Certified Telecommunications Provider (CTP) must provide evidence
that the CTP has acquired authorization from the PUCT pursuant to
state law, prior to obtaining a permit to use public right-of-way.
The CTP’s right to use and occupy the public right-of-way shall
not be exclusive, and the City shall have the right to exercise its
police powers and manage its public right-of-way, based on the Act
and all other state or federal laws.
(Ordinance 1446-0-07-14, passed 7-14-20)
Transfer and notice. A CTP shall notify the City Engineer of
any sale, transfer, merger or assignment of the ownership or control
of a CTP’s business within 30 days of such sale, transfer, merger
or assignment. A CTP shall also maintain and provide current point-of-contact
information with the City Engineer at all times during which the CTP
uses the right-of-way.
(Ordinance 1446-0-07-14, passed 7-14-20)
The purpose of this Division is to set forth the standards for
the City’s regulation of the installation of network nodes and
network support poles pursuant to Chapter 284 of the Texas Local Government
Code (“Chapter 284”) in a way that is fair, reasonable
and nondiscriminatory in accordance with Chapter 284 while managing
the public right-of-way and balancing the interests of network providers
with the health, safety, and welfare of the public and while acting
on behalf of the state of Texas as the fiduciary trustee of public
property under Chapter 284. This Division shall be construed in accordance
with Chapter 284, to the extent not in conflict with the Constitution
and laws of the United States or of the State of Texas. Unless otherwise
articulated by this Division, the City and network providers shall
look to the other Divisions of this Chapter to determine applicable
requirements. Other purposes include:
(1)
Establish
a competitively neutral and nondiscriminatory management system regarding
the physical use, occupancy and maintenance of the City’s public
rights-of-way by wireless network providers
(2)
Secure
compensation authorized by Chapter 284 for the physical use and occupancy
of the public rights-of-way by wireless network providers; and
(3)
Assist
the City in protecting the public health, safety, and welfare
(Ordinance 1446-0-07-14, passed 7-14-20)
For the purpose of this division, the definitions found in the
City of Pflugerville Engineering Design Manual, Subsection 11 Wireless
Services Design for Network Nodes, Node Support Poles and Transfer
Facilities (“the Design Manual”) are hereby incorporated
into this Division and shall apply unless the context clearly indicates
or requires a different meaning. The definitions contained above in
this chapter, and as amended, (the “General Definitions”)
shall be applicable to this Division to the extent that there is no
conflict between the General Definitions and the definitions contained
herein or the Design Manual. In the event of a conflict between the
definitions in this Division, the Design Manual and the General Definitions,
the definitions contained in this Division and the Design Manual shall
control. The following definitions are specifically applicable to
this Division:
Texas Local Government Code, Chapter 284, as amended.
A utility pole owned or operated by a City-owned utility,
as defined by Section 11.003, Texas Utilities Code, and located in
a public right-of-way.
The installation, mounting, maintenance, modification, operation,
or replacement of network nodes in a public right-of-way on or adjacent
to a pole.
Any wireless facility or pole that is covered, disguised,
or otherwise concealed such that the wireless facility blends into
the surrounding environment and is visually unobtrusive.
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 ordinances and Applicable
Codes.
An area that is zoned, or otherwise designated by City’s
ordinances and Applicable Codes, 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 means, 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 Aviation Administration, or other lawful successor,
authorized to oversee aviation travel on an international level.
The Federal Administrative Agency, or lawful successor, authorized
to oversee cable television and other multi-channel regulation on
a national level.
Public 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 (municipal or
county), 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.
A guyed or self-supported pole or monopole greater than the
height parameters prescribed by Section 284.103 of Chapter 284 and
that supports or is capable of supporting antennas.
The mayor of the City of Pflugerville, Texas, or designee.
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.
An area that is zoned or otherwise designated by the City
or City ordinance 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:
The right-of-way Ordinance codified in the City of Pflugerville Code of Ordinances as Chapter 96, “Right-of-way Management”, as may be amended from time to time in the future, including amendments adopting addition sections.
A pole, other than a City-owned Utility Pole, owned or operated
by the City and located in a public right-of-way, including:
A method that hides or conceals an antenna, supporting electrical
or mechanical equipment or any other support structure, including
network nodes.
Only the paved portion of the Public Right-of-Way used for
vehicular travel, being the area between the inside of the curb to
the inside of the opposite curb, or the area between the two parallel
edges of the paved roadway for vehicular travel where there is no
curb. A “Street” is generally part of, but smaller in
width than the width of the entire Public Right-of-Way, while a Public
Right-of-Way may include sidewalks and utility easements. A “Street”
does not include the curb, on street parking, or the sidewalk, if
any are present at the time of a permit application or if added later.
Any City-owned or operated 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.
Any area in the City, as designated by this chapter, where
all utilities are underground.
A person or organization which conducts a business over facilities
occupying the whole or a part of a public street or Public 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 1446-0-07-14, passed 7-14-20)
(A)
Applicability.
The terms of this Division shall apply to all network providers
and network providers’ facilities used, in whole or part, in
the provision of wireless services throughout the City, within the
public right-of-way, including without limitation the highway or street
right-of-way as defined herein. The terms of the City’s Right-of-Way
Management Ordinance (defined herein) apply to network providers to
the extent that the terms of that ordinance do not conflict with the
terms of this Division, the Design Manual, or with Chapter 284. In
the event of a conflict, the terms of Chapter 284, this Division,
and the Design Manual shall control, in that order.
(B)
Use
and occupancy of public right-of-way.
Pursuant to this
Division and subject to Chapter 284, the Design Manual, applicable
City ordinances, and Applicable Codes, a network provider has the
nonexclusive right to use and occupy the public rights-of-way in the
City only for the purpose of:
(1)
Conducting
activities related to transport facilities for network nodes in the
public right-of-way;
(2)
The
activities of a network provider collocating network nodes in the
public right-of-way; or
(3)
Installing,
constructing, operating, modifying, replacing, and maintaining node
support poles and facilities in a public right-of-way.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Adoption
of Design Manual.
A separate Ordinance shall be referenced
for adopting the City’s Design Manual which may be amended by
the City Council.
(B)
Compliance
with Design Manual and Applicable Codes.
All wireless
network providers shall comply with the terms of all applicable Law,
including without limitation, this Public Right-of-Way management
ordinance, other applicable City ordinances, Applicable Codes, and
the terms and conditions of the Design Manual.
(C)
Require
pole attachment agreement and City Manager authority.
A network provider shall execute a Pole Attachment Agreement with
the City to access and use City service poles, which includes traffic
lights, non-decorative street lights, and traffic signage, to dictate
the terms of use. The City Manager is hereby authorized, on behalf
of the City, to execute a Pole Attachment Agreement with a network
provider dictating the terms of use of City service poles.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Standards.
A network provider shall construct and maintain network nodes
and network support poles described in Chapter 284 in a manner that
does not:
(1)
Obstruct,
impede, or hinder the usual travel or public safety on a public right-of-way;
(2)
Obstruct
the legal use of a public right-of-way by other utility providers;
(3)
Impose
a safety hazard to the public;
(4)
Violate
nondiscriminatory Applicable codes;
(5)
Violate
or conflict with the City’s Design Manual; or
(6)
Violate
the federal Americans with Disabilities Act of 1990 (ADA).
(B)
Size
of Network Nodes and Equipment Cabinets.
All network
providers shall comply with the size limitations of network nodes
and equipment cabinets as set forth in the Design Manual and Chapter
284.
(C)
Underground
Construction.
As required by this Chapter, and when required
by Applicable Codes, general ordinances, regulations or rules of the
City or applicable state or federal law, right-of-way users, network
provider’s, or public infrastructure contractor’s new
facilities shall be placed underground at right-of-way user’s,
network provider’s, or public infrastructure contractor’s
expense. Underground facilities are required for network providers
in Underground Districts as provided in this Chapter. Related equipment,
such as pedestals, must be placed in accordance with the City’s
applicable code requirements and rules, including all visibility triangle
requirements. In areas not designated as an Underground District,
where existing facilities are aerial, network provider or public infrastructure
contractor may install aerial facilities. Following the original adoption
of this Chapter, if a location is subsequently designated by the City
to be an underground requirement area, then a right-of-way user’s
or network provider’s permit for the location of the facilities,
at such location will be revoked 90 days after the designation, with
removal of said facilities at such location within 90 days of such
designation, or as otherwise reasonably allowed by the City for the
transition of other overhead facilities. Placement of street-related
poles and facilities above ground in the right-of-way, including but
not limited to stop signs and street lights, does not preclude an
area from designation as an area requiring undergrounding and placement
of facilities on street-related poles in an area requiring undergrounding
is prohibited.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Permit
applications.
Except as otherwise provided in Chapter
284, a network provider shall obtain one or more permits from the
City to install a network node, node support pole, or transport facility
in a City public right-of-way. A network provider requesting to install
or collocate multiple network nodes inside the city limits of the
City may file a consolidated permit application with the City for
not more than thirty (30) network nodes, and upon payment of the applicable
fee(s), receive a permit or permits for the installation or collocation
of those network nodes.
(1)
Utility company as the Applicant.
(a)
Application.
Any utility company shall obtain a Right-of-Way
Permit prior to performing any new construction or replacement, upgrading,
excavation, installation, expansion, reconstruction, relocation, alteration,
removal, maintenance, repair, traffic interference or replacement
of facilities in, on, under or over the public rights-of-way. The
application must be completed and signed by an authorized representative
or agent of the owner of the facilities.
(b)
Application Fees.
A Right-of-Way permit application fee is required per the city’s Unified Development Code (UDC) Appendix A, as amended. If there are additional direct costs to the City in processing the applications, the city may recover those costs from the applicant prior to the issuance of the construction permit, if otherwise authorized by applicable law or agreement. However, a Right-of-Way permit application fee is not required for City-initiated projects or certificated telecommunications provider under Texas Local Government Code Chapter 283, and holders of a state-issued certificate of franchising authority to provide cable or video services under Texas Utilities Code Chapter 66.
(c)
Compensation for Use of Right-of-Way.
For use and occupancy
of the public rights-of-way, all utility companies using or occupying
the public rights-of-way shall compensate the city on the value of
the rights-of-way used, in accordance with and to the fullest extent
authorized by applicable law or agreement.
(B)
Information
required.
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 Design Manual and Applicable Codes;
(2)
Any
additional information reasonably related to the network provider’s
use of the public rights-of-way to ensure compliance with the Design
Manual, this Division and Chapter 284;
(3)
A
certificate that the Network Node(s) complies with applicable regulations
of the Federal Communications Commission;
(4)
Certification
that the proposed network node(s) will be placed into active commercial
service by or for the network provider not later than the sixtieth
(60th)day after the date of construction and final testing of each
network node is completed; and
(5)
A
certificate of insurance that provides that the Network Provider and
its contractor has at least $1,000,000.00 in general liability coverage,
in addition to other insurance policy(ies) deemed necessary by the
City Engineer as provided by and in accordance with this Chapter.
(6)
Written
approval from the owner of the utility pole, if not the City, that
the network provider is authorized to install facilities at the utility
pole.
(7)
Written
certification that there are no other poles, with small cell attachments
permitted/under application review, within 300 feet of the subject
pole(s).
(8)
Other
information as required by the Design Manual.
(C)
Exemption
from permit:
As provided in § 284.157, 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
(a)
Substantially similar (as set forth in subsection (F), “substantially
similar node or pole” below), in size or smaller; and
(b)
That does not require excavation or closing of sidewalks or vehicular
lanes in a public right-of-way;
(c)
The replacement or upgrade does not include replacement of an existing
node support pole; and
(d)
The replacement or upgrade does not defeat existing concealment elements
of a node support pole; or
(e)
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.
(D)
Notwithstanding
exemption.
Notwithstanding subsection (C) of this Section:
(1)
The
network provider or its contractors shall notify the City at least
twenty-four (24) hours in advance of work described in Subsection
(C);
(2)
The
network provider 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 § 284.003 without the City’s approval in accordance
with § 284.109, with the City acting on behalf of the state as
fiduciary trustee of public property.
(E)
Substantially
similar node or pole.
A network node or pole is considered
to be “substantially similar” if:
(1)
The
new or upgraded network node, including the antenna or other equipment
element, will not be more than ten (10) percent larger than the existing
node, provided that the increase may not result in the node exceeding
the size limitations provided by § 284.003;
(2)
The
new or upgraded pole will not be more than ten (10) percent higher
than the existing pole, provided that the increase may not result
in the pole exceeding the applicable height limitations prescribed
by § 284.103; and
(3)
The
determination of whether a replacement or upgrade is substantially
similar is made by measuring from the dimensions of the network node
or node support pole as approved by the municipality.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Installation
in Underground Districts.
(1)
Installation.
A network provider shall obtain advance written consent via an issued right-of-way permit from the City before installing or collocating new network nodes or installing new node support poles in an area of the City that has been zoned or otherwise designated as an Underground District by this chapter. The network provider shall be required to comply with the requirements described in the Unified Development Code and Design Manual and as set forth in this chapter, including Section 96.42. The City has the authority and discretion to designate new underground districts at any time.
(B)
Installation
in Historic or Design Districts.
(1)
Installation.
A network provider shall obtain advance
written consent via an issued right-of-way permit from the City Engineer
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 design district if the district has decorative poles. The network
provider shall be required to comply with the General Aesthetic Requirements
described in either the Design Manual or Unified Development Code
and as set forth in this Section. The City has the authority and discretion
to designate new historic districts and design districts any time,
including subsequent to the adoption of this Division. Districts are
listed in and determined by the UDC and include, at the time of adoption
of this chapter, the following:
(a)
Downtown District (Also known as Central Business District) - Design
District.
(b)
Falcon Pointe ALUR (PUD) 2.
(c)
Cornerstone at Kelly Lane.
(d)
Stone Hill Town Center.
(e)
Highland Park ALUR.
(f)
The Commons at Heatherwilde and Pecan ALUR.
(g)
Pflugerville Town Square ALUR.
(h)
Pecan District.
(i)
North Pointe.
(2)
Concealment.
Concealment of network nodes and node support
poles shall be required by the City in Design Districts pursuant to
§ 284.105, this Chapter and the Design Manual. Network providers
shall submit a proposal for installation of a network node or node
support pole with its permit application. In a Design District, network
nodes installed on decorative poles shall be installed in such a way
as to cause no change to the outward appearance of the decorative
pole. Network nodes installed on all other poles in a Design District
shall be concealed in accordance with this Chapter and the Design
Manual. Node support poles installed in a Design District shall first
be approved by the City to ensure consistency with the look of other
decorative poles in the Design District.
(3)
Enclosure.
The network node facilities shall be concealed
or enclosed in a stealth manner in an equipment box, cabinet, or other
unit that may include ventilation openings. External cables and wires
hanging off a pole shall be sheathed or enclosed in a conduit, so
that wires are protected and not visible or visually minimized to
the extent possible in strict accordance with this Division, and other
applicable ordinances, except to the extent not consistent with Chapter
284.
(4)
Color.
Colors in the Design Districts must be approved
by the Planning Director and City Engineer and must match the color
of existing decorative poles in the district. Unless otherwise provided,
all colors shall be shall match the background of any structure the
facilities are located upon and all efforts shall be made by network
provider for the colors to be inconspicuous. Colors in areas other
than in Design Districts shall conform to colors of other installations
of telecommunication providers in the immediately adjacent areas that
are not in violation of this section, Unified Development Code or
the Design Manual.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Installation
in municipal parks and residential areas.
A network provider
shall not install a new Node Support Pole in a public right-of-way
without the City Engineer’s and Park and Recreation Director’s
discretionary written consent, which consent shall be nondiscriminatory,
if the public right-of way:
(1)
Is
in a municipal park; or
(3)
In
addition to compliance with the requirements of the preceding section,
it is the responsibility of a network provider installing a network
node or node support pole in a public right-of-way identified in this
section to comply with private deed restriction and other private
restriction in the area that apply to those facilities.
(4)
Securing
City’s discretionary consent as provided herein, shall be a
condition precedent to the issuance of any related right-of-way permit
and any such consent may impose conditions to such placement, including
without limitation, compliance with any guidelines established in
the City’s Design Manual.
(B)
Safety.
In order to minimize negative visual impact to the surrounding
area, and in accordance with Chapter 284, § 284.102 (1) to enhance
the safety requirements of line of sight of pedestrians, particularly
small children, the City Engineer may deny a request for a proposed
location if the network provider installs network node ground equipment
where existing ground equipment within three hundred (300) feet already
occupies a footprint of twenty-five (25) square feet or more.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Determination
of Application Completeness.
Upon receipt of a permit
application, the City shall make a determination regarding whether
the permit application is complete and shall notify the applicant
of that determination as defined and set out in the Design Manual
and right-of-way permit application process.
(1)
If
City determines that an application is not complete, City shall identify
the missing information necessary to complete the review of the application.
(B)
Approval
or Denial of Application.
The City shall approve or deny
a completed application as defined in the Design Manual and right-of-way
permit application process.
(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 and notify
the applicant.
The documentation for the denial is to be sent by electronic
mail to the applicant on or before the deadline for denial of the
application as defined and set out in the Design Manual.
(D)
Deemed
Approved.
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 before the applicable
date for such approval or denial.
(E)
Resubmission
of Denied Application.
The applicant may cure the deficiencies
identified in the denial notice from City without paying an additional
application fee, other than a fee for actual costs incurred by the
City, if, as defined and set out in the Design Manual, from the date
the City denies the completed application the applicant cures the
deficiencies identified in the denial documentation and resubmits
the revised completed application.
(F)
Reconsideration
of Denied Application.
After providing notice of denial
in accordance with this Section, the City shall approve or deny the
revised completed application, as defined and set out in the Design
Manual, after the City receives a revised completed application. The
City’s review shall be limited to the deficiencies cited in
the denial documentation.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
The
network provider shall provide notification to adjacent residential
developments/neighborhoods within 300 feet of the installation of
the micro network node, network node or network node support pole
at Network Provider’s sole cost and expense. Notification must
be made at least 24 hours prior to the commencement of the work.
(B)
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. Notwithstanding
the foregoing, the City Engineer or designee may in his/her sole discretion
grant reasonable extensions of time for completion or grant reasonable
extensions as requested by the network provider.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Applicable
fees and rental rates.
As compensation for the network
provider’s use and occupancy of the City public rights-of-way,
the network provider shall pay application fees and annual public
right-of-way rental rates as set forth in the City’s Fee Schedule,
which shall be in lieu of any lawful tax, license, charge, public
right-of-way permit, use, construction, street cut or inspection fee;
or other public 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. Fees will be assessed for the
following items or any other items as noted in the Fee Schedule:
(1)
Network Nodes.
(a)
Application fee.
(b)
Annual public right-of-way rental rate.
(c)
Public Right-of-Way Rate Adjustment: As provided in § 284.054
of Chapter 284, 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.
(2)
Node Support Poles.
An application fee for each network
support pole.
(3)
Transfer Facilities.
(a)
An application fee for each transfer facility.
(b)
The annual transfer facility rental rate 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 public right-of-way fees
for access lines under Chapter 283 of Chapter 284 or cable franchise
fees under Chapter 66 of the Texas Utility Code.
(4)
Micro Network Nodes.
No application fee is required
for a micro network node if the installation is attached on lines
between poles or node support poles.
(5)
Collocation of Network Nodes on Service Poles.
Subject
to execution of the City’s Service Pole Attachment Agreement,
the collocation of network nodes on City service poles shall allowed
per year per service pole or the maximum amount allowed by law.
(6)
City-Owned Utility Poles; Annual Rate.
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 § 54.024
of the Texas Utilities Code, applied on a per-foot basis.
(B)
In-Kind
Services Prohibited.
The City may not seek or accept
in-kind services unrelated to the installation or collocation for
which a permit is sought, including in-kind contributions such as
reserving fiber, conduit, or pole space for the City, in lieu of or
as additional payment or consideration from any network provider,
as a condition for issuing a permit required under Chapter 284 for
use of the public right-of-way.
(Ordinance 1446-0-07-14, passed 7-14-20)
As provided in § 283.057(a) and (b) and § 284.302,
a wireless network provider shall be required to indemnify, defend,
and hold the City harmless from and against all liability, damages,
cost, and expense, including reasonable attorney’s fees, arising
from injury to person or property proximately caused by the negligent
act or omission of the network provider accessing a public right-of-way
under Chapter 284. The City and the network provider, as applicable,
shall promptly notify each other in writing of any known claim or
demand against the other related to or arising out of the network
provider’s use of the public right-of-way under Chapter 284.
After such notice, the network provider shall defend the claims. The
network provider shall have the right to defend and compromise the
claims. The City shall cooperate in the defense of the claims. The
foregoing indemnity obligations shall not apply to claims arising
solely from the negligence of City; however, they shall apply in the
case of all claims which arise from the joint negligence of the network
provider and the City; provided that in such cases, the amount of
the claims for which the City shall be entitled to indemnification
shall be limited to that portion attributable to the network provider.
Nothing in this section shall be construed as waiving any governmental
immunity available to the City under state law or waiving any defenses
of the parties under state law. Further, the indemnification provided
by Chapter 284 is solely for the benefit of the City and the network
provider and does not create or grant any rights, contractual or otherwise,
to any other person or entity.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Removal
or relocation by network provider.
(1)
Notice.
In the event of removal or relocation of a micro
network node, network node facilities, node support pole or related
ground equipment by a network provider at its own discretion, network
provider shall notify the City Engineer in writing not less than (ten)10
business days prior to removal or relocation. Network provider shall
obtain all Permits required for relocation or removal of its micro
network node, network node facilities, node support poles and related
ground equipment prior to relocation or removal.
(2)
No Refunds.
No refunds of any amounts paid by network
provider for micro network node, network node facilities, node support
poles or related ground equipment that have been removed shall be
due from City to network provider.
(B)
Removal
or relocation required for City project.
(1)
In
accordance with Chapter 284, § 284.107, except as provided in
existing state and federal law, a network provider shall relocate
or adjust micro network node, network node, node support pole and
related ground equipment in a public right-of-way in a timely manner
and without cost to the City of Pflugerville as manager of the public
right-of-way.
(2)
City
may require network provider to remove or relocate its micro network
node, network node, node support pole and related ground equipment,
or any portion thereof from the Public Right-of-Way for City construction
projects as allowed by law, including the common-law without compensation.
(3)
Network
provider shall, at the City Engineer’s direction, remove or
relocate the same at network provider’s sole cost and expense,
except as otherwise provided in existing state and federal law, whenever
the City 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 of
a street or public rights-of-way to enhance the use of the public
for travel and transportation.
(4)
If
network provider fails to remove or relocate the micro network node,
network node, node support pole or related ground equipment, or portion
thereof as requested by the City Engineer within ninety (90) days
of network provider’s receipt of the request, then the City
shall be entitled to remove the micro network node, network node,
node support pole or related ground equipment, or portion thereof
at network provider’s sole cost and expense, without further
notice to network provider.
(5)
Network
provider shall, within thirty (30) days following issuance of invoice
for the same, reimburse the City for its reasonable expenses incurred
in the removal (including, without limitation, overhead and storage
expenses) of the micro network node, network node, node support pole
or related ground equipment, or portion thereof.
(C)
Removal
required by City for Safety and Imminent Danger Reasons.
(1)
Network
provider shall, at its sole cost and expense, promptly disconnect,
remove, or relocate the applicable micro network node, network node,
node support pole and related ground equipment within the time frame
and in the manner required by the City Engineer if the City Engineer
reasonably determines that the disconnection, removal, or relocation
of any part of a micro network node, network node, node support pole
and related ground equipment:
(a)
Is necessary to protect the public health, safety, welfare, or City
property;
(b)
The micro network node, network node, node support pole and related
ground equipment, or portion thereof, is adversely affecting proper
operation of streetlights or City property; or
(c)
Network provider fails to obtain all applicable licenses, permits,
and certifications required by law for its micro network node, network
node, node support pole and related ground equipment, or use of any
location under applicable law.
If the City Engineer reasonably determines that there is imminent
danger to the public, then the City may immediately disconnect, remove,
or relocate the applicable micro network node, network node, node
support pole and related ground equipment at the network provider’s
sole cost and expense.
(2)
The
City Engineer shall provide ninety (90) days written notice to the
network provider before removing a micro network node, network node,
node support pole and related ground equipment under this Section,
unless there is imminent danger to the public health, safety, and
welfare.
(3)
Network
provider shall reimburse City for the City’s actual cost of
removal of micro network node, network node, node support pole and
related ground equipment within thirty (30) days of receiving the
invoice from the City.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
Installation.
Network provider shall, at its own cost and expense, install
the micro network node, network node facilities, node support poles
and related ground equipment in a good and workmanlike manner and
in accordance with the requirements promulgated by the City via the
City Engineer, as such may be amended from time to time. Network provider’s
work shall be subject to the regulation, control and direction of
the City Engineer. All work done in connection with the installation,
operation, maintenance, repair, modification, and/or replacement of
the micro network node, network node facilities, node support poles
and related ground equipment shall be in compliance with all applicable
laws as defined herein.
(B)
Inspection.
The City Engineer, or designee, may perform visual inspections
of any micro network node, network mode, node support pole or related
ground equipment located in the Public Right-of-Way as the City Engineer
deems appropriate without notice to network provider. If the inspection
requires physical contact with the micro network node, network node,
node support poles or related ground equipment, the City Engineer
shall provide written notice to the network provider within five (5)
business days of the planned inspection. Network provider may have
a representative present during such inspection.
(C)
Interference.
The network provider shall provide detailed analysis, in accordance
with the Design Manual, that the installation and operation of a proposed
network node, node support pole or transfer facility shall not cause
any interference with the City public safety radio system, traffic
signal light system, other communications components or the operations
of the Airport near the City of Pflugerville. It shall be the responsibility
of the network provider to evaluate, prior to making the application
for the permit, the compatibility between the existing City infrastructure
and the network provider’s proposed infrastructure. A network
node, node support pole or transfer facility shall not be installed
in a location that causes any interference. Network nodes, node support
poles or transfer facilities shall not be allowed on the City’s
public safety radio infrastructure or within Airport.
(Ordinance 1446-0-07-14, passed 7-14-20)
Network provider shall remove micro network node, network node,
node support pole and related ground equipment when such facilities
are abandoned regardless of whether or not it receives notice from
the City. Unless the City sends notice that removal must be completed
immediately to ensure public health, safety, and welfare, the removal
must be completed within the earlier of ninety (90) days of the micro
network node, network node, node support pole and related ground equipment
being abandoned or within ninety (90) days of receipt of written notice
from the City. When network provider removes, or abandons permanent
structures in the Public Right-of-Way, the network provider shall
notify the City Engineer in writing of such removal or abandonment
and shall file with the City Engineer the location and description
of each micro network node, network node, node support pole and related
ground equipment removed or abandoned. The City Engineer may require
the network provider to complete additional remedial measures necessary
for public safety and the integrity of the Public Right-of-Way.
(Ordinance 1446-0-07-14, passed 7-14-20)
(A)
As-Built
maps and records.
Network provider shall maintain accurate
maps and other appropriate records of its network node facilities,
node support poles and related ground equipment as they are actually
constructed in the Rights-of-Way, including, upon request, the use
of Auto CAD/GIS digital format. Network provider shall provide additional
maps to the City upon request.
(B)
Courtesy
and proper performance.
Network provider shall make citizen
satisfaction a priority in using the Public Right-of-Way. Network
provider shall train its employees to be customer service-oriented
and to positively and politely interact with citizens when dealing
with issues pertaining to its micro network node, network node, node
support pole and related ground equipment in the Public Right-of-Way.
Network provider’s employees shall be clean, courteous, efficient,
and neat in appearance and committed to offering the highest quality
of interaction with the public. If, in the opinion of the City Engineer
or designee, network provider is not interacting in a positive and
polite manner with citizens, he or she shall request network provider
to take all remedial steps to conform to these standards.
(C)
Ownership.
No part of a micro network node, network node, node support
pole and related ground equipment erected or placed on the Public
Right-of-Way by network provider will become, or be considered by
the City as being affixed to or a part of, the Public Right-of-Way.
All portions of the micro network node, network node, node support
pole and related ground equipment constructed, modified, erected,
or placed by network provider on the Public Right-of-Way shall be
and remain the property of network provider and may be removed by
network provider at any time, provided the network provider shall
notify the City Engineer prior to any work in the Public Right-of-Way.
(Ordinance 1446-0-07-14, passed 7-14-20)
