Manager or his/her designee. 7.2 Except as required by law or by the Utility Pole owner, a Network Provider shall not post any other signage or advertising on the Micro Network Node, Network Node, Node Support Pole, Service pole or Utility Pole. W 8. Graffiti Abatement. Graffiti abatement shall be in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 8.1 As soon as practical, but not later than fourteen (14) calendar days from the date Network Provider receives notice thereof, Network Provider shall remove all graffiti on any of its Micro Network Node, Network Node, Node Support Pole, and related ground equipment located in the Right of Way. The foregoing shall not relieve the Network Provider from complying with any City graffiti or visual blight ordinance or regulation. 9. Restoration. 9.1 A Network Provider shall restore and repair of the public rights -of -way from any damage to the Right -of -Way, or any facilities located within the Right -of -Way, and the property of any third party resulting from Network Provider's removal or relocation activities (or any other of Network Provider's activities hereunder) in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 9.2 A Network Provider shall repair any damage to the Right -of -Way, or any facilities located within the Right -of -Way, and the property of any third party resulting from Network Provider's removal or relocation activities (or any other of Network Provider's activities hereunder) within 10 calendar days following the date of such removal or relocation, at Network Provider's sole cost and expense, including restoration of the Right -of -Way and such property to substantially the same condition as it was immediately before the date Network Provider was granted a Permit for the applicable Location or did the work at such Location (even if Network Provider did not first obtain a Permit), including restoration or replacement of any damaged trees, shrubs or other vegetation. Such repair, restoration and replacement shall be subject to the sole, reasonable approval of the City Manager or his /her designee. 10. Network provider's responsibility. 10.1 A Network Provider shall be responsible and liable for the acts and omissions of the Network Provider's employees, temporary employees, officers, directors, consultants, agents, Affiliates, subsidiaries, sub - Network Provider's and subcontractors in connection with the installations of any Micro Network Node, Network Node, Node Support Pole and related ground equipment, as if such acts or omissions were Network Provider's acts or omissions in strict accordance with the City's rights -of -way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 10.2 A Network Provider shall be responsible and liable for the acts and omissions of the Network Provider's employees, temporary employees, officers, directors, consultants, agents, Affiliates, subsidiaries, sub - Network Provider's and subcontractors in connection with the installations of any Micro Network Node, Network Node, Node Support Pole, Transport Facility and related ground equipment, as if such acts or omissions were Network Provider's acts or omissions. 23 SECTION 12. ADMINISTRATIVE HEARING — REQUEST FOR EXEMPTION 12.1 Should the Network Provider desire to deviate from any of the standards set forth in the Design Manual, the Network Provider may request an Administrative Hearing before a Board of Appeals. The City Council shall act as the Board of Appeals for a Request for Exemption. 12.2 The process for an application, hearing and vote shall follow the process set out for a plat appeal to the City Council. SECTION 13 -19 RESERVED SECTION 20. DESIGN MANUAL - UPDATES Placement or Modification of Micro Network Node, Network Node, Node Support Pole, Transport Facility, and related ground equipment shall comply with the City's Design Manual at the time the Permit for installation or Modification is approved and as amended from time to time. ` Sec. 284.301.. LOCAL POLICE -POWER -BASED REGULATIONS. (a) Subject to this chapter and applicable federal and state law, a municipality may continue to exercise zoning, land use, planning, and permitting authority in the municipality's boundaries, including with respect to utility poles. (b) A municipality may exercise that authority to impose police- power -based regulations for the management of the public right -of -way that apply to all persons subject to the municipality. (c) A municipality may impose police -power -based regulations in the management of the activities of network providers in the public right -of. -way only to the extent that the regulations are reasonably necessary to protect the health, safety, and welfare of the public. 2 The definitions as used in Tx. Loc. Gov. Code, Chapter 284, Sec. 284.002 shall be used in this Design Manual. Tex. Loc. Gov. Code, Chapter 284, Sec. 284.002. DEFINITIONS. In this chapter: (1) "Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services. (2) "Applicable codes" means: (A) uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; and (B) local amendments to those codes to the extent not inconsistent with this chapter. (3) "Collocate" and "collocation" mean the installation, mounting, maintenance, modification, operation, or replacement of network nodes in a public right -of. -way on or adjacent a! to a pole. (4) "Decorative pole" means a streetlight pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specially designed informational or directional signage or temporary holiday or special event attachments, have been placed or are permitted to be placed according to nondiscriminatory municipal codes. (5) "Design district" means an area that is zoned, or otherwise designated by municipal code, and for which the city maintains and enforces unique design and aesthetic standards on a uniform and nondiscriminatory basis. (6) "Historic district" means an area that is zoned or otherwise designated as a historic district under municipal, state, or federal law. (7) "Law" means common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance. (8) "Macro tower" means a guyed or self - supported pole or monopole greater than the height parameters prescribed by Section 284.1.03 and that supports or is capable of supporting antennas. (9) "Micro network node" means a network node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 11 inches. (10) "Municipally owned utility pole" means a utility pole owned or operated by a municipally owned utility, as defined by Section 11.003, Utilities Code, and located in a public right -of -way. (11) "Municipal park" means an area that is zoned or otherwise designated by municipal code as a public park for the purpose of recreational activity. (1.2) "Network node" means equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term: (A) includes: (i) equipment associated with wireless communications; (ii) a radio transceiver, an antenna, a battery -only backup power supply, and comparable equipment, regardless of technological configuration; and (iii) coaxial or fiber -optic cable that is immediately adjacent to and directly associated with a particular collocation; and (B) does not include: (i) an electric generator; (ii) a pole; or (iii) a macro tower. (1.3) "Network provider" means: (A) a wireless service provider; or (B) a person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider: (i) network nodes; or (ii) node support poles or any other structure that supports or is capable of supporting a network node. (1.4) "Node support pole" means a pole installed by a network provider for the primary purpose of supporting a network node. (15) "Permit" means a written authorization for the use of the public right -of -way or W1 collocation on a service pole required from a municipality before a network provider may perform an action or initiate, continue, or complete a project over which the municipality has police power authority. (l 6) "Pole" means a service pole, municipally owned utility pole, node support pole, or utility pole. (17) "Private easement" means an easement or other real property right that is only for the benefit of the grantor and grantee and their successors and assigns. (l 8) "Public right -of -way" means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the municipality has an interest. The term does not include: (A) a private easement; or (B) the airwaves above a public right -of -way with regard to wireless telecommunications. (19) "Public right -of. -way management ordinance" means an ordinance that complies with Subchapter C. (20) "Public right -of -way rate" means an annual rental charge paid by a network provider to a municipality related to the construction, maintenance, or operation of network nodes within a public right -of -way in the municipality. (21) "Service pole" means a pole, other than a municipally owned utility pole, owned or operated by a municipality and located in a public right -of -way, including: (A) a pole that supports traffic control functions; (B) a structure for signage; (C) a pole that supports lighting, other than a decorative pole; and (D) a pole or similar structure owned or operated by a municipality and supporting only network nodes. (22) "Transport facility" means each transmission path physically within a public right -of- way, extending with a physical line from a network node directly to the network, for the purpose of providing backhaul for network nodes. (23) "Utility pole" means a pole that provides: (A) electric distribution with a voltage rating of not more than 34.5 kilovolts; or (B) services of a telecommunications provider, as defined by Section 51.002, Utilities Code. (24) "Wireless service" means any service, using licensed or unlicensed wireless spectrum, including the use of Wi -Fi, whether at a fixed location or mobile, provided to the public using a network node. (25) "Wireless service provider" means a person that provides wireless service to the public. 3 Sec. 284.002. DEFINITIONS (8) "Micro network node" means a network node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 11 inches. Sec. 284.003. LIMITATION ON SIZE OF NETWORK NODES. (a) Except as provided by Section 284.109, a network node to which this chapter applies must conform to the following conditions: 26 (1) each antenna that does not have exposed elements and is attached to an existing structure or pole: (A) must be located inside an enclosure of not more than six cubic feet in volume; (B) may not exceed a height of three feet above the existing structure or pole; and (C) may not protrude from the outer circumference of the existing structure or pole by more than two feet; (2) if an antenna has exposed elements and is attached to an existing structure or pole, the antenna and all of the antenna's exposed elements: (A) must fit within an imaginary enclosure of not more than six cubic feet; (B) may not exceed a height of three feet above the existing structure or pole; and (C) may not protrude from the outer circumference of the existing structure or pole by more than two feet; (3) the cumulative size of other wireless equipment associated with the network node attached to an existing structure or pole may not: (A) be more than 28 cubic feet in volume; or (B) protrude from the outer circumference of the existing structure or a node support pole by more than two feet; (4) ground -based enclosures, separate from the pole, may not be higher than three feet six inches from grade, wider than three feet six inches, or deeper than three feet six inches; and (5) pole - mounted enclosures may not be taller than five feet. (b) The following types of associated ancillary equipment are not included in the calculation of equipment volume under Subsection (a): (1) electric meters; (2) concealment elements; (3) telecommunications demarcation boxes; (4) grounding equipment; (5) power transfer switches; (6) cut -off switches; and (7) vertical cable runs for the connection of power and other services. (c) Equipment attached to node support poles may not protrude from the outer edge of the node support pole by more than two feet. (d) Equipment attached to a utility pole must be installed in accordance with the National Electrical Safety Code, subject to applicable codes, and the utility pole owner's construction standards. 27 CITY OF SCHERTZ, TEXAS CHAPTER 284 SERVICE POLE COLLOCATION ATTACHMENT LICENSE AGREEMENT 1 TABLE OF CONTENTS Page No. ARTICLE 1. PARTIES ............................................................................. ............................... 6 I.I. ADDRESSES ......................................................................... ..............................6 ARTICLE2. DEFINITIONS .................................................................... ............................... 6 ARTICLE 3. CHAPTER 284 GRANT AND SCOPE OF AUTHORIZATION TO COLLOCATE NETWORK NODES ON SERVICE POLES .....................11 3.1. CITY GRANT OF PERMISSION IN ACCORDANCE WITH CHAPTER 284 ................................................................... ..............................Al 3.2. SCOPE OF AGREEMENT ................................................ ............................... 12 3.3. UNAUTHORIZED NETWORK NODE ON SERVICE POLES ..................... 12 ARTICLE 4. APPLICATION FOR A PERMIT TO COLLOCATE ON A SERVICEPOLE ................................................................. .............................13 4.1. APPLICATION FOR A PERMIT TO COLLOCATION A NETWORK NODE ON A SERVICE POLE .......................................... ............................... 13 4.2. REVIEW PROCESS FOR AN APPLICATION FOR COLLOCATION OF A NETWORK NODE ON A SERVICE POLE PERMIT. (ch. 284, Sec. 284.154) ...................................................................... ............................... 15 ARTICLE 5. CHAPTER 284 RENTAL FEES AND OTHER PAYMENTS ....................15 5.1. NETWORK NODE SITE ANNUAL RENTAL RATE. (Ch. 284, Sec. 284.053) .............................................................................. ............................... 15 5.2. COLLOCATION ATTACHMENT ON SERVICE POLE FEE. (Ch. 284, Sec. 284.056) ...................................................................... ............................... 16 5.3. MONTHLY TRANSPORT FACILITY FEE. (Ch. 284, Sec. 284.055) ............ 17 5.4. APPLICATION FEES. (Ch. 284, Sec. 284. 156) ................ ............................... 18 1 5.5. OTHER PAYMENTS ......................................................... ............................... 18 5.6. NON - FUNCTIONING NETWORK Nodes ....................... ............................... 19 5.7. PAYMENT ......................................................................... ............................... 19 5.8. REIMBURSEMENT .......................................................... ............................... 19 5.9. PAYMENT LIMITS ........................................................... ............................... 19 5.10. COMPLIANCE REVIEW .................................................. ............................... 19 5.11. PERMITS CONDITIONED ON PAYMENTS BEING CURRENT ................ 20 ARTICLE 6. DESIGN MANUAL, PUBLIC RIGHT- OF-WAY MANAGEMENT ORD. COMPLIANCE AND RELATED REQUIREMENTS ..................... 20 6.1. AESTHETIC REQUIREMENTS ....................................... ............................... 20 6.2. INSTALLATION ............................................................... ............................... 20 6.3. INSPECTIONS ................................................................... ............................... 20 6.4. PLACEMENT ....................................................................... .............................21 6.5. ELECTRICAL SUPPLY .................................................... ............................... 21 6.6. TRANSPORT FACILITY FIBER CONNECTION ........... ............................... 21 6.7. GENERATORS .................................................................. ............................... 21 6.8. EQUIPMENT DIMENSIONS ............................................ ............................... 21. 6.9. TREE MAINTENANCE .................................................... ............................... 21 6.10. SIGNAGE ............................................................................. .............................21 6.11. REPAIR .............................................................................. ............................... 22 6.12. GRAFFITI ABATEMENT ................................................. ............................... 22 ARTICLE 7. RADIO INTERFERENCE BY NETWORK NODE PROHIBITED. (CH. 284, SEC. 284. 304) ..................................................... .............................22 7.1. NO LIABILITY .................................................................. ............................... 22 7.2. NO INTERFERENCE ........................................................ ............................... 22 ARTICLE 8. ABANDONMENT, RELOCATION AND REMOVAL .............................. 23 8.1. ABANDONMENT OF OBSOLETE NETWORK NODE . ............................... 23 8.2. REMOVAL REQUIRED BY CITY ................................... ............................... 24 8.3. REMOVAL OR RELOCATION BY LICENSEE ............. ............................... 24 8.4. REMOVAL OR RELOCATION REQUIRED FOR CITY PROJECT ............ 24 2 8.5. REMOVAL REQUIRED AFTER TERMINATION OR EXPIRATION 3 OFLICENSE ...................................................................... ............................... 25 8.6. REMOVAL REQUIRED AFTER REVOCATION ........... ............................... 25 8.7. OWNERSHIP ..................................................................... ............................... 25 8.8. RESTORATION ................................................................... .............................26 8.9. LICENSEE RESPONSIBLE .............................................. ............................... 26 8.10. ALLOCATION OF FUNDS FOR REMOVAL AND STORAGE ................... 26 ARTICLE 9. ENVIRONMENTAL LAW REQUIREMENTS ............ ............................... 26 ARTICLE 10. SECURITY ........................................................................ ............................... 26 ARTICLE 11. INDEMNIFICATION, INSURANCE AND LIABILITY ............................ 26 ARTICLE 12. TERM AND TERMINATION ........................................ ............................... 26 12.1. TERM ................................................................................. ............................... 26 12.2. RENEWALS ......................................................................... .............................27 12.3. TERMINATION FOR CAUSE BY CITY ......................... ............................... 27 12.4. TERMINATION BY LICENSEE ...................................... ............................... 28 12.5. AUTOMATIC TERMINATION ........................................ ............................... 28 ARTICLE 1.3. TRANSFER OF AUTHORITY ....................................... ............................... 28 13.1. ASSIGNMENT ..................................................................... .............................28 13.2. BUSINESS STRUCTURE AND ASSIGNMENTS ........... ............................... 29 ARTICLE 14. INVENTORY AND INSPECTIONS .............................. ............................... 29 14.1. INVENTORY RECORDS .................................................. ............................... 29 14.2. INSPECTIONS ................................................................... ............................... 29 14.3. CONFIDENTIAL INFORMATION .................................. ............................... 29 ARTICLE 15. MISCELLANEOUS ......................................................... ............................... 30 15.1. FORCE MAJEURE .............................................................. .............................30 15.2. DISPUTE RESOLUTION .................................................. ............................... 30 15.3. ACCEPTANCE AND APPROVAL; CONSENT .............. ............................... 31. 15.4. REPRESENTATIONS AND WARRANTIES ................... ............................... 31 15.5. STATEMENT OF ACCEPTANCE ................................... ............................... 32 15.6. RELATIONSHIP OF THE PARTIES ................................ ............................... 32 15.7. SEVERABILITY .................................................................. .............................32 3 15.8. ENTIRE AGREEMENT ..................................................... ............................... 32 15.9. WRITTEN AMENDMENT ................................................ ............................... 32 15.10. APPLICABLE LAWS AND VENUE ................................ ............................... 32 15.11. NOTICES .............................................................................. .............................33 15.12. CAPTIONS ........................................................................... .............................33 15.13. NON - WAIVER ..................................................................... .............................33 15.14. ENFORCEMENT ................................................................. .............................33 15.15. AMBIGUITIES ..................................................................... .............................34 15.16. SURVIVAL ........................................................................ ............................... 34 15.17. RESERVED .......................................................................... .............................34 15.18. PARTIES IN INTEREST ................................................... ............................... 34 15.19. REMEDIES CUMULATIVE ............................................. ............................... 34 15.20. LICENSEE DEBT .............................................................. ............................... 34 15.21. PARTS INCORPORATED ................................................ ............................... 34 15.22. CONTROLLING PARTS ................................................... ............................... 34 15.23. SIGNATURES ...................................................................... .............................35 List of Exhibits: [Drafters note: List Exhibits as needed] Exhibit [xxx] Application for Collocation on Service Pole Permit. lDrafter's Note -City should prepare aform application see sec. 4.I.1] 4 CITY OF SCHERTZ, TEXAS CHAPTER 284 SERVICE POLE COLLOCATION ATTACHMENT LICENSE AGREEMENT THE STATE OF TEXAS COUNTY OF GUADALUPE This Service Pole Collocation Attachment License Agreement ( "Agreement") is made by and between the City of Schertz, Texas, ( "City"), a home -rule municipal corporation of the State of Texas, and ( "Network Provider" or "Licensee "), a with its principal offices at . Pursuant to Tex. Loc. Gov. Code, Chapter 284 ( "Chapter 284 "), Section 284.056 and Section 284.101 (a) (3), the City enters into this Agreement to further detail the terms and conditions of Collocation of attachments of wireless Network Nodes to and on City Service Poles. RECITALS WHEREAS, Licensee, a Network Provider, as that term is defined in Chapter 284, is requesting to Collocate, which includes attachments, as that term is defined in Chapter 284, its Network Nodes, as defined in Chapter 284, to and on the City's Service Poles, as that term is defined in Chapter 284, that are in the Public Right -of -Way to the extent permitted by Chapter 284; and WHEREAS, Chapter 284 states "to the extent this state has delegated its fiduciary responsibility to municipalities as managers of a valuable public asset, the public right -of -way, this state is acting in its role as a landowner in balancing the needs of the public and the needs of the network providers by allowing access to the public right -of -way to place network nodes in the public right -of -way strictly within the teens of this chapter"; and WHEREAS, Chapter 284 states "[i]t is the policy of this state, subject to state law and strictly within the requirements and limitations prescribed by this chapter, that municipalities: (1) retain the authority to manage the public right -of -way to ensure the health, safety, and welfare of the public; and (2) receive from network providers fair and reasonable compensation for use of the public right -of -way and for collocation on poles "; and WHEREAS, Section 253 of the Federal Communications Act of 1934, as amended, including 47 U.S.C. § 253, acknowledges that the City has the authority to manage and control access to and use of the Public Right -of -Way within the City limits; and WHEREAS, the City has been authorized by the State to act as fiduciary and trustee for the public, in exercising proprietary rights in its discretion to grant use of the Public Right -of -Way within the City limits and condition that use in accordance with Chapter 284; and WHEREAS, Chapter 284, Section 284.101 (a) -(b), et al, set forth the conditions to access and Collocation on the City's Service Poles that are in the Public Right -of -Way of the Network Nodes to include compliance with the Applicable Codes, and Public Right- of-Way Management Ordinances, and the Chapter 284 limits to the height, width, safety and aesthetic requirements of Network Nodes; and WHEREAS, the Licensee shall compensate the City pursuant to applicable state law, including Chapter 284, for the collocation of the Network Nodes on Service Poles in the City's Public Right -of -Way; and WHEREAS, the Licensee's non - exclusive use at locations in its Public Right -of -Way, are subject to the terms and conditions set forth herein, and pursuant to Permits issued by the City Public Works Department; and WHEREAS, the City and Licensee desire by this Agreement to set forth their understanding of such matters. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein below, City and Licensee agree as follows: ARTICLE 1. PARTIES L LADDRESSES The initial address of the parties, which either party may change at any time by giving written notice to the other party pursuant to the terms of this Agreement, are as follows: City of Schertz Attn: City Manager John Kessel 1400 Schertz Parkway Schertz, Texas 78154 Email: jkessel @schertz.com Network Provider and Licensee Attn: Street Texas, Email: ARTICLE 2. DEFINITIONS 2.1. As used in this Agreement, the definitions as used in Tex. Loc. Gov. Code, Chapter 284, Sec. 284.002 shall be used, unless otherwise noted in Section 2. 1, below:1 2.1.1. Abandon and its derivatives means the facilities installed in the right -of -way (including by way of example but not limited to: poles, wires, conduit, manholes, 6 handholes, cuts, network nodes and node support poles, or portion thereof) that have been left by Provider in an unused or non - functioning condition for more than 120 consecutive calendar days unless, after notice to Provider, Provider has established to the reasonable satisfaction of the City that the applicable facilities, or portion thereof, is still in active use. 2.1.2. Affiliate means (a) any entity who (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with the Licensee; (b) any entity acquiring substantially all of the assets of Licensee in the market defined by the Federal Communications Commission in which the Locations are located; or (c) any successor entity in a merger, acquisition, or other business reorganization involving Licensee. For purposes of this definition, "own" means to own an equity or other financial interest (or the equivalent thereof) of more than 10 percent or any management interest. 2.1.3. Agreement means this contract between the Parties, including any exhibits and any written amendments as authorized by this Agreement. 2.1.4. Antenna means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services. 2.1.5. Applicable code or codes means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; and local amendments to those codes to the extent not inconsistent with Chapter 284. 2.1.6. City is defined in the preamble of this Agreement and includes its successors and assigns. 2.1.7. City Attorney means the currently appointed or acting City Attorney or his /her designee. 2.1.8. City Engineer means the city engineer for the City from City's Public Works Department, or its successor department, or a person he or she designates. 2.1.9. City Manager means the current and successor City Manager of the City. 2.1.10. Collocate and collocation mean the installation, mounting, maintenance, modification, operation, or replacement of network nodes in a public right -of- way on or adjacent to a pole. 2.1.11. Concealment or Camouflaged means any Wireless Facility or Pole that is covered, blended, painted, disguised, camouflaged or otherwise concealed such that the Wireless Facility blends into the surrounding environment and is visually unobtrusive as allowed as a condition for City advance approval under Chapter 284, Sec. 284.105 in Historic or Design Districts. A Concealed or Camouflaged Wireless Facility or Pole also includes any Wireless Facility or Pole conforming to the surrounding area in which the Wireless Facility or Pole is located and may include, but is not limited to hidden beneath a fagade, blended with surrounding area design, painted to match the supporting area, or disguised with artificial tree branches. 2.1.12. Decorative pole means a streetlight pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specially designed informational or directional signage or temporary holiday or special event attachments, have been placed or are permitted to be placed according to nondiscriminatory municipal codes. 2.1.13. Design District means an area that is zoned, or otherwise designated by municipal code, and for which the city maintains and enforces unique design and aesthetic standards on a uniform and nondiscriminatory basis. 2.1.14. Design Manual means the City Design Manual for the Installation of Network Nodes and Node Support Poles pursuant to Tex. Loc. Gov. Code, Chapter 284 enacted and adopted by the City in accordance with Chapter 284, Sec. 284.108. 11.15. Director means the Director of Public Works Department, or its successor department, or a person he or she designates 2.1.16. Disaster emergency or disaster or emergency means an imminent, impending, or actual natural or humanly induced situation wherein the health, safety, or welfare of the residents of the city is threatened, and includes, but is not limited to any declaration of emergency by city state or federal governmental authorities. 2.1.17. Distributed Antenna System or DAS shall be included as a type of "Network Node." 2.1.18. Effective Date means that date signed by the City Manager on the signature page of this Agreement for each respective Licensee. 2.1.19. Ground Equipment means a Wireless Facility that is located on the surface of the Public Right -of -Way in an approved permit that is immediately adjacent to the Pole on which the Network Node is located. 2.1.20. Historic District recognized by the City, state or federal government under the City Code of Ordinances, State Law, including, but not limited to, Sec. 442.001(3) of the Texas Government Code, a federal law, including, but not limited to, 16 U.S.C. § 470. 2.1.21. Historic Landmark recognized by the City, state or federal government under the City Code of Ordinances, State Law, including, but not limited to, Sec. 442.001(3) of the Texas Government Code, a federal law, including, but not limited to, 16 U.S.C. § 470. 2.1.22. Law means common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance 2.1.23. Licensee and NetworkProvidermean [Add -name of entity] and includes its successors and assigns. 2.1.24. Location means the location of a Service Pole in the Public Right -of -Way in which Licensee is authorized to place its Network Node, provided that it has obtained all Permits. 2.1.25. Macro tower means a guyed or self - supported pole or monopole greater than the height parameters prescribed by Chapter 284, Section 284.103 and that supports or is capable of supporting antennas. 2.1.26. Micro network node means a network node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 11 inches. 2.1.27. Modification means any work in the Public Right -of -Way, or alteration of a Wireless Facility that is not substantially similar in size or is a change in the Wireless Facility's location in the Public Right -of -Way or its physical position on the Pole except those alterations or changes that are excepted from requiring a permit under Chapter 284, Sec. 284.157 (a) and (b) do not constitute Modifications. 2.1.28. Municipal Park means an area that is zoned or otherwise designated by municipal code as a public park for the purpose of recreational activity. 2.1.29. Municipally owned utility pole means a utility pole owned or operated by a municipally owned utility, as defined by Section 11.003, Utilities Code, and located in a public right -of -way. 2.1.30. MUTCD means Manual of Uniform Traffic Control Devices. 2.1.31. Network node means equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term: (A) includes: (i) equipment associated with wireless communications; (ii) a radio transceiver, an antenna, a battery -only backup power supply, and comparable equipment, regardless of technological configuration; and (iii) coaxial or fiber -optic cable that is immediately adjacent to and directly associated with a particular collocation; and (B) does not include: (i) an electric generator; (ii) apole; or (iii) a macro tower. 2.1.32. Network provider means: (A) a wireless service provider; or (B) a person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider: (i) network nodes; or (ii) node support poles or any other structure that supports or is capable of supporting a network node. 2.1.33. Party or Parties mean the Licensee and City, individually or collectively as indicated in the context in which it appears. 2.1.34. Other Party or Other Parties means a Chapter 284 Wireless Service provider who is not a Party to this Agreement. 2.1.35. Node support pole means a pole installed by a network provider for the primary purpose of supporting a network node. 2.1.36. Permit means a written authorization for the use of the public right -of -way or collocation on a service pole required from a municipality before a network provider may perform an action or initiate, continue, or complete a project over which the municipality has police power authority. 2.1.37. Pole means a service pole, municipally owned utility pole, node support pole, or utility pole 2.1.38. Provider has the same meaning as "Network Provider." 2.1.39. Public right -of -way means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the municipality has an interest. The term does not include: (A) a private easement; or (B) the airwaves above a public right -of -way with regard to wireless telecommunications. 2.1.40. Public right -of -way management ordinance means an ordinance of the City that complies with Chapter 284, Subchapter C. 2.1.41. Public right -of -way rate means an annual rental charge paid by a network provider to a municipality related to the construction, maintenance, or operation of network nodes within a public right -of -way in the municipality pursuant to Chapter 284, Sec. 284.053. 2.1.42. Rental Fees means as described in Article 5 herein. 2.1.43. School means an educational institution that offers a course of instruction for students in one or more grades from kindergarten through grade 12 2.1.44. Service pole means a pole, other than a municipally owned utility pole, owned or operated by a municipality and located in a public right -of= -way, including: (A) a pole that supports traffic control functions; (B) a structure for signage; (C) a pole that supports lighting, other than a decorative pole; and (D) a pole or similar structure owned or operated by a municipality and supporting only network nodes. 2.1.45. Small cell shall be included as a type of "Network Node." 2.1.46. Street means only the paved portion of the Public Right -of -Way used for vehicular travel, being the area between the inside of the curb to the inside of the opposite curb, or the area between the two parallel edges of the paved roadway for vehicular travel where there is no curb. A "Street' is generally part of, but smaller in width than the width of the entire right -of -way, while a Public Right - of -Way may include sidewalks and utility easements, a "Street' does not. A 10 "street" does not include the curb or the sidewalk, if either are present at the time of a permit application or if added later. 2.1.47. TAS means Texas Accessibility Standards. 2.1.48. Traffic Signal means any device, whether manually, electrically, or mechanically operated by which traffic is alternately directed to stop and to proceed. 2.1.49. Transport facility means each transmission path physically within a public right - of -way, extending with a physical line from a network node directly to the network, for the purpose of providing backhaul for network nodes 11.50. Underground RequirementArea shall mean means an area where poles, overhead wires, and associated overhead or above ground structures have been removed and buried or have been approved for burial underground pursuant to municipal ordinances, zoning regulations, state law, private deed restrictions, and other public or private restrictions, that prohibit installing aboveground structures in a public right -of -way. 2.1.51. Utility pole means a pole that provides: (A) electric distribution with a voltage rating of not more than 34.5 kilovolts; or (B) services of a telecommunications provider, as defined by Chapter 284, Section 51.002, Utilities Code. 2.1.52. Wireless service means any service, using licensed or unlicensed wireless spectrum, including the use of Wi -Fi, whether at a fixed location or mobile, provided to the public using a network node. 2.1.53. Wireless service provider means a person that provides wireless service to the public. 2.1.54. Wireless facilities mean "Micro Network Nodes," "Network Nodes," and "Node Support Poles" as defined in Texas Local Government Code Chapter 284 2.2 When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number, and words in the singular include the plural. 2.3. The word "shall" is always mandatory and not merely permissive. 2.4. "Include" and "including," and words of similar import, shall be deemed to be followed by the words "without limitation." ARTICLE 3. CHAPTER 284 GRANT AND SCOPE OF AUTHORIZATION TO COLLOCATE NETWORK NODES ON SERVICE POLES. 3.1. CITY GRANT OF PERMISSION IN ACCORDANCE WITH CHAPTER 284. 3.1.1. Only to the extent required by Chapter 284, Sec. 284.056 and Sec. 284.101 (a) (3) does the City grant Licensee the right to enter the Public Right -of -Way and to E Collocate Network Node facilities on Service Poles in the Public Right -of -Way, subject to the terms of this Agreement and Chapter 284. 3.1.2. This Agreement does not confer any other rights not described herein nor does it pen-nit Licensee or third parties to use the Public Right -of -Way or Service Poles for purposes not specified in this Agreement, except to the extent otherwise expressly allowed by law. 3.1.3. This Agreement does not authorize the Licensee to install equipment and facilities associated with or for Macro Towers in the Public Right -of -Way. 3.1.4. Network Provider must have an existing Agreement with the City to apply for and be granted a Permit to use or to in anyway Collocate Network Node facilities on Service Poles. 3.2. SCOPE OF AGREEMENT 3.2.1. This Agreement is not exclusive and the City reserves the right to grant permission to enter the Public Right -of -Way and to use Service Poles in the Public Right -of -Way to Collocate Network Node facilities to other eligible and qualified Other Parties under Chapter 284. 3.2.2. Except as expressly provided herein, this Agreement does not grant Licensee the authority to grant any rights under this Agreement to any Other Party without the written consent of the City in a separate agreement in accordance with Chapter 284. 3.2.3. This Agreement only authorizes Collocation of Network Node on Service Poles in the Public Right -of -Way and does not confer any rights or permission to install or otherwise collocate Network Node on any other Poles or to place such Network Node in the Public Right -of -Way. 3.2.4. This Agreement does not grant to the Licensee an interest in any property. 3.3. UNAUTHORIZED NETWORK NODE ON SERVICE POLES. 3.3.1. The City Manager shall deem as unauthorized any type of Network Node attached or Collocated to a Service Pole if there is no Agreement, even if it was inadvertently and incorrectly permitted. The City Manager at his or her sole discretion may, upon 30 days' written notice, remove or require the Licensee to remove unauthorized Network Node at Licensee's expense without any liability to the City. The City will invoice and Licensee shall reimburse the City within 30 days of receipt of the invoice for the City's cost of removal of unauthorized Network Node. 3.3.2. Any Modification to a Network Node must be approved by the City Public Works Department except for those modifications, repairs, routine maintenance or related work that do not require a pen-nit under Chapter 284, Sec. 284.157 (a) and (b), however even for those modifications, repairs, routine maintenance or related work that do not require a permit under Chapter 284, Sec. 284.157 (a) and (b), 12 advance notice shall be given via written letter (which may be delivered by hand or other method) or an acknowledged email transmission by the Network Provider to the City contact listed in Article I shall be provided to the City as allowed by Chapter 284, Sec. 284.157 (d) (1)- (3). ARTICLE 4. APPLICATION FOR A PERMIT TO COLLOCATE ON A SERVICE POLE. 4.1. APPLICATION FOR A PERMIT TO COLLOCATION A NETWORK NODE ON A SERVICE POLE. 4.1.1. Application for Collocation on Service Pole Permit. Prior to Collocation of a Network Node on a Service Pole or installation of the related ground equipment adjacent to a Service Pole, Licensee shall complete and submit to the City Public Works Department the Application for Collocation of a Network Node on a Service Pole Location, and the following: 4.1.1.1. Fee for Application for Collocation on Service Pole Permit Due with Application. (a) City will charge an application and permit fee for the Application for Collocation of a Network Node on a Service Pole Location in accordance with Chapter 284, Sec. 284.156 and as listed in the City's current fee schedule. (b) Licensee shall pay the City the Ch. 284, Sec. 284.156 application and permit fees at the time of the submittal of the application for the permits. Except as provided for in this Agreement, application and permit fees are non - refundable. 4.1.1.2. Documents necessary for the review of the Application for Collocation of a Network Node on a Service Pole Location and as reasonably requested by the City's Public Works Department as may be requested by Chapter 284, include but are not limited to: 4.1.1.2.1. Map showing exact intended location of the Network Node and its distance from a designated Historic Landmark, Park, or School, Utility Pole, Node Support Pole, and other Network Nodes on a Service Pole, if any, and depicting the sidewalks, and ramps onto sidewalks required by Applicable Codes, TAS, or other law, including the Americans with Disabilities Act, and paved street surface and utility easements; 4.1.1.2.2. Representative drawings or pictures of the intended Network Node as intended to be Collocated on the Service pole; and 4.1.1.2.3. Engineering and construction plans and drawings related to the Collocation of the Network Node on the Service Pole, including where 13 the proposed Transport Facilities will be connected to the Network Node as electrical power connections. 4.1.1.3. Required industry standard pole load analysis: Installations on all Service Poles shall have an industry standard pole load analysis completed and submitted to the municipality with each permit application indicating that the Service Pole to which the Network Node is to be attached will safely support the load, in accordance with Chapter 284.108. An application will not be accepted as complete or will be deemed to have not been accepted without the appropriate engineering analysis. 4.1.1.4. Height of attachments: All attachments on all Service Poles shall be at least 8 feet above grade, in accordance with Chapter 284, Sec. 285.108 (a) (1) - (2) and if a Network Node attachment is projecting toward the street, for the safety and protection of the public and vehicular traffic, the attachment shall be installed no less than sixteen (16) feet above the ground. 4.1.1.5. Installations on Traffic Signals: Installations on all Traffic signal structures must not interfere with the integrity of the facility in any way that may compromise the safety of the public and must be in accordance with an agreement as allowed by Chapter 284, Sec. 285.056 and Sec. 284.101 (a) (3), and (b). Installation of Network Node facilities on any traffic signal structures shall: i. Be encased in a separate conduit than the traffic light electronics; ii. Have a separate electric power connection than the traffic signal structure; and iii. Have a separate access point than the traffic signal structure. iv. Shall not alter, puncture or drill into the City structure. 4.11.6. Installations on Street signage: Installations on all street signage structures must not interfere with the integrity of the facility in any way that may compromise the safety of the public. Installation of Network Node facilities on any street signage structures that has electronics shall: i. Be encased in a separate conduit than any City signage electronics; ii. Have a separate electric power connection than the signage structure; iii. Have a separate access point than the signage structure; iv. Will not alter, puncture or drill into the City structure. 4.1.2. Network Provider shall comply with any additional requirements of the City's Public Right -of -Way Management Ordinance and Design Manual or directions of the City Manager concerning collocating its Network Nodes on any Service Pole. Compliance is to be with the City's Public Right -of -Way Management Ordinance and 14 Design Manual in effect at the time of the Application for Collocation of a Network Node on a Service Pole Location. 4.1.3. If the applicant is not the same as the Licensee listed on the Application for Collocation of a Network Node on a Service Pole or installation of the related ground equipment, the Licensee shall sign the application or provide a letter of agency satisfactory to the City Attorney and is presumed to be the owner of the Network Node, and Ground Equipment and shall be fully responsible for them and the Rental Fees as set forth as the Licensee and Network Provider in this Agreement. 4.2. REVIEW PROCESS FOR AN APPLICATION FOR COLLOCATION OF A NETWORK NODE ON A SERVICE POLE PERMIT. (CH. 284, SEC. 284.154) 4.2.1. The Public Works Department shall review an Application for Collocation of a Network Node on a Service Pole or installation of the related ground equipment on a Service Pole for completeness and act in the time allowed, with notifications to the Licensee, as prescribed in Chapter 284, Sec. 284.154. 4.2.2. The Public Works Department shall review the Application for Collocation of a Network Node on a Service Pole to determine: 4.2.2.1. If the requested site has already been approved as a Location for Other Parties, in which instance that Location shall no longer be available and application shall be denied; 4.2.2.2. If all the required documentation has been provided; 4.2.2.3. Compliance with the requirements of the City's Public Right -of- Way Management Ordinance and Design Manual and this Agreement; 4.2.2.4. That written permission has been obtained by applicable parties as required by this Agreement; and 4.2.2.5. Compliance with applicable construction, engineering, design specifications, Applicable Codes and laws, and other applicable requirements, including the Americans with Disabilities Act. 4.2.3. The City Engineer shall deny a requested Application for Collocation of a Network Node on a Service Pole if the Licensee's application is not in compliance with the City's Public Right -of -Way Management Ordinance and Design Manual and this Agreement. 4.2.4. Licensee shall not install a Network Node without the requisite Pennit(s). 4.2.5. The Public Works Department shall forward to the City Manager each approved GIS or Street Address and related information in the Application for Collocation of a Network Node on a Service Pole when a Permit is approved. ARTICLE 5. CHAPTER 284 RENTAL FEES AND OTHER PAYMENTS 5.1. NETWORK NODE SITE ANNUAL RENTAL RATE. (CH. 284, SEC. 284.053) 15 5.1.1 Annual Network Node Rate. Licensee shall pay the City annually the current per Network Node site rate in accordance with Ch. 284., Sec. 284.053 (a) the current Network Node Public Right -of -Way Rate for each Location for which Licensee has obtained Permit(s) regardless of whether or not a Licensee installs Network Nodes in the Public Right -of -Way. Except as provided for in this Agreement, the annual Network Node Public Right -of -Way Rate is non - refundable. The current rates will be those published in the City's Fee Schedule. 5.1.3. Subsequent Years Annual Network Node Rate Due Date. The annual Network Node Public Right -of -Way Rate for every year after the Initial Annual Network Node Payment shall be paid in advance on or before December 31 of each calendar year for each Network Node in the Public Right -of -Way for the next calendar year period. 5. L4 Annual Network Node Rate Adjustment. Pursuant to Ch. 284, Sec. 284.054 and the City's Right of Way Management Ordinance, on or about each October of each year after October 2017 the City intends to adjust the annual Network Node Public Right -of -Way Rate. The City shall provide written notice to each Network Provider of the new rate, and the rate shall apply to the first payment due to the municipality on or after the 60th day following that notice. It is the City's intent that the new adjusted Network Node Public Right -of -Way Rate be effective each year by December 31 in order to apply and begin accruing January I of the year following the Notice of the adjustment in the Network Node Site Public Right -of -Way Rate. 5.2. COLLOCATION ATTACHMENT ON SERVICE POLE FEE. (CH. 284, SEC. 284.056) 5.2.1 Annual Collocation on Service Pole Attachment fee. Licensee shall pay the City annually a fee for each Network Node Permitted to be Collocated on Service Pole in accordance with Ch. 284., Sec. 284.056 for each Location for which Licensee has obtained Permit(s) to collocate a Network Node on a Service Pole regardless of whether or not a Licensee collocates a Network Node on a Service Pole. Except as provided for in this Agreement, this fee is non - refundable. 5.2.2. Initial Annual Collocation on Service Pole Attachment Fee Pro Rated. The annual collocation on Service Pole attachment fee payment for the first year at any Location ( "Initial Annual Collocation on Service Pole Attachment Fee Payment ") begins accruing when the permit is issued and is due 30 days after Licensee obtains a Permit to install or collocate a Network Node at the Location. The Initial Annual Collocation on Service Pole Attachment Fee Payment shall be pro -rated for the months remaining in the calendar year after the permit issuance date. 5.2.3. Subsequent Years Annual Collocation on Service Pole Attachment Fee Due Date. The annual Collocation on Service Pole attachment fee for every year after the Initial 16 Payment shall be paid in advance on or before December 31 of each calendar year for each Network Node in the Public Right -of -Way for the next calendar year period. 5.3. MONTHLY TRANSPORT FACILITY FEE. (CH. 284, SEC. 284.055) 5.3.1 Monthly Transport Facility Fee. To the extent Network Provider has Transport Facilities Permitted from the Network Nodes in the Public Right -of -Way it shall pay the City in accordance with the Ch. 284, Sec. 284.055 (b) a monthly Transport Facilities fee on a quarterly basis as set out below in Sec. 5.3.3, which begins accruing when the permit is issued and is on the same quarterly access line schedule for quarterly calendar period covered and quarterly payment schedule as in Chapter 283 of the Local Gov. Code. Except as provided for in this Agreement, the Monthly Transport Facility Fee is non - refundable 5.3.2 Licensee may either: (a) In accordance with Ch. 284., Sec. 284.055 (a) (1), install its own Transport Facilities, subject to Transport Facility fee payments as set out in Subsection 5.3.3, below; or (b) In accordance with Ch. 284., Sec. 284.055 (a) (2) obtain transport service from a person that is paying the City fees to occupy the Public Right- of-Way that are the equivalent of not less than $28 per Network node site per month, for which the City shall require independent reasonable verification that the provider of Transport Facility service to the Network Provider has paid the City in the corresponding calendar quarterly time period a payment in an amount that is equivalent to or greater than the Transport Facility fee due for that quarterly payment for the same and corresponding calendar quarter period that the Network Provider would have been due to pay the city for the calendar quarter as set out in Subsection 5.3.4., below. 5.3.3. Monthly Transport Facility Fee payment. In accordance with Ch. 284., Sec. 284.055 (b), the Network Provider shall pay to the City a fee as listed in the City's Fee Schedule multiplied by the number of the Network Provider's Network Nodes located in the Public Right -of -Way for which the installed Transport Facilities provide backhaul unless or until the time the Network Provider's payment of municipal rights -of -way fees for use of the Public Right -of -Ways to the City from that same and corresponding calendar quarter period that exceeds its monthly aggregate per -node compensation to the City due for that calendar quarter, subject to the verification as set out in Subsection 5.3.4., below. 5.3.3.1. Quarterly Due dates of Transport Facility Fee payments. The Monthly Transport Facility Fee begins accruing when the pen-nit is issued and is on the same quarterly access line schedule for quarterly calendar period covered and quarterly payment schedule as in Chapter 283 of the Local Gov. Code. The Network Provider shall pay the City the Monthly Transport Facility Fee payment on a quarterly calendar year basis for each calendar quarter, 45 days after the end of the preceding calendar quarter the monthly Public Right -of -Way rate for Transport Facilities. 5.3.4 Alternative Quarterly True -up Verification Report. If Network Provider utilizes the Ch. 284., Sec. 284.055 (a) (2) option to obtain transport service from a person that is paying 17 municipal fees to occupy the Public Right -of -Way or utilizes the Ch. 284, Sec. 284.055 (a) (1), option and install its own Transport Facilities and asserts that it has paid the City in an amount that is equivalent to or greater than the Transport Facility fee due for that quarterly period for the same and corresponding calendar quarter period that would have been due from the Network Provider to the City for the calendar quarter then: (a) 45 days after the end of each calendar quarter the Network Provider shall provide to the City a Quarterly True -up Verification Report documenting those equivalent or greater payments to the City. (b) This verification report is to allow the City to verify that the corresponding immediately preceding past quarterly payments due the City for Transfer Facilities for each Network Node Transfer Facility that the City has received from the Network Provider or from the Network Provider's provider of Transport Facilities a payment to the City for that corresponding prior calendar quarterly period's is equal to or exceeds the monthly aggregate per -node Transfer Facility compensation due to the City under this Agreement and Ch. 284., Sec. 284.055 (b) (2) for that same calendar quarter period. (c) The Quarterly True -up Verification Report shall be provided 45 days after the end of each calendar quarter that an actual and full payment is not made from the Network Provider to the City for the Transfer Facilities Monthly Transport Facility Fee payment. (d) In the event the payment to the City that is asserted to be equal to or exceeding the monthly aggregate per -node Transfer Facility compensation due to the City under this Agreement and Ch. 284., Sec. 284.055 was by a different named entity than the Network Provider, the Network Provider bears the burden to establish that the entity paying the City and the Network Provider is an Affiliate and that they are one and the same for purposes of a Chapter 284 Transfer Facility fee true -up credit against the Monthly Transport Facility Fee. 5.3.5. This Transport Facility fee is in addition to any annual Network Node Public Right - of -Way Rate payment required by Ch. 284, Section 284.053 5.4. APPLICATION FEES. (CH. 284, SEC. 284.156) 5.4.1 Application and Pennit Fees. Licensee shall pay the City the Ch. 284, Sec. 284.1.56, and the City's Fee Schedule, application and permit fees contemporaneously with the submittal of the application for the permits. Except as provided for in this Agreement, application and permit fees are non - refundable. 5.5. OTHER PAYMENTS The Network Node Public Right -of -Way Rate, the collocation on Service Pole attachment fee, the Transport Facility fee, (collectively sometimes referred to as "Rental fees ") and the application and permit fees payable under Ch. 284, shall be exclusive of, and in addition to all ad valorem taxes, special assessments for municipal improvements, and other lawful obligations of the Licensee to the City. 18 5.6.NON- FUNCTIONING NETWORK NODES Licensee shall continue to pay Rental Fees for Network Nodes attached to Service Poles that are no longer in service or operational if the Network Nodes attached to Service Poles occupy the Public Right -of -Way. 5.7.PAYMENT 5.7.1. Rental Fees shall be as due as set out in Section 5.1 -5.4 above. 5.7.2. Rental Fee and other payments shall be payable by ACH direct deposit or check payable to the City of Schertz and sent to the following address: ATTN: Public Works Director City of Schertz 10 Commercial Place, Bldg 2 Schertz, TX 78154 5.8.REIMBURSEMENT When under the terms of this Agreement, the City at its own expense has removed or remediated Licensee's Network Nodes attached to Service Poles or Licensee is required to reirburse the City, the Licensee shall remit payment to the City to the address listed in Article 5.7 within 30 days of the date of the invoice for removal, remediation, or requirement. 5.9.PAYMENT LIMITS Following removal of any Network Nodes attached to Service Poles consistent with the terms of this Agreement, and payment for any damages due to the installation, maintenance or removal of the Network Node, or any other amounts due the City under this Agreement there will be no compensation due, including any Rental Fees, to the City by Licensee for such Network Nodes attached to Service Poles except that the City shall not issue any refunds for any amounts already paid by Licensee for Network Nodes attached to Service Poles that have been removed. Notwithstanding the foregoing, if Licensee is required by the City to remove a Network Node(s) attached to Service Pole(s) and such removal is not the result of Licensee's failure to comply with this Agreement, City may reimburse Licensee the Rental Fee for such Network Nodes attached to Service Poles pro -rated monthly for the remainder of the calendar year. 5.10. COMPLIANCE REVIEW The City may, at its discretion, upon no less than 30 days prior written notice, require that the Licensee produce its records related to this Agreement for review by the City Manager or his designee to ascertain the correctness of the information provided under Article 5 of this Agreement. If the City Manager identifies, as a result of a review of the information provided pursuant to Article 5 of this Agreement amounts owed by the Licensee from prior periods, the Licensee shall pay the amount identified within 30 days of the date of the invoice. If the review determines that payment of the Rental Fee was not made in accordance with the terms of this 19 Agreement and that such payment represents an overpayment of any amount, City will credit such overpayment against Licensee's future obligations to City under this Agreement. Permits are expressly conditioned on Rental payments being current or the permit is void after 30 days' notice of delinquency and remain void until payment in full, except for those amounts disputed in good faith, for which reasonable and detailed documentation has been submitted to the City supporting such disputed amounts and is still pending City review. ARTICLE 6. DESIGN MANUAL, PUBLIC RIGHT -OF -WAY MANAGEMENT ORD. COMPLIANCE AND RELATED REQUIREMENTS 6.1. AESTHETIC REQUIREMENTS 6.1.1. Network Provider shall comply with the requirements of the City's Public Right - of -Way Management Ordinance and Design Manual concerning Collocating its Network Nodes on any Service Pole, as the City's Public Right -of -Way Management Ordinance and Design Manual are published and amended from time to time. Compliance is to be with the City's Public Right -of -Way Management Ordinance and Design Manual in effect at the time of the Application for Collocation of a Network Node on a Service Pole Location. 6.1.2. To the extent not in conflict with the City's Public Right -of -Way Management Ordinance, Design Manual or Chapter 284 the Network Node on the Service Pole shall be concealed or enclosed as much as possible in an equipment box, cabinet or other unit that may include ventilation openings; external cables and wires hanging off a pole shall be sheathed or enclosed in a conduit, so that wires are protected and not visible or are visually minimized to the extent possible. 6.2. INSTALLATION To the extent not in conflict with the City's Public Right -of -Way Management Ordinance or Design Manual or Chapter 284 the Network Node on the Service Pole Licensee shall, at its own cost and expense, install the Network Nodes attached to Service Poles in a good and workmanlike manner and in accordance with the requirements promulgated by the City Engineer, as such may be amended from time to time. Licensee's work shall be subject to the regulation, control and direction of the City Engineer. All work done in connection with the installation, operation, maintenance, repair, and/or replacement of the Network Nodes attached to Service Poles shall be in compliance with all Applicable Codes and Laws. 6.3. INSPECTIONS 6.3.1. The City Public Works Department may perform visual inspections of any Network Nodes attached to Service Poles located in the Public Right -of -Way as the City Public Works Department deems appropriate without notice. If the inspection requires physical contact with the Network Node, the City Public Works Department shall provide written notice to the Licensee within five business days of the planned inspection. Licensee may have a representative present during such inspection. 20 6.3.2. In the event of an emergency situation, the City may, but is not required to, notify Licensee of an inspection. The City may take action necessary to remediate the emergency situation and the City Engineer shall notify Licensee as soon as practically possible after remediation is complete. 6.4. PLACEMENT Network Provider shall comply with the requirements of the City's Public Right -of -Way Management Ordinance and Design Manual concerning Collocating its Network Nodes on any Service Pole, as the City's Public Right -of -Way Management Ordinance and Design Manual are published and amended from time to time. Compliance is to be with the City's Public Right -of -Way Management Ordinance and Design Manual in effect at the time of the Application for Collocation of a Network Node on a Service Pole Location. 6.5. ELECTRICAL SUPPLY Network Provider shall comply with the City's Public Right -of -Way Management Ordinance and Design Manual concerning electrical connections to its Network Nodes on any Service Pole as published and amended from time to time, but as in effect at the time of the application for a permit. Licensee shall be responsible for obtaining any required electrical power service to the Network Nodes. The City shall not be liable to the Licensee for any stoppages or shortages of electrical power furnished to the Network Nodes, including without limitation, stoppages or shortages caused by any act, omission, or requirement of the public utility serving the structure or the act or omission of any other tenant or Licensee of the structure, or for any other cause beyond the control of the City. Licensee shall not be entitled to any abatement of the Rental Fee for any such stoppage or shortage of electrical power. 6.6. TRANSPORT FACILITY FIBER CONNECTION Licensee shall be responsible for obtaining and properly permitting Transport Facilities for the Network Nodes access and connection to fiber optic lines or other backhaul solutions that may be required for its Network Nodes. 6.7. GENERATORS Licensee shall not allow or install generators or back -up generators in the Public Right -of -Way. 6.8. EQUIPMENT DIMENSIONS Licensee's Network Nodes shall strictly conform to the size limits in Chapter 284 for its Network Nodes and ground equipment and shall be no greater than those sizes, but may be less than the sizes set out in Chapter 284. 6.9. TREE MAINTENANCE Network Provider shall comply with the City's Public Right -of -Way Management Ordinance and Design Manual concerning tree maintenance. 6.10. SIGNAGE 21 Network Provider shall comply with the City's Public Right -of -Way Management Ordinance and Design Manual concerning signage on the Network Node and any ground equipment. 6.11. REPAIR To the extent not in conflict with the City's Public Right -of -Way Management Ordinance or Design Manual whenever the installation, placement, Collocation, attachment, repair, removal, operation, use, or relocation of the Network Node, or ground equipment, or any portion thereof is required or permitted under this Agreement, and such installation, placement, Collocation, attachment, repair, removal, operation, use, or relocation causes any property of the City or any third party to be damaged or to have been altered in such a manner as to make it unusable, unsafe, or in violation of any Law, Applicable Code, rule, or regulation, Licensee, at its sole cost and expense, shall promptly repair and return such property to its original condition. If Licensee does not repair such property or perform such work as described in this paragraph, then the City shall have the option, upon 15 days' prior written notice to Licensee or immediately if there is an imminent danger to the public, to perform or cause to be performed such reasonable and necessary work on behalf of Licensee and to charge Licensee for the reasonable and actual costs incurred by the City. Licensee shall reimburse the City for the costs in accordance with Article 5.8 of this Agreement. 6.12. GRAFFITI ABATEMENT Network Provider shall comply with the City's Public Right -of -Way Management Ordinance and Design Manual concerning graffiti on any of its Network Node or ground equipment. ARTICLE 7. RADIO INTERFERENCE BY NETWORK NODE PROHIBITED. (ch. 284, Sec. 284.304) 7.1. NO LIABILITY 7.1.1. The City shall not be liable to Licensee for any damage caused by other Licensees with Network Node in close proximity of the Service Pole. 7.1.2. The City shall not be liable to Licensee by reason of inconvenience, annoyance or injury to the Network Node, or ground equipment, or activities conducted by Licensee therefrom, arising from the necessity of repairing any portion of the Public Right -of -Way, or from the making of any necessary alteration or improvements, in, or to, any portion of the Public Right -of -Way, or in, or to, its fixtures, appurtenances or equipment. The City will use reasonable efforts not to cause material interference to Licensee's operation of its Network Node. IMEMORGIROM 111,5111F _I 7.2.1. Licensee's Network Node shall strictly comply with Chapter 284, Sec. 284.304 and not cause any harmful radio frequency interference to a Federal Communications Commission- authorized mobile telecommunications operation of any municipality operating at the time the Network Node was initially installed or constructed. On written notice, the Network Provider shall take all steps reasonably necessary to remedy any harmful interference. 22 72.2. To the extent not inconsistent with Chap. 284, Sec. 284.304: The Newark Provider's Network Node collocated on Service Poles shall not cause harmful interference to the City's public service radio frequency, wireless network, or communications operations ( "City Operations ") and Other Parties' Network Nodes or similar third -party equipment in the Public Right- of-Way or adjacent City property ( "Protected Equipment "). If Licensee's Network Node interferes with the City's Operations, then Licensee shall immediately cease operation of the Network Node causing said interference upon receiving notice from the City and refrain from operating until Licensee has eliminated the interference. If after notice Licensee continues to operate Network Node that cause interference with City Operations, such Network Node may be deemed unauthorized and subject to the provisions of this Agreement. If Licensee's Network Node interferes with Protected Equipment, then Licensee shall take the steps necessary to correct and eliminate such interference within 24 hours of receipt of notice from the City. If the Licensee is unable to resolve the interference issue within this timeframe, it will voluntarily power down the Network Node causing the interference, except for intermittent testing until such time as the interference is remedied 7.2.2. Following installation or Modification of a Network Node, the City Engineer may require Licensee to test the Network Node's radio frequency and other functions to confirm that it does not interfere with the City's Operations or Protected Equipment. ARTICLE 8. ABANDONMENT, RELOCATION AND REMOVAL 8.1. ABANDONMENT OF OBSOLETE NETWORK NODE Network Provider shall comply with the requirements of the City's Public Right -of -Way Management Ordinance and Design Manual concerning collocating its Network Nodes on any Service Pole, as the City's Public Right -of -Way Management Ordinance and Design Manual are that are published and amended from time to time. Compliance is to be with the City's Public Right -of -Way Management Ordinance and Design Manual in effect at the time of the Application for Collocation of a Network Node on a Service Pole Location. To the extent not in conflict with the City's Public Right -of -Way Management Ordinance or Design Manual Licensee shall remove Network Nodes and ground equipment when such facilities are Abandoned regardless of whether it receives notice from the City. Unless the City sends notice that removal must be completed immediately to ensure public health, safety, and welfare, the removal must be completed within the earlier of 90 days of it being Abandoned or within 90 days of receipt of written notice from the City. When Licensee removes or abandons permanent structures in the Public Right -of -Way, the Licensee shall notify the City Engineer and City Manager in writing of such removal or abandonment and shall file with the City Engineer and City Manager the location and description of Network Nodes and ground equipment removed or abandoned. The City Engineer may require the Licensee to complete additional remedial measures necessary for public safety and the integrity of the Public Right -of -Way. 23 8.2. REMOVAL REQUIRED BY CITY 8.2.1. To the extent not in conflict with the City's Public Right -of -Way Management Ordinance, Design Manual or Chapter 284, Sec. 284.303, Licensee shall, at its sole cost and expense, promptly disconnect, remove, or relocate the applicable Network Nodes and ground equipment within the time frame and in the manner required by the City Public Works Department if the City Public Works Department reasonably determines that the disconnection, removal, or relocation of any part of Network Nodes and ground equipment (a) is necessary to protect the public health, safety, welfare, or City property, (b) Network Nodes and ground equipment or portion thereof, is adversely affecting proper operation of streetlights, or City property, or (c) Licensee loses or fails to obtain all applicable licenses, Permits, and certifications required by Law for its Network Nodes and ground equipment, or use of any Location under this Agreement. If the City Public Works Department reasonably determines that there is imminent danger to the public, then the City may immediately disconnect, remove, or relocate the applicable Network Nodes and ground equipment at the Licensee's sole cost and expense. 8.2.2. The City Public Works Department shall provide 90 days written notice to the Licensee before removing a Network Nodes and ground equipment under this Section 8.2, unless there is imminent danger to the public health, safety, and welfare. 8.2.3. Licensee shall reimburse City for the City's actual cost of removal and any storage or associated costs of its Network Nodes and ground equipment in accordance with this Agreement within 30 days of receiving the invoice from the City. 8.3. REMOVAL OR RELOCATION BY LICENSEE 8.3.1. If the Licensee removes or relocates a Network Nodes and ground equipment at its own discretion, it shall notify the City Public Works Department and City Manager in writing not less than 10 business days prior to removal or relocation. Licensee shall obtain all permits required for relocation or removal of its Network Nodes and ground equipment prior to relocation or removal. 8.3.2. Except as otherwise provided in this Agreement, the City shall not issue any refunds for any amounts paid by Licensee for Network Nodes and ground equipment that have been removed. 8.4. REMOVAL OR RELOCATION REQUIRED FOR CITY PROJECT 8.4.1. To the extent not in conflict with the City's Public Right -of -Way Management Ordinance or Design Manual and Chapter 284, Sec. 284.303, Licensee understands and acknowledges that the City may require Licensee to remove or relocate its Network Nodes and ground equipment, or any portion thereof from the Public Right -of -Way, and Licensee shall at the City Public Works Department's direction remove or relocate the same at Licensee's sole cost and expense, whenever the City Engineer reasonably detennines that the relocation 24 or removal is needed for any of the following purposes: Required for the construction, completion, repair, widening, relocation, or maintenance of, or use in connection with, any City construction or maintenance project that enhances the Public Right -of -Way for use of the traveling public. 8.4.2. If Licensee fails to remove or relocate the Network Nodes and ground equipment, or portion thereof as requested by the City Public Works Department within 90 days of Licensee's receipt of the request, then the City shall be entitled to remove the Network Nodes and ground equipment or portion thereof at Licensee's sole cost and expense, without further notice to Licensee, and Licensee shall, within 30 days following issuance of invoice for the same, reimburse the City for its reasonable expenses incurred in the removal (including, without limitation, storage expenses) of the Network Nodes and ground equipment, or portion thereof. 8.5. REMOVAL REOUIRED AFTER TERMINATION OR EXPIRATION OF LICENSE Within 30 calendar days after termination or expiration of this Agreement, Licensee shall commence removal of all of Licensee's Network Nodes and ground equipment from all Service Pole(s) in the Public Right -of -Way and peaceably surrender the Public Right -of -Way to City in the same condition the Public Right -of -Way was in on the Effective Date. Removal of all the Licensee's Network Nodes and ground equipment under this section must be completed within 90 days. If Licensee fails to begin removal of the Network Nodes and ground equipment on or before the 30th day after the Agreement expires or terminates or fails to complete removal within 90 days, the City may remove, store, or dispose of any remaining portion of the Network Nodes and ground equipment in any manner the City Public Works Department deems appropriate. Licensee shall, within 30 days after receipt of the City's written request and invoice, reimburse the City for all costs incurred by the City in connection therewith (including any reasonable overhead and storage fees). 8.6. REMOVAL REQUIRED AFTER REVOCATION Within 30 days after the date of the notice of revocation of a Permit for a Location, Licensee shall commence removal of the Network Nodes and ground equipment from the Public Right -of -Way and peaceably surrender the Public Right -of -Way to City in the same condition the Public Right - of -Way was in on the Effective Date. If Licensee fails to complete removal within 90 days, the City may remove, store, or dispose of any remaining portion of the Network Nodes and ground equipment in any manner the City Public Works Department deems appropriate. Licensee shall, within 30 days after receipt of the City's written request and invoice, reimburse the City for all costs incurred by the City in connection therewith (including any reasonable overhead and storage fees). 8.7. OWNERSHIP No part of a Network Node constructed, erected or placed on the Public Right -of -Way by Licensee will become, or be considered by the City as being affixed to or a part of, a Service Pole or of the Public Right -of -Way. All portions of the Network Node constructed, modified, erected or placed by Licensee on the Public Right -of -Way will be and remains the property of Licensee and may be removed by Licensee at any time during or after the Term. 25 8.8. RESTORATION Licensee shall repair any damage to the Public Right -of -Way, and the property of any third party resulting from Licensee's removal activities (or any other of Licensee's activities hereunder) within 10 days following the date of such removal or relocation, at Licensee's sole cost and expense, to include restoration of the Public Right -of -Way and property to substantially the same condition as it was immediately before the Effective Date, including restoration or replacement of any damaged trees, shrubs or other vegetation. Such repair, restoration and replacement shall be subject to the sole, reasonable approval of the City Manager. 00s 414020 aaI]ILI90IM411.3a0 Licensee shall be responsible and liable for the acts and omissions of Licensee's employees, temporary employees, officers, directors, consultants, agents, Affiliates, subsidiaries, sublicensees, sublessees, and subcontractors in connection with the performance of this Agreement, as if such acts or omissions were Licensee's acts or omissions. 8.10. ALLOCATION OF FUNDS FOR REMOVAL AND STORAGE The City has appropriated $0 under this Agreement to pay for the cost of any removal or storage of Network Node, as authorized under this Article, and no other funds are allocated in connection with the performance of this Agreement. ARTICLE 9. ENVIRONMENTAL LAW REQUIREMENTS Network Provider shall comply with the City's Public Right -of -Way Management Ordinance concerning environmental law requirements on any of its Network Node or ground equipment. ARTICLE 10. SECURITY Network Provider shall comply with the City's Public Right -of -Way Management Ordinance concerning security requirements on any of its Network Node or ground equipment. ARTICLE 11. INDEMNIFICATION, INSURANCE AND LIABILITY 11.1 Indemnity. Network Provider shall comply with the City's Public Right -of -Way Management Ordinance and Chapter 284, Sec. 284.302 concerning on indemnification requirements on any of its Network Node or ground equipment. 11.2 Insurance. Network Provider shall comply with the City's Public Right -of -Way Management Ordinance concerning insurance requirements on any of its Network Node or ground equipment. 11.3 Liability. Network Provider shall be responsible for any damages to any party that occur due to the installation, maintenance or failure to maintain, the removal or failure to remove Network Nodes for which it would be liable under Law. ARTICLE 12. TERM AND TERMINATION 11PA MIZ -my 26 12.1.1. This Agreement is effective on the Effective Date and unless sooner terminated under other provisions of this Agreement, will remain in effect until December 31, 2025 ( "Initial Term "). Upon expiration of the Initial Term, this Agreement will automatically renew for up to two (2) successive five (5) year terms (each a "Renewal Term ") on the same terms and conditions, unless either the City or Licensee chooses not to renew. If either the City or Licensee chooses not to renew this Agreement, the City Manager shall notify the Licensee or the Licensee shall notify the City Manager of non - renewal at least 90 days before the expiration of the then - current term. 12.3. TERMINATION FOR CAUSE BY CITY 12.3.1. If Licensee defaults under this Agreement, the City may terminate this Agreement subject to Licensee's ability to cure such defaults below. The City's right to terminate this Agreement for Licensee's default is cumulative of all its rights and remedies which exist now or in the future. Default by Licensee includes, but is not limited to: 12.3.1.1. Failure of the Licensee to comply with any material term of this Agreement; 12.3.1.2. Licensee becomes insolvent. 12.3.1.3. The Licensee's failure to obtain all licenses, permits, and certification required by the City under this Agreement and pay all fees associated therewith after the City has notified the Licensee that licenses, pennits, and certifications must be obtained to work in the Public Right -of -Way; 12.3.1.4. All or a substantial part of Licensee's assets are assigned for the benefit of its creditors; 12.3.1.5. A receiver or trustee is appointed for Licensee; or 12.4.1.6. Licensee fails to apply for permits to Collocate on Service Poles in the Public Right -of -Way within 1 year of the Effective Date of this Agreement. 12.3.2. If a default occurs, the City Manager shall deliver a written notice to Licensee describing the default and the termination date. If the City Manager sends a default notice, the Licensee shall have 60 days from the receipt of such notice to cure the default (unless the nature of the event takes longer to cure and the Licensee commences a cure within such 60 -day period and thereafter diligently pursues it but will not exceed 180 days unless agreed to by the City Manager which agreement will not be unreasonably withheld). If Licensee cures the default before the proposed termination date, the proposed termination is ineffective. 12.3.3. If the default is not cured in the time and manner set out above or by the City Manager, then the City Manager may immediately terminate this Agreement by notifying Licensee in writing of such termination. After receiving the notice, Licensee shall, immediately cease operations and remove Network Node from 27 the Public Right -of -Way in accordance with the Sections 8.5 and 8.6 of this Agreement, and any payment due shall be remitted by Licensee within 30 days of the receipt of the notice to the address in the Section 1.1 of this Agreement. 1 VAE, 110403 1010111111L111111I'dIlIN 13=341 12.4.1. The Licensee may terminate this Agreement at any time without cause by giving 30 days advance written notice to the City Manager. 12.4.2. If the Licensee does not remove all Network Node from the Public Right -of -Way within the time period required by Section 8.5 of this Agreement, the Network Node may be removed by the City, subject to reimbursement for its cost from the Network provider as allowed by the Agreement. (►.1 �.1 � 11 C 1 t 1 u 11104 @1134111111 IV i ►VI 11► /: r 0 role I If Chapter 284 of the Local Government Code, or any part thereof is at any time, in full or in part, revoked, found to be unconstitutional, struck down, preempted or otherwise becomes void or invalid, then this License shall automatically terminate, unless an extension is granted by the City. This section shall constitute Notice that in such case, all Network Nodes are to be removed within ninety (90) days from the event that affect Chapter 284. The Parties agree they will negotiate in good faith to assure an ease of transitions as to those parts of Chapter 284 that have been adjudicated as unenforceable, as well as continued compliance with those parts that may remain enforceable, if any. ARTICLE 13. TRANSFER OF AUTHORITY 13.1. ASSIGNMENT 13.1.1. Licensee may not assign, delegate, transfer, or sell all or any portion of its rights, privileges and obligations under this Agreement without written notice to and the prior written consent of the City Manager, which consent will not be unreasonably withheld. No assignment in law or otherwise shall be effective until the assignee has filed with the City Manager an instrument, duly executed, reciting the fact of such assignment, accepting the terms hereof, and agreeing to comply with all of the provisions hereof. A mortgage or other pledge of assets in a bona fide lending transaction shall not be considered an assignment of this Agreement for the purposes of this Article. 13.1.2. This Agreement binds and benefits the Parties and their legal successors and permitted assigns; however, this provision does not alter the restrictions on assignment and disposal of assets set out in this Article. This Agreement does not create any personal liability on the part of any officer or agent of the City. 13.1.3. Notwithstanding anything to the contrary contained in this Agreement, Licensee will, whenever in its sole discretion it is required or appropriate for the operation of its business, have the right, without notice to or consent of City, City Manager, or any other party, to assign all or any portion of its rights under this Agreement in whole or in part, to (a) any Affiliates as long as such entity has expertise in the operation of Network Node, or provision of Wireless Services; (b) any entity with 28 which the Licensee or an Affiliate of the Licensee shares joint ownership of the Network Nodes and ground equipment; or (e) any entity that is a holder of a then - current Agreement. The Licensee shall give written notice to the City Manager within thirty (30) days of such assignment. 13.2. BUSINESS STRUCTURE AND ASSIGNMENTS Nothing in this clause, however, prevents the creation of a security interest in the Network Node facilities as described in the Texas Business & Commerce Code. In the case of such an enforcement of that security interest by the holder of the security interest, as an assignee, Licensee shall immediately furnish to the City Manager with proof of the assignment and the name, telephone number, and address of the assignee and a clear contractual obligation that the assignee shall and does assume all the liabilities and responsibilities of Licensee under this Agreement, including responsibilities for any unpaid past due payments, and current and future payments that may be due the City. Such assignment does not release Licensee of its obligations and payments due or to be due the City, unless there is an express written release agreed to by the City. ARTICLE 14. INVENTORY AND INSPECTIONS. 14.1. INVENTORY RECORDS 14.1.1. Licensee shall maintain a list of its approved Network Node Locations on Service Poles by GIS location during the Term of this Agreement. Licensee shall provide to the City Manager such list within 30 days upon written request, but no more frequent than once a year after the first year of this agreement. 14.2. INSPECTIONS 14.2.1. City representatives shall have the right to perform, or to have performed, (1) inspections of the records described in 14. 1.1 and (2) inspections of all places in the Public Right -of -Way where work is undertaken in connection with this Agreement. Licensee shall keep its records described in 14.1.1 available for this purpose for at least four years after this Agreement terminates or expires. The inspection may be performed by City staff or third -party representatives engaged by the City. This provision does not affect the applicable statute of limitations. 14.2.2. In addition to other records or filings required hereunder or by Law, the Licensee shall maintain and provide access to a current map by either paper or electronic means, upon request by the City Manager or City Public Works Department, showing the approximate locations of Network Nodes on Service Poles in the Right -of- Way. 14.2.3. The City Manager may reasonably require the keeping of additional records or accounts reasonably necessary to determine the Licensee's compliance with the terms of this Agreement. 14.3. CONFIDENTIAL INFORMATION The City Manager shall not disclose any confidential information reproduced for documentation of audit issues unless required by law. If the City receives a request to review or copy confidential information under the Texas Public Information Act or related law (the "Act "), the City shall 29 comply with the requirements for handling third party information under the Act, including notifying the Licensee that a request to review or copy Confidential Information has been submitted to the City. Confidential information deemed subject to disclosure under the Act by the Attorney General of the State of Texas shall be disclosed. ARTICLE 15. MISCELLANEOUS 15.1. FORCE MAJEURE Other than the Licensee's failure to pay amounts due and payable under this Agreement, the Licensee shall not be in default or be subject to sanction under any provision of this Agreement when its performance is prevented by Force Majeure. Force Majeure means an event caused by epidemic; act of God; fire, flood, hurricanes, tornadoes, or other natural disasters; explosions; terrorist acts against the City or Licensee; act of military or superior governmental authority that Licensee is unable to prevent by exercise of reasonable diligence; war; riots; or civil disorder; provided, however, that such causes are beyond the reasonable control and without the willful act, fault, failure or negligence of the Licensee. The term does not include any changes in general economic conditions such as inflation, interest rates, economic downturn or other factors of general application; or an event that merely makes performance more difficult, expensive or impractical. Performance is not excused under this section following the end of the applicable event of Force Majeure. Licensee is not relieved from performing its obligations under this Agreement due to a strike or work slowdown of its employees. Force Majeure does not entitle Licensee to reimbursement of payments. This relief is not applicable unless the affected party does the following: 15.1.1. uses due diligence to remove the effects of the Force Majeure as quickly as possible and to continue performance notwithstanding the Force Majeure; and 15.1.2. provides the other party with prompt written notice of the cause and its anticipated effect. The City Manager will review claims that a Force Majeure that directly impacts the City or Licensee has occurred and render a written decision within 14 days. The decision of the City Manager is final. Licensee is not relieved from performing its obligations under this Agreement due to a strike or work slowdown of its employees. Licensee shall employ only fully trained and qualified personnel during a strike. 15.2. DISPUTE RESOLUTION 15.2.1. In the event of a dispute between the Parties that arises during the Term of this Agreement, the Parties shall attempt to expeditiously and amicably resolve any dispute through good faith discussions in the ordinary course of business at the level at which the dispute originates. 15.2.2. If the Parties are not able to resolve the dispute in the ordinary course of business, the City Manager and representatives of other City departments that are involved in the dispute will meet with Licensee's authorized representative in an attempt to resolve the dispute. 30 15.2.4. Except in emergencies, no lawsuit under or related to this Agreement by one party against the other may be filed until at least meeting has occurred between the City Manager and executives of Network Provider with full authority to resolve the claims in the meeting or that are available contemporaneously with the meeting via live telephonic communications where the parties agree to attempt in good faith to resolve or narrow the issues; and if not resolved, and the parties agree that before initiating litigation, either party shall notify the other party of its intent to sue, and provide a copy of the draft pleading, with supporting facts and legal authorities at least fourteen (14) days before suit is filed. 15.2.5. This section does not apply to disputes that involve a question of law 15.2.6. Notwithstanding the existence of any dispute between the Parties, insofar as is possible under the terms of this Agreement, each Party shall continue to perform the obligations required of it during the continuation of any such dispute, unless enjoined or prohibited by a court of competent jurisdiction or unless this Agreement terminates or expires under the terms provided herein. 15.3. ACCEPTANCE AND APPROVAL; CONSENT An approval by the City Manager, the City Public Works Department, or any other instrumentality of City, of any part of the Licensee's performance shall not be construed to waive compliance with this Agreement or to establish a standard of performance other than required by this Agreement or by law. Where this Agreement contains a provision that either party approve or consent to any action of the other party, such approval or consent shall not be unreasonably withheld or delayed. Except as provided for in this Agreement, the City Manager or City Public Works Department are not authorized to vary the terms of this Agreement. 1.5.4. REPRESENTATIONS AND WARRANTIES In addition to the representations, warranties, and covenants of the Licensee to the City set forth elsewhere herein, the Licensee represents and warrants to the City and covenants and agrees (which representations, warranties, covenants and agreements shall not be affected or waived by any inspection or examination made by or on behalf of the City) that, as of the Effective Date and throughout the term of this Agreement: 15.4.1. Organization, Standing and Power. The Licensee is a Network Provider duly organized, validly existing and in good standing under the laws of the state of its organization and is duly authorized to do business in the State of Texas and in the City. The Licensee has all requisite power and authority to own or lease its properties and assets, subject to the tenns of this Agreement, to conduct its businesses as currently conducted and to execute, deliver and perform this License and all other agreements entered into or delivered in connection with or as contemplated hereby. 15.4.2. Truthful Statements. The Licensee warrants, to the best of its knowledge and belief, that information provided and statements made in connection with its application for this Agreement were true and correct when made and are true and correct upon execution hereof. 31 15.4.3. Condition of'Public Right -of -Way. Licensee accepts the Public Right -of -Way where Network Node are authorized to be located "AS IS," without any express or implied warranties of any kind. 15.5. STATEMENT OF ACCEPTANCE Licensee and City, for themselves, their successors and assigns, hereby accept and agrees to be bound by all terms, conditions and provisions of this Agreement. 15.6. RELATIONSHIP OF THE PARTIES Licensee shall be responsible and liable for its contractors, subcontractors, and sublicensees. The City has no control or supervisory powers over the manner or method of Licensees' contractors' and subcontractors' performance under this Agreement. All personnel Licensee uses or provides are its employees, contractors, or subcontractors and not the City's employees, agents, or subcontractors for any purpose whatsoever. 15.7. SEVERABILITY If any part of this Agreement is for any reason found to be unenforceable, all other parts remain enforceable unless the result materially prejudices either Party. 15.8. ENTIRE AGREEMENT This Agreement merges the prior negotiations and understandings of the Parties and embodies the entire agreement of the Parties. No other agreements, assurances, conditions, covenants (express or implied), or other terms of any kind, exist between the Parties regarding this Agreement. 15.9. WRITTEN AMENDMENT Unless otherwise specified elsewhere in this Agreement, this Agreement may be amended only by written instrument executed on behalf of the City (by authority of an ordinance adopted by the City Council) and Licensee. The City Manager and City Engineer are only authorized to perform the functions specifically delegated to him or her in this Agreement. 1.5.10. APPLICABLE LAWS AND VENUE 15.10.L This Agreement is subject to all Applicable Codes and Laws, and all rules and regulations of any regulatory body or officer having jurisdiction, including any lawful court or administrative decisions, judgments or orders that have been fully and finally adjudicated, including any appeals of such decisions judgments, or orders ( "Decisions "). This Agreement shall be governed, construed, and enforced according to the laws of the State of Texas, without regard to its choice of law provisions. If any material provision of this Agreement is superseded or affected by Law, then the Parties shall negotiate in good faith to revise this Agreement. 15.10.2. Subject to the Parties' obligation to submit to the dispute resolution process or mediation as described in this Agreement, Licensee shall submit any and all 32 litigation and legal proceedings between any of the Licensee and the City to the exclusive jurisdiction of the state or federal courts in the State of Texas and waive any objections or right as to forum non conveniens, lack of personal jurisdiction, or similar grounds. Venue for any litigation relating to this Agreement is Guadalupe County, Texas. 15.11. NOTICES 15.11.1. All notices to either party to the Agreement must be in writing and must be delivered by hand, facsimile, United States registered or certified mail, return receipt requested, United States Express Mail, Federal Express, Airborne Express, UPS or any other national overnight express delivery service. The notice must be addressed to the party to whom the notice is given at its address set out in Article I, Section 1.1 of this Agreement or other address the receiving party has designated previously by proper notice to the sending party. Postage or delivery charges must be paid by the party giving the notice. 15.11.2. Licensee shall address a copy to the City Public Works Director at the address set out in Article 1, Section 1.1 of all notices pertaining to Article 6 and 8 and other notices to the City Public Works Director required under this Agreement. 15.11.3. Licensee shall address a copy to the City Attorney at the address set out in Article I, Section 1.1 of all notices pertaining to Article 15 and other notices to the City Attorney required under this Agreement 1.5.12. CAPTIONS Captions contained in this Agreement are for reference only, and, therefore, have no effect in construing this Agreement. The captions are not restrictive of the subject matter of any section in this Agreement. 15.13. NON- WAIVER If either Party fails to require the other to perform a term of this Agreement, that failure does not prevent the Party from later enforcing that term and all other terms. If either Party waives the other's breach of a term, that waiver does not waive a later breach of this Agreement. 15.14. ENFORCEMENT The City Attorney may enforce all legal rights and obligations under this Agreement without further authorization. Licensee shall provide to the City Attorney all documents and records pertaining to this Agreement that the City Attorney requests to assist in determining Licensee's compliance with this Agreement, with the exception of those documents made confidential by federal or State law or regulation. 33 15.15. AMBIGUITIES If any term of this Agreement is ambiguous, it shall not be construed for or against any Party on the basis that the Party did or did not write it. 15.16. SURVIVAL Licensee and the City shall remain obligated to the other Party under all provisions of this Agreement that expressly or by their nature extend beyond the termination or expiration of this Agreement, including, but not limited to, the provisions regarding warranty, indemnification and confidentiality. All representations and warranties contained in this Agreement shall survive the term of the Agreement. 15.17. RESERVED 15.18. PARTIES IN INTEREST This Agreement does not bestow any rights upon any third party, but binds and benefits the City and Licensee only. 15.19. REMEDIES CUMULATIVE Unless otherwise specified elsewhere in this Agreement, the rights and remedies contained in this Agreement are not exclusive, but are cumulative of all rights and remedies which exist now or in the future. Neither party may terminate its duties under this Agreement except in accordance with its provisions. 15.20. LICENSEE DEBT IF CITY MANAGER BECOMES AWARE THAT LICENSEE OWES ANY DELINQUENT SUM OF MONEY IN AN AMOUNT GREATER THAN $100.00 TO THE CITY OR ANY AFFILIATE ENTITY FOR AD VALOREM TAXES ON REAL OR PERSONAL PROPERTY LOCATED WITHIN THE BOUNDARIES OF THE CITY ( "DEBT "), IT SHALL NOTIFY LICENSEE IN WRITING. IF LICENSEE DOES NOT PAY THE DEBT WITHIN 30 DAYS OF SUCH NOTIFICATION, THE CITY MANAGER MAY DEDUCT FUNDS IN AN AMOUNT EQUAL TO THE DEBT FROM ANY PAYMENTS OWED TO LICENSEE BY THE CITY UNDER THIS AGREEMENT. 15.21. PARTS INCORPORATED All of the above - described sections listed in the Table of Contents and the listed exhibits are made a part of and incorporated into this Agreement. 15.22. CONTROLLING PARTS If a conflict between the sections of the Agreement and any of the exhibits arises, the sections of the Agreement control over the exhibits. 34 15.23. SIGNATURES IN WITNESS WHEREOF, the Original Signatories, through their duly authorized officers, have executed this Agreement in multiple counterparts, each of equal force and effect, effective as of the as of the date signed by the [Drafter's Note: designate one, either the Mayor, City Manager or City Engineer.] LICENSEE/NETWORK PROVIDER: CITY: Name: CITY OF TEXAS Signed by: Mayor Date Signed. Title: Tax Identification No.: ATTEST /SEAL: ATTEST /SEAL: City Secretary Name: Date Signed. APPROVED: City Manager Date Signed. _ Approved as to Form: City Attorney, City of The definitions as used in Tx. Loc. Gov. Code, Chapter 284, Sec. 284.002 shall be used and control over any conflicts with the Agreement. Tx. Loc. Gov. Code, Chapter 284, Sec. 284.002. DEFINITIONS. In this chapter: (1) "Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services. (2) "Applicable codes" means: (A) uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized 35 national code organization; and (B) local amendments to those codes to the extent not inconsistent with this chapter. (3) "Collocate" and "collocation" mean the installation, mounting, maintenance, modification, operation, or replacement of network nodes in a public right -of -way on or adjacent to a pole. (4) "Decorative pole" means a streetlight pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specially designed informational or directional signage or temporary holiday or special event attachments, have been placed or are permitted to be placed according to nondiscriminatory municipal codes. (5) "Design district" means an area that is zoned, or otherwise designated by municipal code, and for which the city maintains and enforces unique design and aesthetic standards on a uniform and nondiscriminatory basis. (6) "Historic district' means an area that is zoned or otherwise designated as ahistoric district under municipal, state, or federal law. (7) "Law" means common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance. (8) "Macro tower" means a guyed or self - supported pole or monopole greater than the height parameters prescribed by Section 284.103 and that supports or is capable of supporting antennas. (9) "Micro network node" means a network node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 11 inches. (10) "Municipally owned utility pole" means a utility pole owned or operated by a municipally owned utility, as defined by Section 11.003, Utilities Code, and located in a public right -of -way. (11) "Municipal park" means an area that is zoned or otherwise designated by municipal code as a public park for the purpose of recreational activity. (12) "Network node" means equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term: (A) includes: (i) equipment associated with wireless communications; (ii) a radio transceiver, an antenna, a battery -only backup power supply, and comparable equipment, regardless of technological configuration; and (iii) coaxial or fiber -optic cable that is immediately adjacent to and directly associated with a particular collocation; and (B) does not include: (i) an electric generator; (ii) a pole; or (iii) a macro tower. (13) "Network provider" means: (A) a wireless service provider; or (B) a person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider: (i) network nodes; or (ii) node support poles or any other structure that supports or is capable of supporting a network node. (14) "Node support pole" means a pole installed by a network provider for the primary purpose of supporting a network node. (15) "Permit' means a written authorization for the use of the public right -of -way or collocation on a service pole required from a municipality before a network provider may perform an action or initiate, continue, or complete a project over which the municipality has police power authority. (16) 'Pole" means a service pole, municipally owned utility pole, node support pole, or utility pole. (17) 'Private easement' means an easement or other real property right that is only for the benefit of the grantor and grantee and their successors and assigns. (18) 'Public right-of-way" means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the municipality has an interest. The term does not include: (A) aprivate easement; or (B) the airwaves above a public right -of -way with regard to wireless telecommunications. (19) 'Public right -of -way management ordinance" means an ordinance that complies with Subchapter C. (20) 'Public right -of- -way rate" means an annual rental charge paid by a network provider to a municipality related to the construction, maintenance, or operation of network nodes within a public right -of -way in the 36 municipality. (21) "Service pole" means a pole, other than a municipally owned utility pole, owned or operated by a municipality and located in a public right -of -way, including: (A) a pole that supports traffic control functions; (B) a structure for signage; (C) a pole that supports lighting, other than a decorative pole; and (D) a pole or similar structure owned or operated by a municipality and supporting only network nodes. (22) "Transportfacility" means each transmission path physically within a public right-of-way, extending with a physical line from a network node directly to the network, for the purpose of providing baekhaul for network nodes. (23) "Utility pole" means a pole that provides: (A) electric distribution with a voltage rating of not more than 34.5 kilovolts; or (B) services of a telecommunications provider, as defined by Section 51.002, Utilities Code. (24) "Wireless service" means any service, using licensed or unlicensed wireless spectrum, including the use of Wi -Fi, whether at a fixed location or mobile, provided to the public using a network node. (25) "Wireless service provider" means a person that provides wireless service to the public. 37 Agenda No. 12 CITY COUNCIL MEMORANDUM City Council Meeting: August 29, 2017 Department: Subject: City Manager Resolution No. 17 -R -77 - A Resolution by the City Council of the City of Schertz, Texas authorizing the City Manager to enter into an Agreement with Green Valley Special Utility District and Triple H Development Corporation for the exchange of Certificate of Convenience and Necessity related to the development of the Hallie's Cove Development The planned Hallie's Cove Development off of FM 1518 near Trainer Hale Road is located within the boundaries of the City's Certificate of Convenience and Necessity (CCN) for drinking water and partially within the boundaries of the Green Valley Special Utility District's CCN for drinking water. Triple H Development has worked with the City and GVSUD to negotiate an exchange of CCN that will place the entire development within the City's CCN. GVSUD is agreeable to this exchange. Triple H Development will process the CCN exchange with the Public Utility Commission and no compensation will be due by any party to this agreement. Staff is seeking authorization from the City Council for the City Manager to enter into an agreement with Triple H Development and the Green Valley SUD for the exchange of drinking water CCN. SUMMARY OF RECOMMENDED ACTION City staff recommends that City Council approve Resolution 17 — R — 77 authorizing the City Manager to enter into an agreement to exchange CCN with GVSUD and Triple H Development. FISCAL IMPACT This will have no fiscal impact. RECOMMENDATION Staff recommends Council approval of Resolution 1.7 -R -77. ATTACHMENTS Resolution 17 -R -XX Proposed GVSUD /Triple H Development CCN Exchange Agreement RESOLUTION NO. 17 -R -77 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH GREEN VALLEY SPECIAL UTILITY DISTRICT AND TRIPLE H DEVELOPMENT, LLC FOR THE EXCHANGE OF CERTIFICATE OF CONVENIENCE AND NECESSITY RELATED TO THE DEVELOPMENT OF HALLIE COVE WHEREAS, the Triple H Development Corporation has requested that the City of Schertz and Green Valley Special Utility District (GVSUD) enter into an agreement to exchange boundaries of their Certificate of Convenience and Necessity (CCN) for the provision of drinking water; and WHEREAS, the location of the development is within the Schertz City Limits and within the boundaries of both the Schertz CCN and the GVSUD CCN; and WHEREAS, the City and GVSUD desire to enter into this agreement with Triple H Development pursuant to Section 1.3.248 of the Texas Water Code that allows an agreed upon exchange of CCN territory; and WHEREAS, the City staff believes it would be beneficial to the City of Schertz to acquire this CCN from GVSUD so that all of the Triple H Development will be within the Schertz CCN; and WHEREAS, the City Council has determined that it is in the best interest of the City to acquire this CCN territory from GVSUD and provide water service to all citizens within this proposed development; therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to enter into an agreement with GVSUD and Triple H Development for the exchange of GVSUD CCN to provide water to the Hallie Cove development for drinking water and fire protection. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 29th day of August, 2017. . CITY OF SCHERTZ, TEXAS Mayor, Michael R. Carpenter City Secretary, Brenda Dennis (CITY SEAL) 50506221.1 - 2 - WATER CODE §13.248 AGREEMENT This Texas Water Code Section 13.248 Agreement (this "Agreement ") is entered into this day of 2017, by and between Triple H Development, LLC, a Texas limited liability company, (hereinafter "Triple H "), Green Valley Special Utility District, a special utility district, created pursuant to Chapter 65 of the Texas Water Code (hereinafter "Green Valley "), and the City of Schertz, Texas, a municipal corporation (hereinafter "Schertz ") with respect to the boundary lines of the Certificate of Convenience and Necessity (hereinafter "CCN ") held by Green Valley and Schertz for the provision of water service to users pursuant to the Texas Water Code. WHEREAS, Schertz is the holder of water CCN # 10645 issued by the Texas Public Utilities Commission (hereinafter "PUC ") for the provision of retail water service to certain areas in and about Bexar County, Texas, as more fully described in Exhibit A; and WHEREAS, Green Valley is the holder of water CCN #10646 issued by the PUC for the provision of retail water service to certain areas in and about Bexar County, Texas as more fully described in Exhibit A; and WHEREAS, Triple H owns +25.00 acres of real property, located near the intersection Trainer Hale Road in Bexar County, Texas, as more fully described in Exhibit B attached hereto (the "Triple H Property "); and WHEREAS, the Triple H property is located within both CCN # 10645 and CCN #10646; and WHEREAS, Schertz and Green Valley have agreed to alter the boundaries of their respective CCNs and transfer ±15.93 acres of the Triple H property so that such area is removed from the Green Valley CCN and added to the Schertz CCN; and WHEREAS, such transfer of Green Valley's CCN and Schertz's CCN will benefit Triple H. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Triple H, Green Valley and Schertz hereby agree as follows: TERMS 1. The Triple H Property is currently undeveloped. 2. In accordance with Texas Water Code Section 13.248, but at all times subject to the approval by PUC, Green Valley hereby agrees to the modification of the boundaries of its CCN #10646 to exclude the area (00278825) contained within the Triple H Property, such area to be transferred from Green Valley's CCN #10646 to the area to be encompassed within the Schertz CCN #10645, as generally depicted in the attached Exhibit A. 3. In accordance with Texas Water Code Section 13.248, but at all times subject to the approval by PUC, Schertz hereby agrees to the expansion and modification of the boundaries of its CCN #10645 to include the area contained within the Triple H Property, such area to be transferred from Green Valley's CCN #10646 to now be encompassed within the Schertz CCN #10645, as generally depicted in the attached Exhibit A. 4. Triple H shall be responsible for obtaining PUC approval of this Agreement. 5. Green Valley and Schertz agree that no compensation shall be due and owing between Green Valley and Schertz in conjunction with such transfer. 6. Schertz and Green Valley agree that, upon approval of the revision to their respective CCN boundaries by the PUC, Green Valley shall not have any further obligation to serve the area that was previously located with within its respective CCN. 7. Prior to the approval of PUC of the revision of the CCN boundaries, Green Valley consents for the limited purpose to Triple H constructing water utility infrastructure necessary for the development of the Triple H Property. General Provisions 7. Assignability. The terms of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, assigns and legal representatives. No party may, without the prior written consent of the other party hereto, assign any rights, powers, duties or obligations hereunder. This Agreement shall not inure to the benefit of any party other than the parties to this Agreement and their successors and permitted assignees, or as otherwise provided herein. 8. Cooperation. The parties hereto each agree to cooperate with each other, consistent with the terms and conditions of this Agreement. Additionally, each party hereby agrees to take any and all other actions and to execute any and all other documents requested by the other party necessary to effectuate the purposes of this Agreement. 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. ALL ACTS REQUIRED OR PERMITTED TO BE PERFORMED HEREUNDER ARE PERFORMABLE IN GUADALUPE (00278x25) COUNTY, TEXAS, AND IT IS AGREED THAT ANY CIVIL ACTION BROUGHT TO ENFORCE OR CONSTRUE THE TERMS OR PROVISIONS HEREOF OR TO ENJOIN OR REQUIRE THE PERFORMANCE OF ANY ACT IN CONNECTION HEREWITH, SHALL BE BROUGHT IN A COURT OF COMPETENT JURISDICTION SITTING IN GUADALUPE COUNTY, TEXAS. IT IS AGREED THAT ANY ADMINSTRATIVE LAW ACTION BROUGFIT TO ENFORCE OR CONSTRUE THE TERMS OR PROVISIONS HEREOF OR TO ENJOIN OR REQUIRE THE PERFORMANCE OF ANY ACT IN CONNECTION HEREWITH, SHALL BE BROUGHT AT THE PUC OR ITS SUCCESSOR AGENCIES. 10. Construction and Severability. If this Agreement, or any word, clause, sentence, paragraph or other part thereof, shall be susceptible to more than one or conflicting interpretations, then the interpretation which is more nearly in accordance with the general purposes and objectives of this Agreement shall govern. In the event one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 11. Unintended Omission. If any punctuation, word, clause, sentence or provision necessary to give meaning, validity or effect to any other word, clause, sentence or provision appearing in this Agreement shall be omitted herefrom, then it is hereby declared that such omission was unintentional and that the omitted punctuation, word, clause, sentence or provision shall be supplied by inference. 12. Amendment. This Agreement may not be amended or terminated except by an instrument signed by all parties to this Agreement. 13. Entire Agreement. This Agreement reflects the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings of the parties in connection herewith. 14. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall be construed as one and the same instrument. WHEREFORE, this Agreement is executed this day of 2017, Texas. [Signature Pages Attached] (00278825) Triple H Development, LLC By:_ Name: Title: Date: (00275825) Gree Special U,�i�tg District By: �d ennis Dreyer, President Date: (00278825) City of Schertz, a Texas municipal corporation By: _ Name: Title: Date: {00278825) EXHIBIT A {00278825) AALLIES UNIT 1 2 & 3 IN a 0 100200 400 600 800 1,000 Feet "k EXHIBIT B nilr K IES COVE SUBONGICN, UNTT 3 ALL .1 T ----------- -- rc- CDSryivar,y 1002788251 �-TjL`fl T,`L" 'ET IL 6 1. I ell lVi TSB ilkkl. L' T ;J L LLC ,,AM A14E 01, Maus; var. STATE OF TEXAS COUNTY OF REXAR field note description of a 15.93 acre traC. of land . being a portion of a called 25.00 acre tract of land as described in a deed to Triple H Development, recorded in volume 15123, Page SODS of the Official Public :Records of i exar County, Texas and a portion of a called 61.86 acre tract of land as described in a dealt to Triple H Development recorded in voltmw 18124, Page 2263 of the Official Public Records of Bexar county, Texas laid 1S93 acre tract of land being more particularly described in mares and bounds as full owes; COMMENCING at a one half Inch rod found on the northeast noltt -oE -wag line of F M 15975 for the wet Corner of a called at pis acre tract of land as described in deed to Triple H Development„ recorded in VOmble 1892:6, :Page 2263 of the Official Public Records of Bexar county, Texas Laid point having coardinates of north` 1372870@Z5 and ean:'. 2213845.113. THENCE cutting across the aforesaid. 6186 acre tract of Sand, South tit' 01' 30' West, a distance of 1326.93 feet to a point for: the point of BEGINNING of the herein described 15 93 acre tract of land: Said paint tieing on the western line of a Called 20 acre tract 06 land as described €n'solumet 6795, Page 1796 of the O„idat Public Records of framer Coursty vexes: Said point having cooaciblates of north'. 33723033:73 and ea3%221564&76 THENCE with the western line of the aforesaid 20 :acre tract of land,, south 30 IT 55" East, a durance of 226.57 feet: to a iscim fog the south corner of the aforesaid 20 acre voist of land and being tm6the northern fine of the aforesaid Z5,00 acre tractof land. THENCE with the northern line of tine aforesaid 25.00 acre tract of @and North 59° 41" 07' East, a distance 0'967.69 feet to a POiFkt for the north corner of the aforesaid 25 00 acre tract of land. THENCE with the eastern line of the aforesaid 25:Cd acre tract of land, South Se 02' i9" East,: a distance of 237:75 feet and South 29'1W Oki-East, a daita3Ke of 277.66 feet to a pint for the east Cotner of the aforesaid 25. c, acre tract of laud, THENCE with the southern line of the aforesaid 25.00 acre tract of land, South 59' 41' 07° West,: a distance of 1487,35 feet to a. paint far the south corner of the herein described 35•.93 acre tract of land. THENCE with a western line of this tract, North Oa° 47 53" East, adistance of 909,65 feet to the IPOWT OF BEGINNING, These best notes were prepared `roe an on the ground survey made by onwsii, amployees under :my direction and supeMsion on May 21; 2016 Surer plat prepared this same date. Jerry D. Wirilie,.1r_ Registered Professions I Land 5uruevor.NO. 4724 Firm UUmber 10199153 JANV 11j (00278823) Agenda No. 13 Cpl1fM4 a 0L,Us 1a U 10IU [o7 71►`I 111101 City Council Meeting: August 29, 2017 Department: Public Works Subject: Ordinance No. 17 -M -35 — Ordinance amending The City of Schertz Code of Ordinances by establishing fees for Wireless Network Nodes, Node Support Poles and Transport Facilities desiring to be placed in the Public Right of Way, declaring an emergency and providing an effective date of September 1, 2017 First and Final :• GJXN►/ ►1 The 85th Legislature passed Senate Bill 1004 that establishes uniform regulations that cities can utilize in the regulation of wireless network equipment being placed in the public right of way. This legislation restricts what cities can do and allows for fees to be collected in the limited regulation that cities can provide. This ordinance will establish the state allowed fees in the City's fee schedule so that they can be collected to help offset the additional cost of regulating wireless network provider activities in the public rights of way. The fees being set are those specifically spelled out by SB 1004. In order to charge these fees to the initial wireless providers we anticipate will be desiring to place equipment in our rights of way on September 1, this ordinance must be in place prior to applications being received. FISCAL IMPACT It is anticipated that at least three applications will be filed on September 1, 2017. It is unknown what the overall demand will be throughout the next fiscal year but it is anticipated the revenue will be minimal. RECOMMENDATION Staff recommends the City Council approve Ordinance No. 17 -M -35, amending Appendix C of the Code of Ordinances on first and final reading. ATTACHMENTS Ordinance No. 17 -M -35 Fee Schedule Amendment SB 1004 WHEREAS, the City of Schertz, Texas ( "City ") recognizes that the State of Texas has delegated to the City the fiduciary duty, as a trustee, to manage the public right -of. -way for the health, safety, and welfare of the public to Texas municipalities; and WHEREAS, Chapter 284 of the Texas Local Government Code ( "the Code ") allows certain wireless network providers to install in the City's public rights -of -way their wireless facilities, described and defined in Section 284.002 of the Code as "Micro Network Nodes ", `Network Nodes ", "Node Support Poles ", and "Transport Facilities"; and WHEREAS, the City of Schertz (the "City ") has established by ordinances and resolutions for fees for licenses, permits, and services provided by the City; and WHEREAS, Chapter 284 of the Code allows the City to charge fees for permit applications, right of way usage and rental, placing poles within the right of way and placing transport facilities within the right of way; and WHEREAS, the City Council desires to regulate the installation of Network Nodes, Network Support Poles and Transport Facilities pursuant to Chapter 284 of the Code in a way that is fair, reasonable and nondiscriminatory. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: SECTION 1. All persons, firms, or corporations applying for licenses or permits or receiving other City services described on Exhibit A that require the payment of a fee incident to such application or service shall pay the fees as prescribed in the Fee Schedule attached hereto as Exhibit A and made a part of hereof. It shall be a violation of this Ordinance to conduct any activity or commence any use or receive any service for which payment of a fee described herein is required until such fee has been paid (if required to be paid in advance) or to fail to pay such fee when properly billed. SECTION 2. This Ordinance shall be cumulative of all provisions of ordinances and of the Code of Ordinances of the City of Schertz, Texas as to the fees set forth on Exhibit A effect on the effective date of this Ordinance, except where the provisions of this Ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event the conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 3. The City Council may, from time to time, by ordinance add to the fees set forth on Exhibit A, and the fees now or hereafter set forth on Exhibit A may be modified from time to time by resolution of the City Council. SECTION 4. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this Ordinance are severable, and if any phrase, clause, sentence, paragraph, or section of this Ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections of this Ordinance, since the same would have been enacted by the City Council without the incorporation in this Ordinance of any such unconstitutional phrase, clause, sentence, paragraph, or section. SECTION 5. Subject to the last sentence of this Section, any person, firm, or corporation who violates, disobeys, omits, neglects, or refuses to comply with or who resists the enforcement of any of provisions of this Ordinance shall be fined not more than Five Hundred Dollars ($500.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. If any other ordinance, including the Code of Ordinances, establishes a different penalty for the failure to pay any fee on Exhibit A, the provisions of such other ordinance or the Code of Ordinances shall control with respect to such penalty. SECTION 6. All rights and remedies of the City are expressly saved as to any and all violations of the provisions of the Code of Ordinances in effect on the effective date of this Ordinance and modified by this Ordinance or any other ordinances in effect on the effective date of this Ordinance and modified by this Ordinance and requiring the payment of fees for licenses, permits, and other services provided by the City which have accrued on the effective date of this Ordinance; and any and all accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, shall not be affected by this Ordinance but may be prosecuted until final disposition by the courts. SECTION 7. It is hereby officially found and determined that, pursuant to the authority given the City Council under Section 4.09(e) of the Charter of the City of Schertz, an emergency exists requiring this ordinance to be voted upon and rejected or passed at the meeting at which it was first introduced. SECTION 8. This Ordinance shall be in full force and effect as of September 1, 2017. . Mayor, City of Schertz City Secretary, City of Schertz, Texas City of Schertz Schedule of Fees lWireless 1 2017 -181 Network Nodes Application Fee, for up to 5 nodes $ 500.00 additional for each node over 5 on the application $ 250.00 Annual Public Right of Way Fee $ 250.00 Node Support Pole Application Fee $1,000.00 Colocation Fee for Network Nodes on City Service Poles, per pole $ 20.00 Transport Facilities Application Fee, for up to 5 nodes $ 500.00 additional for each node over 5 on the application $ 250.00 Rental Fee for Transport Facilities, per device per month, not to exceed the aggregate "per node" fee $ 28.00 11 Uffew-WAWN S.B. No. 1004 2 relating to the deployment of network nodes in public right -of -way; 3 authorizing fees. 4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 5 SECTION 1. Subtitle A, Title 9, Local Government Code, is 6 amended by adding Chapter 284 to read as follows: 7 CHAPTER 284. DEPLOYMENT OF NETWORK NODES IN PUBLIC RIGHT-OF-WAY 8 SUBCHAPTER A. GENERAL PROVISION1 9 Sec. 284.001. FINDINGS AND POLICY. (a) The legislature 10 finds that: 11 (1) network nodes are instrumental to increasin 12 access to advanced technolouv and information for the citizens of 13 this state and thereby further an important public policy of having 14 reliable wireless networks and services; 15 (2) this state has delegated to each municipality the 16 fiduciary duty, as a trustee, to manage the public right-of-way for 17 the health, safety, and welfare of the public, subject to state law; 18 (3) network nodes often may be deployed most 19 effectively in the public right-of-way; 20 (4) network providers' access to the public 21 right-of-way and the ability to attach network nodes to poles and 22 structures in the public right-of-way allow network providers to 23 densify their networks and provide next - generation services; 24 (5) expeditious processes and reasonable and 11 S.B. No. 1004 1 nondiscriminatory terms, conditions, and compensation for use of 2 the public right -of-wav for network node deDlovments are essential 3 to state-of-the-art wireless services and thereby further an 17 valuable public asset, 10 (8) requirements 4 important this chapter regarding fees, public policy of having reliable wireless networks and 5 services; 6 (6) network nodes help ensure that this state remains 7 competitive in the global economy; 8 (7) the timely permitting of network nodes in the 9 public right -of -way is a matter of statewide concern and interest; its of a 17 valuable public asset, 10 (8) requirements of this chapter regarding fees, 11 charges, rates, and public right-of-way management, when 12 considered with fees charged to other public right-of-way users 13 under this code, are fair and reasonable and in compliance with 47 14 U.S.C. Section 253 15 16 fiduciary (9) to the responsibility extent this state has to municipalities as delegated managers its of a 17 valuable public asset, the public right-of-way, this state is 18 acting in its role as a landowner in balancing the needs of the 19 public and the needs of the network providers by allowing access to 20 the public right -of-wav to place network nodes in the public 21 right -of -way strictly within the terms of this chapter; and 22 23 (10) as municipalities, this to each municipality, state has determined that including home-rule it is reasonable and 24 necessary to allow access to the public right-of-way for the 25 purposes of deploying network nodes to protect and safeguard the 26 health, safety, and welfare of the public as provided by this 27 chapter. I S.B. No. 1004 1 (b) In order to safeguard the health, safety, and welfare of 2 the public, it is the policy of this state to promote the adoption 3 of and encourage competition in the provision of wireless services 4 by reducing the barriers to entry for providers of services so that 5 the number and types of services offered by providers continue to 6 increase through competition. 7 (c) It is the policy of this state, subject to state law and 8 strictly within the reauirements and limitations nrescribed by this 9 chapter, that municipalities: 10 (1) retain the authority to manage the public 11 right-of-way to ensure the health, safety, and welfare of the 12 public; and 13 (2) receive from network providers fair and reasonable 14 comnensation for use of the nublic right-of-wav and for collocation 15 on poles. 16 Sec. 284.002. DEFINITIONS. In this chapter: 17 (1) "Antenna" means communications equipment that 18 transmits or receives electromagnetic radio frequency signals used 19 in the provision of wireless services. 20 (2) "Applicable codes" means: 21 (A) uniform building, fire, electrical, 22 plumbing, or mechanical codes adopted by a recognized national code 23 organization; and 24 (B) local amendments to those codes to the extent 25 not inconsistent with this chapter. 26 (3) "Collocate" and "collocation" mean the 27 installation, mounting, maintenance, modification, operation, or 3 S.B. No. 1004 1 replacement of network nodes in a public right-of-way on or 2 adjacent to a pole. 3 (4) "Decorative pole" means a streetlight pole 4 specially designed and placed for aesthetic purposes and on which 5 no appurtenances or attachments, other than specially designed 6 informational or directional signage or temporary holiday or 7 special event attachments, have been placed or are permitted to be 8 placed according to nondiscriminatory municipal codes. 9 (5) "Design district" means an area that is zoned, or 10 otherwise designated by municipal code, and for which the city 11 maintains and enforces unique design and aesthetic standards on a 12 uniform and nondiscriminatory basis. 13 (6) "Historic district" means an area that is zoned or 14 otherwise designated as a historic district under municipal, state 15 or federal law. 16 (7) "Law" means common law or a federal, state, or 17 local law, statute, code, rule, regulation, order, or ordinance. 18 (8) "Macro tower" means a guyed or self-supported pole 19 or monopole greater than the height parameters prescribed by 20 Section 284.103 and that supports or is ca-nable of suiD-oortin 21 antennas. 22 (9) "Micro network node" means a network node that is 23 not larger in dimension than 24 inches in length, 15 inches in 24 width, and 12 inches in height, and that has an exterior antenna, if 25 any, not longer than 11 inches. 26 (10) "Municipally owned utility pole" means a utility 27 pole owned or operated by a municipally owned utility, as defined by M S.B. No. 1004 1 Section 11.003, Utilities Code, and located in a public 2 right-of-way. 3 (11) "Municipal park" means an area that is zoned or 4 otherwise designated by municipal code as a public park for the 5 purpose of recreational activity. 6 (12) "Network node" means equipment at a fixed 7 location that enables wireless communications between user 8 equipment and a communications network. The term: 9 (A) includes: 10 (i) equipment associated with wireless 11 communications; 12 (ii) a radio transceiver, an antenna, a 13 battery-only backup power supply, and comparable equipment, 14 recrardless of technological configuration; and 15 (iii) coaxial or fiber-optic cable that is 16 immediately adlacent to and directiv associated with a narticular 17 collocation; and 18 (B) does not include: 19 (i) an electric generator; 20 (ii) a pole; or 21 (iii) a macro tower. 22 (13) "Network provider" means: 23 (A) a wireless service provider; or 24 (B) a person that does not provide wireless 25 services and that is not an electric utility but builds or installs 26 on behalf of a wireless service nrovider: 27 (i) network nodes; or 5 S.B. No. 1004 1 (ii) node support poles or any other 2 structure that supports or is capable of supporting a network node. 3 (14) "Node support pole" means a pole installed by a 4 network provider for the primary purpose of supporting a network 5 node. 6 (15) "Permit" means a written authorization for the 16 (18) "Public right-of-way" 7 use of the public right-of-way or collocation on a service pole 8 reauired from a municinalitv before a network nrovider may perform 9 an action or initiate, continue, or complete a project over which 10 the municipality has police power authority. 11 (16) "Pole" means a service pole, municipally owned 12 utility pole, node support pole, or utility pole. 13 (17) "Private easement" means an easement or other 14 real property right that is onlv for the benefit of the crrantor and 15 grantee and their successors and assigns. 16 (18) "Public right-of-way" means the area on, below, 17 or above a public roadway, highway, street, public sidewalk, alley, 18 waterway, or utility easement in which the municipality has an 19 interest. The term does not include: 20 (A) a private easement; or 21 (B) the airwaves above a public right -of -way with 22 regard to wireless telecommunications. 23 (19) "Public right-of-way management ordinance" means 24 an ordinance that complies with Subchapter C. 25 (20) "Public right-of-way rate" means an annual rental 26 charge paid by a network provider to a municipality related to the 27 construction, maintenance, or operation of network nodes within a 0 S.B. No. 1004 1 public right-of-wav in the municiDalit 2 (21) "Service pole" means a pole, other than a 3 municipally owned utility pole, owned or operated by a municipality 4 and located in a public right-of-way, including: 5 (A) a pole that supports traffic control 6 functions; 7 (B) a structure for signage; 8 (C) a pole that supports liqhtinq, other than a 9 decorative pole; and 10 (D) a pole or similar structure owned or operated 11 by a municipality and supporting only network nodes. 12 (22) "Transport facility" means each transmission 13 path physically within a public right-of-way, extending with a 14 nhvsical line from a network node directly to the network, for the 15 purpose of -orovidinu backhaul for network nodes. 16 (23) "Utility pole" means a pole that provides: 17 (A) electric distribution with a voltage rating 18 of not more than 34.5 kilovolts; or 19 (B) services of a telecommunications provider, 20 as defined by Section 51.002, Utilities Code. 21 (24) "Wireless service" means any service, using 22 licensed or unlicensed wireless spectrum, including the use of 23 Wi-Fi, whether at a fixed location or mobile, provided to the public 24 using a network node. 25 (25) "Wireless service provider" means a person that 26 provides wireless service to the public. 27 Sec. 284.003. LIMITATION ON SIZE OF NETWORK NODES. VA S.B. No. 1004 1 (a) Except as provided by Section 284.109, a network node to which 2 this chapter applies must conform to the following conditions: 3 (1) each antenna that does not have exposed elements 4 and is attached to an existing structure or pole: 5 (A) must be located inside an enclosure of not 6 more than six cubic feet in volume; 7 (B) may not exceed a height of three feet above 8 the existing structure or pole ; and 9 (C) may not protrude from the outer circumference 10 of the existing structure or pole by more than two feet; 11 (2) if an antenna has exposed elements and is attached 12 to an existing structure or pole, the antenna and all of the 13 antenna's exposed elements: 14 (A) must fit within an imaginary enclosure of not 15 more than six cubic feet; 16 (B) may not exceed a height of three feet above 17 the existing structure or pole; and 18 (C) may not protrude from the outer circumference 19 of the existing structure or pole by more than two feet; 20 (3) the cumulative size of other wireless equipment 21 associated with the network node attached to an existing structure 22 or pole may not: 23 (A) be more than 28 cubic feet in volume; or 24 (B) protrude from the outer circumference of the 25 existing structure or pole by more than two feet; 26 (4) ground -based enclosures, separate from the pole, 27 may not be higher than three feet six inches from grade, wider than F-01 S.B. No. 1004 1 three feet six inches, or deeper than three feet six inches; and 2 (5) pole-mounted enclosures may not be taller than 3 five feet. 4 (b) The following tvpes of associated ancillary equipment 5 are not included in the calculation of equipment volume under 6 Subsection (a) : 7 (1) electric meters; 8 (2) concealment elements; 9 (3) telecommunications demarcation boxes; 10 (4) grounding equipment; 11 (5) power transfer switches; 12 (6) cut-off switches; and 13 (7) vertical cable runs for the connection of power 14 and other services. 15 (c) Equipment attached to node support poles may not 16 protrude from the outer edge of the node support pole by more than 17 two feet. 18 (d) Equipment attached to a utility pole must be installed 19 in accordance with the National Electrical Safety Code, subject to 20 applicable codes, and the utility Dole owner's construction 21 standards. 22 SUBCHAPTER B. USE OF PUBLIC RIGHT-OF-WAY 23 Sec. 284.051. APPLICABILITY OF SUBCHAPTER. This subchapter 24 applies only to activities related to transport facilities for 25 network nodes, activities of a network provider collocating network 26 nodes in the public right-of-wav or installing, constructing. 27 operating, modifying, replacing, and maintaining node support 0 S.B. No. 1004 1 poles in a public right-of-way, and municipal authority in relation 2 to those activities. 3 Sec. 284.052. EXCLUSIVE USE PROHIBITED. A municipality may if any, in the consumer price index. 4 not enter into an exclusive arrangement with any person for use of 25 5 the public right-of-way for the construction, operation, each network 6 marketing, or maintenance of network nodes or node support poles. to the first 7 Sec. 284.053. ANNUAL PUBLIC RIGHT-OF-WAY RATE. (a) A 8 nublic right -of-wav rate for use of the public right -of-wav may not 9 exceed an annual amount equal to $250 multiplied by the number of 10 network nodes installed in the public right-of-way in the 11 municipality's corporate boundaries. 12 (b) At the municipality's discretion, the municipality may 13 charge a network provider a lower rate or fee if the lower rate or 14 fee is: 15 (1) nondiscriminatory; 16 (2) related to the use of the public right -of -way; and 17 ( 3 ) not a prohibited gift of public property. 18 Sec. 284.054. PUBLIC RIGHT-OF-WAY RATE ADJUSTMENT. (a) In 19 this section, "consumer price index" means the annual revised 20 Consumer Price Index for All Urban Consumers for Texas, as 21 published by the federal Bureau of Labor Statistics. 22 (b) A municipality may adjust the amount of the public 23 right -of -way rate not more often than annually by an amount equal to 24 one-half the annual change, if any, in the consumer price index. 25 The municipality shall provide written notice to each network 26 nrovider of the new rate, and the rate shall apply to the first 27 payment due to the municipality on or after the 60th day following MCI S.B. No. 1004 1 that notice. 2 Sec. 284.055. USE OF PUBLIC RIGHT -OF -WAY AND APPLICABLE 3 RATE. ( a) A network provider that wants to connect a network node 4 to the network using the public right -of -way may: 5 (1) install its own transport facilities subject to 6 Subsection (b) ; or 7 (2) obtain transport service from a person that is 8 paving municipal fees to occupv the public right -of -wav that are 9 the equivalent of not less than $28 per node per month. 10 (b) A network provider may not install its own transport 11 facilities unless the provider: 12 ( 1) has a permit to use the public right -of -way; and 13 (2) pays to the municipality a monthly public 14 right -of -wav rate for transport facilities in an amount eaual to 15 $28 multiplied by the number of the network provider's network 16 nodes located in the public right -of -way for which the installed 17 transport facilities provide backhaul unless or until the time the 18 network provider's payment of municipal fees to the municipality 19 exceeds its monthly aggregate per -node compensation to the 20 municipality. 21 (c) A public right -of -way rate required by Subsection (b) is 22 in addition to any public right -of -way rate required by Section 23 284.053. 24 Sec. 284.056. COLLOCATION OF NETWORK NODES ON SERVICE 25 POLES. A municipality, subject to an agreement with the 26 municipality that does not conflict with this chapter, shall allow 27 collocation of network nodes on service poles on nondiscriminatory Ali S.B. No. 1004 1 terms and conditions and at a rate not greater than $20 per year per 2 service pole. 3 Sec. 284.057. PROHIBITION ON OTHER COMPENSATION. A 4 municipality may not require a network provider to pay any 5 compensation other than the compensation authorized by this chapter 6 for the right to use a public right-of-way for network nodes, node 7 support poles, or transport facilities for network nodes. 8 SUBCHAPTER C. ACCESS AND APPROVALS 9 Sec. 284.101. RIGHT OF ACCESS TO PUBLIC RIGHT-OF-WAY. 10 (a) Except as specifically provided by this chapter, and subject 11 to the requirements of this chapter and the approval of a permit 12 application, if required, a network provider is authorized, as a 13 permitted use, without need for a special use permit or similar 14 zoning review and not subject to further land use aDnroval, to do 15 the following in the public right-of-way: 16 (1) construct, modify, maintain, operate, relocate, 17 and remove a network node or node support pole; 18 (2) modify or replace a utility pole or node support 19 pole; and 20 (3) collocate on a pole, subject to an agreement with 21 the municipality that does not conflict with this chapter. 22 (b) A network provider taking an action authorized by 23 Subsection (a) is subject to applicable codes, including applicable 24 public right -of -way management ordinances. 25 Sec. 284.102. GENERAL CONSTRUCTION AND MAINTENANCE 26 REOUIREMENTS. A network provider shall construct and maintain 27 network nodes and node support poles described by Section 284.101 11H S.B. No. 1004 1 in a manner that does not: 2 (1) obstruct, impede, or hinder the usual travel or 3 public safety on a public right -of -way; 4 ( 2 ) obstruct the legal use of a public right-of-way by 5 other utility providers; 6 (3) violate nondiscriminatory applicable codes; 7 (4) violate or conflict with the municipality's 8 publicly disclosed public right -of -way design specifications; or 9 (5) violate the federal Americans with Disabilities 10 Act of 1990 (42 U.S. C. Section 12101 et seg. ) . 11 Sec. 284.103. GENERAL LIMITATION ON PLACEMENT OF POLES. A 12 network provider shall ensure that each new, modified, or 13 replacement utility pole or node support pole installed in a public 14 right-of-way in relation to which the network provider received 15 approval of a permit application does not exceed the lesser of: 16 (1) 10 feet in height above the tallest existing 17 utility pole located within 500 linear feet of the new pole in the 18 same public right-of-way; or 19 ( 2 ) 55 feet above ground level. 20 Sec. 284.104. INSTALLATION IN MUNICIPAL PARKS AND 21 RESIDENTIAL AREAS. (a) A network provider may not install a new 22 node support pole in a public right-of-way without the 23 municipality's discretionary, nondiscriminatory, and written 24 consent if the public right-of-way is in a municipal park or is 25 adjacent to a street or thoroughfare that is: 26 (1) not more than 50 feet wide; and 27 (2) adjacent to single-family residential lots or III S.B. No. 1004 1 other multifamily residences or undeveloped land that is designated 2 for residential use by zoning or deed restrictions. 3 (b) In addition to the requirement prescribed by Subsection 4 (a), a network provider installing a network node or node support 5 pole in a public right-of-way described by Subsection (a) shall 6 comply with private deed restrictions and other private 7 restrictions in the area that apply to those facilities. 8 Sec. 284.105. INSTALLATION IN HISTORIC OR DESIGN DISTRICTS. 9 (a) A network provider must obtain advance approval from a 10 municipality before collocating new network nodes or installing new 11 node support poles in an area of the municipality zoned or otherwise 12 designated as a historic district or as a design district if the 13 district has decorative poles. As a condition for approval of new 14 network nodes or new node support noles in a historic district or a 15 design district with decorative poles, a municipality may require 16 reasonable design or concealment measures for the new network nodes 17 or new node support poles. A municipality may request that a 18 network provider comply with the design and aesthetic standards of 19 the historic or design district and explore the feasibility of 20 using certain camouflage measures to improve the aesthetics of the 21 new network nodes, new node support poles, or related ground 22 equipment, or any portion of the nodes, poles, or equipment, to 23 minimize the impact to the aesthetics in a historic district or on a 24 design district's decorative poles. 25 (b) This section may not be construed to limit a 26 municipality's authority to enforce historic preservation zoning 27 regulations consistent with the preservation of local zoning S.B. No. 1004 1 authority under 47 U.S.C. Section 332(c)(7), the requirements for 2 f acility modif ications under 47 U.S.C. Section 1455(a), or the 3 National Historic Preservation Act of 1966 (54 U.S.C. Section 4 300101 et seg. ), and the regulations adopted to implement those 5 laws. 6 Sec. 284.106. EQUIPMENT CABINETS. A network provider shall 7 ensure that the vertical height of an equipment cabinet installed 8 as Dart of a network node does not exceed the height limitation 9 prescribed by Section 284.003, subject to approval of the pole's 10 owner if applicable. 11 Sec. 284.107. COMPLIANCE WITH UNDERGROUNDING REQUIREMENT. 12 (a) A network provider shall, in relation to installation for 13 which the municipality approved a permit application, comply with 14 nondiscriminatory underQroundinQ reauirements. includin 15 municipal ordinances, zoning regulations, state law, private deed 16 restrictions, and other public or private restrictions, that 17 prohibit installing aboveground structures in a public 18 right -of -way without first obtaining zoning or land use approval. 19 (b) A requirement or restriction described by Subsection 20 (a) may not be interpreted to prohibit a network provider from 21 replacing an existing structure. 22 Sec. 284.108. DESIGN MANUAL. (a) A municipality may adopt 23 a design manual for the installation and construction of network 24 nodes and new node support poles in the public right-of-way that 25 includes additional installation and construction details that do 26 not conflict with this chapter. The design manual may include: 27 (1) a requirement that an industry standard pole load 11W S.B. No. 1004 1 analysis be completed and submitted to the municipality indicating 2 that the service pole to which the network node is to be attached 3 will safely support the load; and 4 (2) a requirement that network node equipment placed 5 on new and existing poles be placed more than eight feet above 6 ground level. 7 (b) A network provider shall comply with a design manual, if 8 anv, in place on the date a permit application is filed in relation 9 to work for which the municipality approved the permit application. 10 A municipality's obligations under Section 284.154 may not be 11 tolled or extended pending the adoption or modification of a design 12 manual. 13 Sec. 284.109. EXCEPTIONS. Subject to Subchapter D, a 14 network provider may construct, modify, or maintain in a public 15 right-of-way a network node or node support pole that exceeds the 16 height or distance limitations prescribed by this chapter only if 17 the municipality approves the construction, modification, or 18 maintenance subject to all applicable zoning or land use 19 regulations and applicable codes. 20 Sec. 284.110. DISCRIMINATION PROHIBITED. A municiDalit 21 in the exercise of the municipality's administrative and regulatory 22 authority related to the management of and access to the public 23 right-of-way, must be competitively neutral with regard to other 24 users of the public right-of-way. 1 111 11i 11111:101i 11 1:111 26 Sec. 284.151. PROHIBITION OF CERTAIN MUNICIPAL ACTIONS. 27 (a) Except as otherwise provided by this chapter, a municipality 110 S.B. No. 1004 1 may not prohibit, regulate, or charge for the installation or 2 collocation of network nodes in a public right- of -way. 3 (b) A municipality may not directly or indirectly require, require a 16 network provider to obtain 4 as a condition for issuing a permit required under this chapter, node, node support pole, or transport facility in a public 5 that the applicant perform services unrelated to the installation 6 or collocation for which the permit is sought, including in -kind wants to install or collocate 26 7 contributions such as reserving fiber, conduit, or pole space for 8 the municipality. 9 ( c ) A municipality may not institute a moratorium, in whole 10 or in part, express or de facto, on: 11 (1) filing, receiving, or processing applications; or 12 (2) issuing permits or other approvals, if any, for 13 the installation of network nodes or node support poles. 14 Sec. 284.152. AUTHORITY TO REQUIRE PERMIT. (a) Except as 15 otherwise provided by this chapter, a municipality may require a 16 network provider to obtain one or more permits to install a network 17 node, node support pole, or transport facility in a public 18 right -of -way if the permit: 19 ( 1) is of general applicability to users of the public 20 right -of -wa 21 ( 2 ) does not apply exclusively to network nodes; and 22 (3) is processed on nondiscriminatory terms and 23 conditions regardless of the type of entity submitting the 24 application for the permit. 25 (b) A network provider that wants to install or collocate 26 multiple network nodes inside the territorial jurisdiction of a 27 single municipality is entitled to file a consolidated permit III S.B. No. 1004 1 application with the municipality for not more than 30 network 2 nodes and receive permits for the installation or collocation of 3 those network nodes. 4 Sec. 284.153. GENERAL PROCESS RELATING TO PERMIT 5 APPLICATION. (a) Except as otherwise provided by this section, a 6 municipality may not require an applicant to provide more 7 information to obtain the permit than a telecommunications utility 8 that is not a network provider is reauired to nrovide unless the 9 information directly relates to the reauirements of this chanter . 10 (b) As part of the standard form for a permit application, a 11 municipality may require the applicant to include applicable 12 construction and engineering drawings and information to confirm 13 that the applicant will comply with the municipality's publicly 14 disclosed public right-of-wav design specifications and applicable 15 codes. 16 (c) A municipality may require an applicant to provide: 17 (1) information reasonably related to the provider's 18 use of the public right-of-way under this chapter to ensure 19 compliance with this chapter; 20 (2) a certificate that the network node complies with 21 applicable regulations of the Federal Communications Commission; 22 and 23 (3) certification that the proposed network node will 24 be placed into active commercial service by or for a network 25 provider not later than the 60th day after the date the construction 26 and final testing of the network node is completed. 27 Sec. 284.154. MUNICIPAL REVIEW PROCESS. (a) A ITIN S.B. No. 1004 1 municipality shall process each permit application on a 2 nondiscriminatory basis. 3 (b) Not later than the 30th day after the date the 4 municipality receives an application for a permit for a network 5 node or node support pole, or the 10th day after the date the 6 municipality receives an application for a permit for a transport a complete 7 facility, the municipality shall determine whether the application the application 8 is complete and notifv the applicant of that determination. If the 9 municipality determines that the application is not complete, the 10 municipality or shall specifically identify the missing information. 17 11 municipality must approve or deny an application for a (c) A municipality shall approve an application that does pole not later than the 150th day after the date the 12 not require 19 zoning or land use approval under this chapter unless application. A municipality receives a complete 13 the application or the corresponding work to be performed under the for a network node not later 14 nermit does not comply with the municiDalitv's applicable codes or 15 other municipal rules, requlations, or other law that is consistent 16 with this chapter. or deny an 17 (d) A municipality must approve or deny an application for a application for a transport 18 node support pole not later than the 150th day after the date the 19 municipality receives the complete application. A municipality receives a complete application. 20 must approve or denv an application for a network node not later 21 than the 60th day after the date the municinalitv receives the 22 complete application. A municipality must approve or deny an 23 application for a transport facility not later than the 21st day 24 after the date the municipality receives a complete application. 25 An application for a permit for a node support pole, network node, 26 or transport facility shall be deemed approved if the application 27 is not approved or denied on or before the applicable date for 110 S.B. No. 1004 1 approval or denial prescribed by this subsection. denies the application, completion 2 (e) A municipality that denies a complete application must 3 document the basis for the denial, including the specific the network 10 deficiencies 4 applicable code provisions or other municipal rules, regulations, documentation and 5 or other law on which the denial was based. The municipality shall 6 send the documentation by electronic mail to the applicant on or 7 before the date the municipality denies the application. 8 (f) Not later than the 30th day after the date the 9 municipality denies the application, completion the applicant may cure the 25 extensions of time as requested by the network 10 deficiencies identified in the denial documentation and resubmit FEES. (a) A municipality may 11 the application without paying an additional application fee, other 12 than a fee for actual costs incurred by the municipality. 13 Notwithstanding Subsection (d), the municipality shall approve or 14 deny the revised completed application after a denial not later 15 than the 90th day after the date the municipality receives the 16 completed revised application. The municipality's review of the 17 revised application is limited to the deficiencies cited in the 18 denial documentation. 19 Sec. 284.155. TIME OF INSTALLATION. (a) A network 20 provider shall begin the installation for which a permit is granted 21 not later than six months after final approval and shall diligently 22 pursue the installation to completion. 23 (b) Notwithstanding Subsection (a) , the municipality may 24 place a longer time limit on completion or grant reasonable 25 extensions of time as requested by the network provider. 26 Sec. 284.156. APPLICATION FEES. (a) A municipality may 27 charge an application fee for a permit only if the municipality 20 S.B. No. 1004 1 requires the payment of the fee for similar types of commercial 2 development inside the municipality's territorial jurisdiction 3 other than a type for which application or permit fees are not 4 allowed by law. 5 (b) The amount of an application fee charged by a 6 municipality may not exceed the lesser of: 7 (1) the actual, direct, and reasonable costs the 8 municipality determines are incurred in crrantincf or nrocessinQ an 9 application that are reasonably related in time to the time the 10 costs of granting or processing an application are incurred; or 11 (2) $500 per application covering up to five network 12 nodes, $250 for each additional network node per application, and 13 $1,000 per application for each pole. 14 (c) In determininq for purposes of Subsection (b) (1) the 15 amount of the actual, direct, and reasonable costs, the 16 municipality may not: 17 (1) include costs incurred by the municipality in 18 relation to third-party legal or engineering review of an 19 application; or 20 (2) direct payments or reimbursement of third-party 21 public right -of -way rates or fees charged on a contingency basis or 22 under a result-based arrangement. 23 Sec. 284.157. CERTAIN WORK EXEMPTED. (a) Notwithstanding 24 any other provision of this chapter, a municipality may not require 25 a network provider to submit an application, obtain a permit, or pay 26 a rate for: 27 (1) routine maintenance that does not require 21 S.B. No. 1004 1 excavation or closing of sidewalks or vehicular lanes in a public 2 right-of-way; 3 ( 2 ) replacing or upgrading a network node or pole with 4 a node or pole that is substantially similar in size or smaller and 5 that does not require excavation or closing of sidewalks or 6 vehicular lanes in a public right -of -way; or 7 (3) the installation, placement, maintenance, 8 operation, or replacement of micro network nodes that are strung on 9 cables between existing poles or node support poles, in compliance 10 with the National Electrical Safety Code. 11 (b) For purposes of Subsection (a)(2): 12 (1) a network node or pole is considered to be 13 "substantially similar" if: 14 (A) the new or upgraded network node, includinq 15 the antenna or other equipment element, will not be more than 10 16 percent larger than the existing node, provided that the increase 17 may not result in the node exceeding the size limitations provided 18 by Section 284.003; and 19 (B) the new or upgraded pole will not be more than 20 10 nercent higher than the existing pole, provided that the 21 increase may not result in the pole exceeding the applicable height 22 limitations prescribed by Section 284.103; 23 (2) the replacement or upgrade does not include 24 replacement of an existing node support pole; and 25 (3) the replacement or upgrade does not defeat 26 existing concealment elements of a node sunnort nole. 27 (c) The determination under Subsection (b)(1) of whether a 22 S.B. No. 1004 1 replacement or upgrade is substantially similar is made by 2 measuring from the dimensions of the network node or node support 3 pole as approved by the municipality. 4 (d) Notwithstanding Subsection (a) 5 (1) a municipality may require advance notice of work 6 described by that subsection; 7 (2) a network provider may replace or upgrade a pole 8 onlv with the approval of the pole's owner; and 9 (3) the size limitations may not in any event exceed 10 the parameters prescribed by Section 284.003 without the on municipally owned utility poles on 11 municipality's -approval in accordance with Section 284.109, with 12 the municipality acting on behalf of this state as the fiduciary 13 trustee of public property. 14 SUBCHAPTER E. ACCESS TO MUNICIPALLY OWNED UTILITY POLES 15 Sec. 284.201. USE OF MUNICIPALLY OWNED UTILITY POLES. 16 (a) The governing body of a municipally owned utility shall allow 17 collocation of network nodes on municipally owned utility poles on 18 nondiscriminatory terms and conditions and pursuant to a negotiated 19 pole attachment agreement, including any applicable permitting 20 requirements of the municipally owned utility. 21 (b) The annual pole attachment rate for the collocation of a 22 network node supported by or installed on a municipally owned 23 utility pole shall be based on a pole attachment rate consistent 24 with Section 54.204, Utilities Code, applied on a per -foot basis._ 25 (c) The requirements of Subchapters B, C, and D applicable 26 to the installation of a network node supported by or installed on a 27 pole do not apply to a network node supported by or installed on a 23 S.B. No. 1004 1 municipally owned utility pole._ 2 SUBCHAPTER F. EFFECT ON OTHER UTILITIES AND PROVIDERS 3 Sec. 284.251. DEFINITIONS. In this subchapter: 4 (1) "Cable service" and "video service" have the 5 meanings assigned by Section 66.002, Utilities Code. 6 (2) "Electric cooperative" has the meaning assigned by 7 Section 11.003, Utilities Code. 8 (3) "Electric utility" has the meaning assigned b 9 Section 31.002, Utilities Code._ 10 (4) "Telecommunications provider" has the meaning 11 assigned by Section 51.002, Utilities Code. 12 (5) "Telephone cooperative" has the meaning assigned 13 by Section 162.003, Utilities Code. 14 Sec. 284.252. EFFECT ON INVESTOR-OWNED ELECTRIC UTILITIES 15 ELECTRIC COOPERATIVES, TELEPHONE COOPERATIVES, AND 16 TELECOMMUNICATIONS PROVIDERS. Nothing in this chapter shall govern 17 attachment of network nodes on poles and other structures owned or 18 operated by investor-owned electric utilities, electric 19 cooperatives, telephone cooperatives, or telecommunications 20 providers. This chapter does not confer on municipalities anv new 21 authority over those utilities, cooperatives, or providers. 22 Sec. 284.253. EFFECT ON PROVIDERS OF CABLE SERVICES OR 23 VIDEO SERVICES. (a) An approval for the installation, placement, 24 maintenance, or operation of a network node or transport facility 25 under this chapter may not be construed to confer authorization to 26 provide: 27 (1) cable service or video service without complying 24 S.B. No. 1004 1 with all terms of Chapter 66, Utilities Code; or 2 (2) information service as defined by 47 U.S.C. 3 Section 153(24), or telecommunications service as defined by 47 4 U.S.C. Section 153(53), in the public right-of-way. 5 (b) Except as provided by this chapter, a municipality may 6 not adopt or enforce any regulations or requirements that would 7 require a wireless service provider, or its affiliate, that holds a 8 cable or video franchise under Chapter 66, Utilities Code, to 9 obtain any additional authorization or to pay any fees based on the right -of -way that apply to all persons subject 15 and permitting 10 provider's provision of wireless service over its network nodes. 11 SUBCHAPTER G. GENERAL CONDITIONS OF ACCESS 12 Sec. 284.301. LOCAL POLICE-POWER-BASED REGULATIONS. 13 (a) Subject to this chapter and applicable federal and state law, 14 a municipality may continue to exercise zoning, land use, planning, 19 right -of -way that apply to all persons subject 15 and permitting authority in the municipality's boundaries, police-power-based 16 including with respect to utility poles._ 17 (b) A municipality may exercise that authority to impose 18 police-power-based regulations for the management of the public 19 right -of -way that apply to all persons subject to the municipality. 20 (c) A municipality may impose police-power-based 21 regulations in the management of the activities of network 22 providers in the public right-of-way only to the extent that the 23 regulations are reasonably necessary to protect the health, safety, 24 and welfare of the public. 25 Sec. 284.302. INDEMNIFICATION. The indemnification 26 provisions of Sections 283.057(a) and (b) apply to a network 27 provider accessing a public right -of -way under this chapter. 25 S.B. No. 1004 1 Sec. 284.303. RELOCATION. Except as provided in existing 2 state and federal law, a network provider shall relocate or adjust 3 network nodes in a public right-of-way in a timely manner and 4 without cost to the municipality managing the public right -of -way. 5 Sec. 284.304. INTERFERENCE. (a) A network provider shall 6 operate all network nodes in accordance with all applicable laws, 7 including regulations adopted by the Federal Communications 8 Commission. 9 (b) A network provider shall ensure that the operation of a 10 network node does not cause any harmful radio frequency 11 interference to a Federal Communications Commission-authorized 12 mobile telecommunications operation of the municipality operating 13 at the time the network node was initially installed or 14 constructed. On written notice, a network provider shall take all 15 steps reasonably necessary to remedv anv harmful interference. 16 SECTION 2. (a) In this section, "collocation," "network 17 node," "network provider," and "public right-of-way" have the 18 meanings assigned by Section 284.002, Local Government Code, as 19 added by this Act. 20 (b) Public/private agreements between a municipality and a 21 network provider for the deployment of network nodes in the public 22 right-of-way on fair and reasonable terms as provided by Chapter 23 284, Local Government Code, as added by this Act, and corresponding 24 ordinances governing that deployment, are necessary to protect the 25 health, safety, and welfare of the public by facilitating robust 26 and dependable wireless networks. Accordingly, those agreements 27 and ordinances shall be conformed as provided by this section. W! S.B. No. 1004 1 (c) Subject to Subsection (d) of this section, the rates, 2 terms, and conditions of agreements and ordinances entered into or 3 enacted before the effective date of this Act shall apply to all 4 network nodes installed and operational before the effective date 5 of this Act. 6 (d) For all network nodes installed and operational on or 7 after the effective date of this Act: 8 (1) if a rate, term, or condition of an agreement or 9 ordinance related to the construction, collocation, operation, 10 modification, or maintenance of network nodes does not comply with 11 the requirements of Chapter 284, Local Government Code, as added by 12 this Act, a municipality shall amend the agreement or ordinance to 13 comply with the requirements of Chapter 284, Local Government Code, 14 as added by this Act, and the amended rates, terms, or conditions 15 shall take effect for those network nodes on the six-month 16 anniversary of the effective date of this Act; and 17 (2) the rates, terms, and conditions of each agreement 18 executed, and each ordinance enacted, on or after the effective 19 date of this Act shall comply with the requirements of Chapter 284, 20 Local Government Code, as added by this Act. 21 SECTION 3. This Act takes effect September 1, 2017. 27 S.B. No. 1004 President of the Senate Speaker of the House I hereby certify that S.B. No. 1004 passed the Senate on April 6, 2017, by the following vote: Yeas 29, Nays 0, two present not voting; and that the Senate concurred in House amendment on May 25, 2017, by the following vote: Yeas 29, Nays 0, two present not voting. Secretary of the Senate I hereby certify that S.B. No. 1004 passed the House, with amendment, on May 18, 2017, by the following vote: Yeas 140, Nays 6, two present not voting. Approved: Date Governor W-0 Chief Clerk of the House