2017-244ORDINANCE NO. 2017-244
AN ORDINANCE OF THE CITY OF DENTON ADOPTING AND APPROVING A
UNIFORM CHAPTER 284 SERVICE POLE WIRELESS NETWORK NODE
COLLOCATION ATTACHMENT LICENSE AGREEMENT; AUTHORIZING THE
CITY MANAGER OR DESIGNEE TO EXECUTE SAID AGREEMENTS; AND
PROVIDING AN EFFECTIVE DATE.
WH�;R�AS, Network Providers ("Licensee") may Collocate Attachments to and
on the City's Service Poles that are in the Public Right-of-Way to the extent allowed by
Chapter 284, Tex. Local Gov't Code; 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 terms 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, sets 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 City laws, the City's
Design Manual, 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 Municipally
Owned 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 in the attached "Service Pole
Wireless Network Node Collocation Attachment License Agreement", and pursuant to
Permits issued by the City Engineer; and
WHEREAS the terms "Collocate" "Collocation" "Attachment" "Service
, , , ,
Poles", "Public Right-of-Way", "Network Nodes", "Design Manual" and "Permits" are
used as the same are defined in Ch. 284, Tex. Local Gov't Code; and
WHEREAS, the attached "Service Pole Wireless Network Node Collocation
Attachment License Agreement" is in furtherance of the City's authority under both state
and federal law to manage the Public Right-of-Way to ensure the health, safety, and
welfare of the public; NOW THEREFORE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the findings set forth above are incorporated as if fully set
forth herein.
SECTION 2. That the City Council approves and adopts the attached Service
Pole Wireless Network Node Collocation Attachment License Agreement for use with
Attachments Collocated to and on the City's SERVICE Poles as allowed under Chapter
284, Tex. Local Gov't Code.
SECTION 3. That the compensation due to the City under the attached "Service
Pole Wireless Network Node Collocation Attachment License Agreement" will be
established by separate ordinance.
SECTION 4. That the City Manager, or designee, is authorized to execute and
deliver on behalf of the City, the attached "Service Pole Wireless Network Node
Collocation Attachment License Agreement" between the City of Denton and any and all
persons or entities desiring to Collate Attachments to and on the City's Service Pole as
allowed under Chapter 284, Tex. Local Gov't Code and in compliance with applicable
City laws, the City's Design Manual, and the Chapter 284 limits to the height, width,
safety and aesthetic requirements of Network Nodes.
SECTION 5. That this ordinance shall become effective September 1, 2017.
PASSED AND APPROVED this the � ��'�� ��
�_day of �:...� ���". , 2017.
�� ������ ��w
�. � ____.____�.
t�I- � '�v" TTS, MAYOR
2
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
�� � .�.
By. "� � ��.� �� _ ,��
APPROVED AS TO LEGAL FORM:
AARON LEAL, INTERIM CITY ATTORNEY
.
By:
° • ! •
CHAPTER 284 SERVICE POLE COLLOCATION ATTACHMENT LICENSE AGREEMENT
ARTICLE 1.
1.1�
ARTICLE 2.
ARTICLE 3.
3.1.
3.2.
3.3.
ARTICLE 4.
4.1.
4.2.
ARTICLE 5.
5.1.
5.2.
5.3.
5.4.
5.5.
5.6.
5.7.
5.8.
5.9.
5.10.
TABLE OF CONTENTS
Page No.
PARTIES........................... .».......,,..,... . ...,.,... ,M.�..... ..,..,........ ,.,...r .e,...,....». 7
ADDRESSES.......................... �. � �.........,............,....,....,.,, �.....,.........,......... �..�,..� �.., �.. 7
DEFINITIONS.........................................................................»..w........".........,.. 7
CHAPTER 284 GRANT AND SCOPE OF AUTHORIZATION TO COLLOCATE
NETWORK NODES ON SERVICE POLES..».,» ....................W....,,..�.....,........».,..,... 13
CITY GRANT OF PERMISSION IN ACCORDANCE WITH CHAPTER 284. ..�.,........., 13
SCOPE OF AGREEMENT ..............�...,......,,.....,............,,..,..,...,...«�........................ 13
UNAUTHORIZED NETWORK NODE ON SERVICE POLES ..................................... 13
APPLICATION FOR A PERMIT TO COLLOCATE ON A SERVICE POLE ................ 14
APPLICATION FOR A PERMIT TO COLLOCATION A NETWORK NODE ON A
SERVICEPOLE .................... ......... .....�... ,...»«.,� � ..,..... ,..,.�, ,.,..,.�.�,,.,.......... 14
REVIEW PROCESS FOR AN APPLICATION FOR COLLOCATION OF A
NETWORK NODE ON A SERVICE POLE PERMIT. (ch. 284, Sec. 284.154) ........... 16
CHAPTER 284 RENTAL FEES AND OTHER PAYMENTS .................................... 17
NETWORK NODE SITE ANNUAL RENTAL RATE. (Ch. 284, Sec. 284.053) ........... 17
COLLOCATION ATTACHMENT ON SERVICE POLE FEE. (Ch. 284, Sec.
284.056) ...........................� , ...,,., .,....... .........,. ...,,.. .........,,.,,.,.,.. �,.,....�,..�,. 17
MONTHLY TRANSPORT FACILITY FEE. (Ch. 284, Sec. 284.055)...,.,..��...�...�....,.�. 18
APPLICATION FEES. (Ch. 284, Sec. 284.156) ...................................................... 20
OTHERPAYMENTS .. ,...� ........................ ......... �...�,... ......... ......,. ,� .�...�........ 20
NON-FUNCTIONING NETWORK Nodes...........„,.„ ..................�.....,...,�,...,..........., 20
PAYMENT.,�...�,.���..,�,,.���.�.,... .,,� ... ......... ........� .,.�..,.��,......... .�....... .�........,<�.. 20
REIMBURSEMENT....................................................................„...���.„....,...,...�....., 20
PAYMENTLIMITS ..,. ,,...� ... ..................�.,.........� ....��,.,. ,. .,..., .......... ...........�.. 20
COMPLIANCE REVIEW ....................�.,..,......,....�,�.„..,........,....,,.,,,,,.�.,..�.,.„..,�....... 21
1
5.11. PERMITS CONDITIONED ON PAYMENTS BEING CURRENT ................................ 21
ARTICLE 6. DESIGN MANUAL, PUBLIC RIGHT—OF—WAY MANAGEMENT ORD.
COMPLIANCE AND RELATED REQUIREMENTS .............................................. 21
6.1. AESTHETIC REQUIREMENTS ................................................................................ 21
6.2. INSTALLATION .................. ......... �.,...,....,....... .,�.. ........,..,......................22
6.3. I NSPECTIONS .....................................�....,.,,,. � �.,,..........,.......,,,,..,..,..................... 22
6.4. PLACEMENT ..............................�...a..,............,,,............�............,��,..................... 22
6.5. ELECTRICAL SUPPLY ............ .....a..� .............. .........,,�,.. ,,..,.., ......... ...,.,,,,.,. 22
6.6. TRANSPORT FACIUTY FIBER CONNECTION ........................................................ 23
6.7. GENERATORS ............ ......... ......... ......�.. .,�....�........,,.. ........ ...,..., ,...��.....,. 23
� 6.8. EQUIPMENT DIMENSIONS .. ......... ....... .�....... ....,..,,.......,.., ......... ............. 23
6.9. TREE MAINTENANCE ........... ......... ......... ......... .................... ......... ............ �:�
6.10, SIGNAGE ........................................................�.,......,......,...,................................23
6.11. REPAIR ............ ....�....., ...Y.,. ............�., .,�.......... .,..,..� ........,�,....................... 23
6.12. GRAFFITI ABATEMENT ........ ........ .....�.. .......,. ........ .......,. ,....,�........,...,.... 23
ARTICLE 7. RADIO INTERFERENCE BY NETWORK NODE PROHIBITED. (CH. 284, SEC.
284a304),,.,..,» . ......... ....M....,.�.,. ... ....,.... .,�....,... ......,� ....,...,. ....... ....»...�... 24
7.1. NO LIABILITY ... ......... ......... ......... ......... ......... ......... ...�..... .....,...,.....,�....,.. 24
7.2.
ARTICLE 8.
8.1.
8.2.
8.3.
8.4.
8.5.
:
::
:•
E��]
NOINTERFERENCE ............. �..,.�... ,.,...........,,.. ...,....., ,,..........,.,�. .�,,...,...24
ABANDONMENT, RELOCATION AND REMOVAL ..........................�.,M.....�..�..,, 25
ABANDONMENT OF OBSOLETE NETWORK NODE ................�..............,,.,,,,....,., 25
REMOVAL REQUIRED BY CITY ............................................................................ Z5
REMOVAL OR RELOCATION BY LICENSEE ...., ...................................................... 26
REMOVAL OR RELOCATION REQUIRED FOR GTY PROJECT ..........................,,... 26
REMOVAL REQUIRED AFTER TERMINATION OR EXPIRATION OF LICENSE,..,.... 26
REMOVAL REQUIRED AFTER REVOCATION ........................................................ 27
OWNERSHIP................�.,.... .....,... ............... ... ......... ..�.,..�, �..�...�.,,.......,.....27
RESTORATION......... ........ ........ ......... ............... � . ...,..... .,..... .....,...,.., 27
LICENSEE RESPONSIBLE......� „ .... ......... ................... ........ ......... .�..,.�....., 27
ALLOCATION OF FUNDS FOR REMOVAL AND STORAGE ................................... 27
2
ARTICLE 9.
ARTICLE 10.
ARTICLE 11.
ARTICLE 12.
12.1.
12.2.
12.3.
12.4.
12.5.
ARTICLE 13.
13.1.
13.2.
ARTICLE 14.
14.1.
14.2.
14.3.
ARTICLE 15.
15.1.
15.2.
15.3.
15.4.
15.5.
15.6.
15.7.
15.8.
15.9.
15.10.
15.11.
15.12.
ENVIRONMENTAL LAW REQUIREMENTS ..............,,...,.,<...,....�.....*...».,....,..,,... 28
SECURITY................................... ......... ......... ........ . .....�... ...,,..,...... ...,.,... 28
INDEMNIFICATION, INSURANCE AND LIABILITY .....»µ .............�....».�........»....». 28
TERM AND TERMINATION ............................ ........ ....... »........ ,.,...,....,.. 28
TERM............................................ .......�. ���.�,,,,�� ....... .,....,.. ..,..,,,� .,�..�..��„.... 28
RENEWALS... ......... ......... ....�.�.�..�.,,..............., .......a.�..��,. .�....,.,.....,........,,..., 28
TERMINATION FOR CAUSE BY CITY ......... ....�.. ...�.4,�.......... �...�... ..,,,,..,,..,. 28
TERMINATION BY LICENSEE .......................�..���.,........,..........,.�...��.�.,,.....,..,,...... 29
AUTOMATIC TERMINATION .................... ......... ........ �...,.., ......... .�,.....��...�� 30
TRANSFER OF AUTHORITY .......................................�,.................................... 30
ASSIGNMENT.................. ......... ......... .................. .�...�...�,..,��.. ,..............30
BUSINESS STRUCTURE AND ASSIGNMENTS ......................................«...........,...« 30
INVENTORY AND INSPECTIONS . . ........ ........ ....»... ...u,... ,.,,.�.. ............ 31
INVENTORY RECORDS ..................„....,...........�.....,.,.,..�...,...............,...�..�...�......,. 31
INSPECTIONS....................................a..,......,.,��.,......,...,........,a.........,....�...�......... 31
CONFIDENTIAL INFORMATION ...............................�.,,....�..�.........,.,....,.,..,..,....,, 31
MISCELLANEOUS........................ ........ ........ ........ m...... ..w.....� .,..�......... 32
FORCEMAJEURE ............................�...,..................,..,,....,...,,.........,.....,...�...,,...,. 32
DISPUTE RESOLUTION .................. ......... ..„,.... ..,�„��. �.....,.. .,...,��. ,.,....�...�..� 32
ACCEPTANCE AND APPROVAL; CONSENT ......... ........ ......... �....... ,.............. 33
REPRESENTATIONS AND WARRANTIES ...................„..,...,..,............�,,....,�,,,,,.,��,. 33
STATEMENT OF ACCEPTANCE ...............................��„�...........,...,.�.,„..,,�..,............ 34
RELATIONSHIP OF THE PARTIES .......................................................................... 34
SEVERABILITY.......... ..�......�..� ....... ......... ........a .......,. ......,.. .�...�..� ..�,�,�,.�.�.,� 34
ENTIREAGREEMENT ......... ...........��...,,............ .,....... ..,�.�..�,, .�.... ............... 34
WRITTENAMENDMENT .......................................a,��..,�,,�..�..,,.....................,..,... 34
APPLICABLE LAWS AND VENUE ...,,.� .............�....................,.,,.,........v................. 34
NOTICES............................................................ ......... ..��..,�, ,........ ......�...�,�.. 35
CAPTIONS...............................................................................a...�.............,...,...,, 35
3
15.13. NON—WAIVER . ....... ......... .................... ............... ... ......... ........ ............. 35
15.14. ENFORCEMENT ...... ......... ,.,...... ......... ,................. ........, ,....................36
15.15. AMBIGUITIES ................................�„,.....,........,,,......a...............,..n.....,........,.........36
15.16. SURVIVAL ....... ......... .... ....�. ....,.............. ......... ..........., �...,, .....�.,, ...,.�..... 36
15.17. RESERVED ....... ..................... ........ . .............. ... ......... ........ ......... ........�.... 36
15.18. PARTIES IN INTEREST ..................... ....�.. ,,,....,, ...,.,. ......... .,,.�„ .�.,i..,..... 36
15.19. REMEDIES CUMULATIVE ..........................�........,....,....,............,..........,.............. 36
15.20. LICENSEE DEBT ................................................................................................... 36
15.21. PARTS INCORPORATED....... ..,,� .. ......... .................... .................. ............. 37
15.22. CONTROLLING PARTS .......... ........ ......... ....... .......�. .,.�„.... .,....... .,.,......,, 37
15.23. SIGNATURES ...........................�.................,. ................,.. ..,...... ......e. ....,,...,,., 37
4
list of Exhibits:
Exhibit [xxx] Application for Collocation on Service Pole Permit.
CITY OF DENTON
CHAPTER 284 SERVICE POLE COLLOCATION ATTACHMENT LICENSE AGREEMENT
STATE OF TEXAS §
DENTON COUNTY §
This Service Pole Collocation Attachment License Agreement ("Agreement") is made by
and between the City of Denton ("City"), a Texas home-rule municipal corporation, and
. .
m„mm ,("Network Provider" or "Licensee"), a m� [state and type o legal
entity] wi ����������
th 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 terms 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
Engineer; 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
1.1. ADDRESSES
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 Denton
Attn: Todd Hileman, City Manager
215 E. McKinney St.
Denton, Texas 76201
Email: todd.hileman@cityofdenton.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:l
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,
7
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
thar 120 consecutive calenuar �ays unless, after rotice to °rovider, Provide; 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 ireans (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
Wir.eless 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 fa�ade, 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.
2.1.15. DisasterEmergency 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.
2.1.16. Distributed Antenna System or DAS shall be included as a type of "Network
Node."
2.1.17. Effective Date means that date signed by the City Manager on the signature page
of this Agreement for each respective Licensee.
2.1.18. 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.
2.1.19. 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.
2.1.20. 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.
2.1.21. Law means common law or a federal, state, or local law, statute, code, rule,
regulation, order, or ordinance
0
2.1.22. Licensee and Network Provider means [Add name of entity, state and
type of entity] and includes its successors and assigns.
2.1.23. 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.
2.1.24. 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.
2.1.25. 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.
2.1.26. 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.
2.1.27. Municipal Park means an area that is zoned or otherwise designated by
municipal code as a public park for the purpose of recreational activity.
2.1.28. 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.
2.1.29. MUTCD means Manual of Uniform Traffic Control Devices.
2.1.30. 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.
2.1.31. 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.
10
2.1.32. Party or Parties mean the Licensee and City, individually or collectively as
indicated in the context in which it appears.
2.1.33, Other Party or Other Parties means a Chapter 284 Wireless Service provider who
is not a Party to this Agreement.
2.1.34. Node Support Pole means a pole installed by a network provider for the primary
purpose of supporting a network node.
2.1.35. 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.
2.1.36. Pole means a service pole, municipally owned utility pole, node support pole, or
utility pole
2.1.37. Provider has the same meaning as "Network Provider."
2.1.38. 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.
2.1.39. 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 City pursuant to
Chapter 284, Sec. 284.053.
2.1.40. Rental Fees means as described in Article 5 herein.
2.1.41. School means an educational institution that offers a course of instruction for
students in one or more grades from kindergarten through grade 12
2.1.42. 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.
2.1.43. Small Cell shall be included as a type of "Network Node."
2.1.44. 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
11
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" �+ces 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.
2.1.45. TAS means Texas Accessibility Standards.
2.1.46. TrafficSignal means any device, whether manually, electrically, or mechanically
operated by which traffic is alternately directed to stop and to proceed.
2.1.47. 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
2.1.48. 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.
2.1.49. 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.
2.1.50. 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.
2.1.51. Wireless Service Provider means a person that provides wireless service to the
public.
2.1.52. 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 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 permit 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, real
or personal.
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
13
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 wil! invoice and Licensee shal! reimbGrsP 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 Engineer
except for those modifications, repairs, routine maintenance or related work
that do not require a permit 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),
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.
�_� �mm�AT TQ COLLOCATIOwN A NFT��R� Nw�]DE ON AwwSER�ICE PQLF.
4.1. APPImICATI�N �i�R A F'�R ._..��..�
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
Engineer the Application for Collocation of a Network Node on a Service Pole
Location, attached as Exhibit [xxx] (Drafter's Note-City should prepare a form
application] as a representative sample, 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.
(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 Engineer 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 (Vetwork Nodes on a Service
14
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 the proposed Transport Facilities will be connected to the
Network Node as electrical power connections.
4.1.1.3. Required industrystandard pole load analysis: Installations on all Service
Poles shall have an industry standard pole load analysis completed and submitted
to the City 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 Traffic Signal structure.
4.1.1.6. 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 Street signage electronics;
15
ii. Have a separate electric power connection than the Street signage
structure;
iii. Have a separate access point than the Street signage structure;
iv. Will not alter, puncture or drill into the Street structure.
4.1.2. Network Provider shall comply with any additional requirements imposed by
Applicable Codes or Law, the Design Manual or directions of the City Manager concerning
collocating its Network Nodes on any Service Pole. Compliance is to be with the Law and
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 PROC�SS FOR AN APPLICATION FOR COLLOCATION OF A NETWORK NODE ON A
.�._ ....w_.. �_.....�
'��:RVICE F��LE I'ERMIT. fCH. 284. SEC. 284.154�
4.2.1. The City Engineer 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 City Engineer 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 Applicable Codes or Law
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 ifthe Licensee's application is not in compliance
with the Applicable Codes or Law, the Design Manual and this Agreement.
16
4.2.4. Licensee shall not install a Network Node without the requisite Permit(s),
4.2.5. The City Engineer 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 RE�TAI., RATE. �ki. 2$4 SEC. 284.053
5.1.1 Annual Network Node Rate. Licensee shall pay the City annually $250 per Network
Node site in accordance with Ch. 284., Sec. 284.053 (a) the 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.
5.1.2. Initial Annual Network Node Rate Pro Rated. The annual Network Node Public
Right-of-Way Rate payment for the first year at any Location ("Initial Annual Network
Node 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 atthe Location. The Initial
Annual Network Node Payment shall be pro-rated for the months remaining in the
calendar year after the Permit issuance date.
5.1.3. SubsequentYearsAnnual NetworkNode 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.
5.1.4 Annual Network Node Rate Adjustment. Pursuant to Ch. 284, Sec. 284.054 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 by an amount equal to one-half the annual
change, cumulative since Sept. 1, 2017, if any, in the Consumer Price Index for All Urban
Consumers for Texas, as published by the federal Bureau of Labor Statistics. 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 1 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 $20 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
17
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 Col/ocation 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
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. �l�m�ImT�mF�I�Y 1�G�r��I�PCiRT FACILITY FEE. �,Y�i, �� �m���;,�,��4.055
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. Month/y Transport Facility Fee payment. In accordance with Ch. 284., Sec. 284.055
(b), the Network Provider shall pay to the City an amount equal to $28 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 acctuing 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. 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 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 underthis 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
19
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. (C�i. 284, SEC. 284.156)
5.4.1 Application and Permit Fees. Licensee shall pay the City the Ch. 284, Sec. 284.156
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.
5.6. �d�P�-��JN��ITb��UING NETWORK.mmNt�f�C�
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 Denton and sent to the following address:
City of _� m,
ATTN:
P.O. Box
Denton, TX 76201
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 reimburse 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_R.EVIEW
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 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 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.
5.11. PERMITS CONDITIONED ON PAYMENTS BEING CURRENT.
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 COMPLIANCE AND RELATED REQUIREMENTS
6.1. AESTHETIC REQUIREMENTS
6.1.1. Network Provider shall comply with the requirements of the Law, City's Applicable
Codes, and Design Manual concerning Collocating its Network Nodes on any Service Pole,
as the Law, City's Applicable Codes, and Design Manual are published and amended from
time to time. Compliance is to be with the Law, City's Applicable Codes, 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 Law, City's Applicable Codes, 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
21
conduit, so that wires are protected and not visible or are visually minimized to the extent
possible.
6.2. I NSTALLATION
To the extent not in conflict with the Law, City's Applicable Codes, or Design Manual orChapter
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 Engineer may perform visual inspections of any Network Nodes
attached to Service Poles located in the Public Right-of-Way as the City Engineer
deems appropriate without notice. If the inspection requires physical contact
with the Network Node, the City Engineer shall provide written notice to the
Licensee within five business days of the planned inspection. Licensee may have
a representative present during such inspection.
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 Law, City's Applicable Codes,
and Design Manual concerning Collocating its Network Nodes on any Service Pole, as the
Law, City's Applicable Codes, and Design Manual are published and amended from time
to time. Compliance is to be with the Law, City's Applicable Codes, 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 Law, City's Applicable Codes, 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
22
City. Licensee shall not be entitled to any abatement of the Rental Fee for any such stoppage or
shortage of electrical power.
6.6. Tf��t��PC?��f FACILITY FIBER CONN��T���
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. E UIPMENT 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 Law, City's Applicable Codes, and Design Manual
concerning tree maintenance.
6.10 SIGNAGE
Network Provider shall comply with the Law, City's Applicable Codes, and Design Manual
concerning signage on the Network Node and any Ground Equipment.
6.11. REPAIR
To the extent not in conflict with the Law, City's Applicable Codes, and 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 ABATEM
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Network Provider shall comply with the Law, City's Applicable Codes, 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 shail 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.
7.2. NOINTERFERENCE
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.
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 c�ase
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 in#erference 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.
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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 Law, City's Applicable Codes, and
Design Manual concerning collocating its Network Nodes on any Service Pole, as the Law, City's
Applicable Codes, and Design Manual are that are published and amended from time to time.
Compliance is to be with the Law, City's Applicable Codes, 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 Law, City's Applicable Codes, and 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.
8.2. REMOVAL REQUIRED BY CITY
8.2.1. To the extent not in conflict with the Law, City's Applicable Codes, and 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
Engineer if the City Engineer 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 Engineer 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.
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8.2.2. The City Engineer 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 Engineer 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 OmR RELOCATION REQUmIITRED FOR CITY PROJECT
8.4.1, To the extent not in conflict with the Law, City's Applicable Codes, and 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 Engineer's direction remove or relocate the same at
Licensee's sole cost and expense, whenever the City Engineer 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 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 Engineer 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 REQUIRED AFTER TERMIh1ATION OR EX_PI_RATION OF„LICENS_E
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
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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 Engineer 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. RFMOVAL REmQUIRED 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 Engineer 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. OWNERSH_IP
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.
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.
8.9. LICENSEE RESPONSIBLE
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
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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 Law, City's Applicable Codes, and Design Manual
concerning environmental law requirements on any of its Network Node or Ground Equipment.
ARTICLE 10. SECURITY
Network Provider shall comply with the Law, City's Applicable Codes, and Design Manual
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 Law, City's Applicable Codes, and
Design Manual and Chapter 284, Sec. 284.302 concerning on indemnification requirements on
any of i#s Network Node or Ground Equipment.
11.2 Insurance. Network Provider shall comply with the Law, City's Applicable Codes, and
Design Manual 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
12.1. TERM
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").
12.2. RENEWALS
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, permits, 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 the
Public Right-of-Way in accordance with the Sections 8.5 and 8.6 ofthis 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.
12.4. TERMINATION BY LICENSEE
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.
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12.5. �1�I�����,T`��, TERMINATIC;)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
which the Licensee or an Affiliate of the Licensee shares joint ownership of the
Network Nodes and Ground Equipment; or (c) 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 ASSwIGNMENTS
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
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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 Engineer, 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
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.
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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 Majcure 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_R,ESOLUTION
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.
15.2.4. Except in emergencies, no lawsuit under or refated to this Agreement by one party
against the other may be filed until at least meeting has occurred b:etween the
32
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 Engineer, 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 Engineer are not
authorized to vary the terms of this Agreement.
15.4. 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 terms 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.
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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.
ATIONSHIP OF THE PARTIES
15.6. RE.L.....��__-__...��_�.......�.
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' perfiormance 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 AGREEME
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 AMENDMEN7
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
pPrf�rm the functions specifically delegated to him or her in this A�reement.
15.10. APPLICABLE LAWS AND VE_NUE
15.10.1.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
34
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
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 Denton
County, Texas.
15.11. NOTICES,
15.11.1.A11 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 Engineer at the address set out in Article
I, Section 1.1 of all notices pertaining to Article 6 and 8 and other notices to the
City Engineer 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
15.12. 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.
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15.14. ENFORCEMENT
The City Attorney may enforce all legai 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.
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
PARTIES IN INTEREST
15.18. �� ............._._.._.�.
This Agreement does not bestow any rights upon any third party, but binds and benefits the City
and Licensee on►y.
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. '
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15.21. PARTS INCORPORA
All ofthe 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.
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 City Manager.
LICENSEE/NETWORK PROVIDER: CITY:
Name:
CITY OF DENTON, a Texas home-rule municipal
corporation
Signed by�
Todd Hileman, City Manager
Date Signed.
Title:
Tax Identification No.: ATTEST:
ATTEST/SEAL:
Name:
Date Signed.
City Secretary
APPROVED AS TO FORM:
City Attorney
Date Signed,
37
1 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
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 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 284.103 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) 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 po/e" 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) "Wire/ess 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.
39