The purpose of this article is to:
(a)
Assist
the city in the competitively neutral and nondiscriminatory management
of the physical use, occupancy and maintenance of its public rights-of-way
by wireless network providers;
(b)
Secure
fair and reasonable compensation for the physical use and occupancy
of the public rights-of-way by wireless network providers in a nondiscriminatory
and competitively neutral manner; and
(c)
Assist
the city in protecting the public health, safety, and welfare.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
This chapter shall be construed in accordance with Chapter 284
of the Texas Local Government Code (“the Code”) to the
extent not in conflict with the Constitution and laws of the United
States or of the State of Texas.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
For the purpose of this article, the definitions found in the
city Design and Construction Standards Manual, Chapter 15–Installation
of Network Nodes and Node Support Poles (said Chapter 15 being hereinafter
referred to as “Design and Construction Standards”) are
hereby incorporated into this article and shall apply unless the context
clearly indicates or requires a different meaning. The following definitions
as found in the Design and Construction Standards are specifically
applicable to this article:
The City of Brenham, Texas or its lawful successor.
The municipal governing body of the City of Brenham, Texas.
Texas Local Government Code, Chapter 284.
The Texas Local Government Code.
The installation, mounting, maintenance, modification, operation,
or replacement of network nodes in a public right-of-way on or adjacent
to a pole.
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 city codes and ordinances.
An area that is zoned, or otherwise designated by municipal
code or ordinance, and for which the city maintains and enforces unique
design and aesthetic standards on a uniform and nondiscriminatory
basis.
And shall include any public easement or other compatible
use created by dedication, or by other., to the city for public utility
purposes or any other purpose whatsoever. “Easement” shall
include a private easement used for the provision of utilities.
The federal administrative agency, or lawful successor, authorized
to oversee cable television and other multi-channel regulation on
a national level.
Right-of-way adjacent to a state or federal highway.
An area that is zoned or otherwise designated as a historic
district under municipal, state, or federal law.
Common law or a federal, state, or local law, statute, code,
rule, regulation, order, or ordinance.
Within the geographical boundaries of the city.
The city-approved and lawfully permitted location for the
network node, node support pole, or transport facility.
The mayor of the City of Brenham, Texas, or designee.
A network node that is not larger in dimension than twenty-four
(24) inches in length, fifteen (15) inches in width, and twelve (12)
inches in height, and that has an exterior antenna, if any, not longer
than eleven (11) inches.
An area that is zoned or otherwise designated by the city
as a public park for the purpose of recreational activity.
Equipment at a fixed location that enables wireless communications
between user equipment and a communications network. The term:
Includes:
Equipment associated with wireless communications;
A radio transceiver, an antenna, a battery-only backup power
supply, and comparable equipment, regardless of technological configuration;
and
Coaxial or fiber-optic cable that is immediately adjacent to
and directly associated with a particular collocation; and
A pole installed by a network provider for the primary purpose
of supporting a network node.
A written authorization for the use of the public right-of-way
or collocation on a service pole required from the city before a network
provider may perform an action or initiate, continue, or complete
a project over which the municipality has police power authority.
A service pole, city-owned utility pole, node support pole,
or utility pole.
An easement or other real property right that is only for
the benefit of the grantor and grantee and their successors and assigns.
Has the same meaning as “network provider.”
The area on, below, or above a public roadway, highway, street,
public sidewalk, alley, waterway, or utility easement in which the
city has an interest. The term does not include:
A pole, other than a city-owned utility pole, owned or operated
by the city and located in a public right-of-way, including:
Only the paved portion of the right-of-way used for vehicular
travel, being the area between the inside of the curb to the inside
of the opposite curb, or the area between the two (2) parallel edges
of the paved roadway for vehicular travel where there is no curb.
A “street” is generally part of, but smaller in width
than the width of the entire right-of-way, while a right-of-way may
include sidewalks and utility easements. A “street” does
not include the curb or the sidewalk, if either are present at the
time of a permit application or if added later.
Any device, whether manually, electrically, or mechanically
operated by which traffic is alternately directed to stop and to proceed.
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.
A person or organization which conducts a business over facilities
occupying the whole or a part of a public street or right-of-way,
depending on the context.
A pole that provides:
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.
A person that provides wireless service to the public.
“Micro network nodes,” “network nodes,”
and “node support poles” as defined in Texas Local Government
Code, Chapter 284.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
Pursuant to this article and subject to the Design and Construction
Standards and the Code, a network provider has the nonexclusive right
to use and occupy the public rights-of-way in the city for the purpose
of constructing, maintaining, and operating its facilities used in
the provision of wireless facilities.
The terms of this article shall apply to all network providers’
facilities used, in whole or part, in the provision of wireless services
throughout the city, including any annexed areas upon the effective
date of annexation.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
All wireless network providers shall comply with the terms of
this article, applicable city codes, and the terms and conditions
of the city’s Design and Construction Standards.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
A network provider shall construct and maintain network nodes
and network support poles described in the code in a manner that does
not:
(a)
Obstruct,
impede, or hinder the usual travel or public safety on a public right-of-way;
(b)
Obstruct
the legal use of a public right-of-way by other utility providers;
(c)
Violate
nondiscriminatory applicable codes;
(d)
Violate
or conflict with the city’s publicly disclosed public right-of-way
design specifications; or
(e)
Violate
the federal Americans with Disabilities Act of 1990, 42 U.S.C. Section
12101 et seq. (“ADA”).
(Ordinance O-17-010, sec. II, adopted 8/17/17)
(a)
Except
as otherwise provided in Chapter 284 of the Code, a network provider
shall obtain a permit or permits from the city to install a network
node, node support pole, transport facility or other improvements
in a city public right-of-way.
(b)
The
city may not directly or indirectly require, as a condition for issuing
a permit required under this article, that a network provider perform
services unrelated to the installation or collocation for which the
permit is sought, including in-kind contributions such as reserving
fiber, conduit, or pole space for the city.
(c)
A network
provider that wants to install or collocate multiple network nodes
inside the municipal limits of the city is entitled to file a consolidated
permit application with the city for not more than thirty (30) network
nodes and upon payment of the applicable fee(s) and compliance with
all permit application requirements, receive a permit or permits for
the installation or collocation of those network nodes.
(d)
The
network provider shall provide the following information in its permit
applications:
(1)
Applicable construction and engineering drawings and information
to confirm that the applicant will comply with the city’s Design
and Construction Standards and applicable codes;
(2)
Any additional information reasonably related to the network provider’s
use of the public rights-of-way to ensure compliance with the Design
and Construction Standards and this article;
(3)
A certificate that the network node(s) complies with applicable regulations
of the Federal Communications Commission; and certification that the
proposed network node(s) will be placed into active commercial service
by or for the network provider not later than the 60th day after the
date of construction and final testing of each network node is completed.
(4)
A certificate of insurance that documents that the network provider
and its contractor have at least one million dollars ($1,000,000.00)
in general liability coverage.
(e)
Exception:
As provided in Section 284.157 of the Code, a network provider is
not required to apply, obtain a permit, or pay a rate to the city
for:
(1)
Routine maintenance that does not require excavation or closing of
sidewalks or vehicular lanes in a public right-of-way;
(2)
Replacing or upgrading a network node or network pole with a node
or pole that is substantially similar in size or smaller and that
does not require excavation or closing of sidewalks or vehicular lanes
in a public right-of-way; or
(3)
The installation, placement, maintenance, operation, or replacement
of micro network nodes that are strung on cables between existing
poles or node support poles in compliance with the National Electrical
Safety Code.
(f)
Notwithstanding subsection (e) above: 1) the network provider or its contractors shall notify the City at least twenty-four (24) hours in advance of work described in this subsection (e); 2) the network provider or its contractors may replace or upgrade a pole only with the approval of the pole’s owner; and 3) the size limitations may not in any event exceed the parameters prescribed by Section 284.003 without the city’s approval in accordance with Section 284.109, with the city acting on behalf of this state as the fiduciary trustee of public property.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
A network provider must obtain advance written consent from
the city council before collocating new network nodes or installing
new node support poles in an area of the city that has been zoned
or otherwise designated as a historic district or as a design district
if the district has decorative poles. The network provider shall be
required to comply with the general aesthetic requirements and all
other applicable requirements described in the city’s Design
and Construction Standards. The city has the authority to designate
new historic districts and design districts, and the authority to
alter or modify existing historic districts and design districts,
at a future date.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
A network provider may not install a new node support pole in
a public right-of-way without the city council’s discretionary,
nondiscriminatory and written consent if the public right-of-way:
(1)
Is
in a municipal park; or
(3)
In
addition to the above, a network provider installing a network node
or node support pole in a public right-of-way shall comply with private
deed restrictions and other private restrictions in the area that
apply to those facilities.
(4)
The
network provider shall be further required to comply with the applicable
requirements set out in the city’s Design and Construction Standards.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
(a)
Determination
of application completeness.
The city shall determine
whether the permit application is complete and notify the applicant
of that determination:
(b)
Approval
or denial of application.
The city shall approve or deny
a completed application after the date it is submitted to the city:
(1)
For network nodes: No later than sixty (60) days after the date the
City receives the complete application.
(2)
For network support poles: No later than one hundred fifty (150)
days after the date the city receives the complete application.
(3)
For transport facilities: no later than twenty-one (21) days after
the city receives the complete application.
(c)
Basis
for denial of application.
If an application is denied
by the city, it shall document the basis for the denial, including
the specific applicable city code provisions or other city rules,
regulations, or other law on which the denial is based. The documentation
for the denial must be sent by electronic mail to the applicant on
or before the date that the city denies the application.
(d)
Resubmission
of denied application.
The applicant may cure the deficiencies
identified in the denial application.
(1)
The applicant has thirty (30) days from the date the city denies
the completed application to cure the deficiencies identified in the
denial documentation without paying an additional application fee,
other than any fee for actual costs incurred by the city.
(2)
The city shall approve or deny the revised completed application
after a denial not later than the 90th day after the city receives
the revised completed application. The city’s review shall be
limited to the deficiencies cited in the denial documentation.
(e)
Nondiscriminatory
review.
Each completed application shall be processed
by the city on a nondiscriminatory basis.
(f)
Deemed
approval.
An application for a permit for a node support
pole, network node, or transport facility shall be deemed approved
if the application is not approved or denied on or before the applicable
date for approval or denial prescribed by this section.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
A network provider shall begin installation for which a permit
is granted not later than six (6) months after final approval of the
application and shall diligently pursue installation to completion.
The city manager may in his/her sole discretion grant reasonable extensions
of time as requested by the network provider.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
(a)
As
compensation for the network provider’s use and occupancy of
the city public rights-of-way, the network provider shall pay application
fees and annual public right-of-way rental rates as set forth below,
which shall be in lieu of any lawful tax, license, charge, right-of-way
permit, use, construction, street cut or inspection fee; or other
right-of-way related charge or fee, whether charged to the network
provider or its contractor(s) within the city, except the usual general
ad valorem taxes, special assessments and sales tax levied in accordance
with state law and equally applicable to all general businesses in
the city.
(b)
Network
nodes.
(1)
Application fee.
The application fee shall be five hundred
dollars ($500.00) covering up to five (5) network nodes, two fifty
hundred dollars ($250.00) for each additional network node per application.
(2)
Annual public right-of-way rate fee.
The annual public
right-of-way rate shall be two fifty hundred dollars ($250.00) per
network node installed in the city public rights-of-way.
(3)
Public right-of-way rate adjustment.
As provided in
section 284.054 of the Code, the city may adjust the amount of the
annual public right-of-way rate not more than annually by an amount
equal to one-half the annual change, if any, in the Consumer Price
Index (CPI). The city shall provide written notice to each network
provider of the new rate; and the rate shall apply to the first payment
due to the city on or after the 60th day following the written notice.
(c)
Node
support poles.
(1)
The application fee for each network support pole shall be one thousand
dollars ($1000.00).
(d)
Transfer
facilities.
(1)
The application fee for each transfer facility shall be five hundred
dollars ($500.00).
(2)
The annual transfer facility rental rate shall be twenty-eight dollars
($28.00) monthly for each network node site located in a public right-of-way.
However, no rate is required if the network provider is already paying
the city an amount equal to or greater than the amount of other city
right-of-way fees for access lines under Chapter 283 of the Code or
cable franchise fees under Chapter 66 of the Texas Utilities Code.
(e)
Micro
network nodes.
(1)
No application fee is required for a Micro Network Node if the installation
is attached on lines between poles or node support poles.
(f)
Collocation
of network nodes on service poles.
(1)
Subject to the city’s pole service agreement, the collocation
of network nodes on city service poles shall be at a rate of twenty
dollars ($20.00) per year per service pole.
(g)
City-owned
municipal utility poles.
(1)
A network provider shall pay an annual pole attachment rate for the
collocation of a network node supported by or installed on a city-owned
utility pole based upon the pole attachment rate consistent with Section
54.024 of the Texas Utilities Code, applied on a per-foot basis.
(h)
The
city shall not seek or accept in-kind services in lieu of or as additional
payment or consideration from any user of the public rights-of-way
for use of the public rights-of-way.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
As provided in Section 284.302 of the Code, a network provider
accessing a public right-of-way under Chapter 284 of the Code shall
indemnify and hold the city and its officers and employees harmless
against any and all claims, lawsuits, judgments, costs, liens, losses,
expenses, fees (including reasonable attorney’s fees and costs
of defense), proceedings, actions, demands, causes of action, liability,
and suits of any kind and nature, including personal or bodily injury
(including death), property damage, or other harm for which recovery
of damages is sought that is found by a court of competent jurisdiction
to be caused solely by the negligent act, error, or omission of the
network provider, any agent, officer, director, representative, employee,
affiliate, or subcontractor of the network provider, or its respective
officers, agents, employees, directors, or representatives, while
installing, repairing, or maintaining facilities in a public right-of-way.
The indemnity provided by this section does not apply to any liability
resulting from the negligence of the city, its officers, employees,
contractors, or subcontractors. If a network provider and the city
are found jointly liable by a court of competent jurisdiction, liability
shall be apportioned comparatively in accordance with the laws of
this state without, however, waiving any governmental immunity available
to the city under state law and without waiving any defenses of the
parties under state law. This section is solely for the benefit of
the city and network provider and does not create or grant any rights,
contractual or otherwise, to any other person or entity. A network
provider or city shall promptly advise the other in writing of any
known claim or demand against the network provider or the city related
to or arising out of the network provider’s activities in a
public right-of-way.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
Except as provided in existing state and federal law, a network
provider shall relocate or adjust network nodes in a public right-of-way
in a timely manner and without cost to the municipality managing the
public right-of-way.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
A network provider shall operate all network nodes in accordance
with all applicable laws, including regulations adopted by the Federal
Communications Commission. A network provider shall ensure that the
operation of a network node does not cause any harmful radio frequency
interference to a Federal Communications Commission-authorized mobile
telecommunications operation of the city operating at the time the
network node was initially installed or constructed. On written notice,
a network provider shall take all steps reasonably necessary to remedy
any harmful interference.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
Nothing in this article shall govern attachment of network nodes
on poles and other structures owned or operated by investor-owned
electric utilities, electric cooperatives, telephone cooperatives,
or telecommunication providers.
(Ordinance O-17-010, sec. II, adopted 8/17/17)
