(a) 
The city herein adopts the city design manual for the installation of network nodes and node support poles (“city design manual”) which provides installation and construction regulations for wireless service facilities in addition to those provided by the city right-of-way management article. Any amendments to the city design manual shall be adopted pursuant to ordinance by the city council. All persons shall comply with the terms of the city right-of-way management article, city design manual and applicable codes.
(b) 
The city manager or his designee is hereby authorized to negotiate and execute pole attachment agreements for the collocation of network nodes on services poles.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
For purposes of this division, the city herein designates the following areas as design districts:
(1) 
The central business overlay district defined on the official zoning map for the city.
(2) 
The gateway corridor overlay district defined on the official zoning map for the city.
(3) 
The interstate overlay district defined on the official zoning map for the city.
(4) 
Flexible zoning district defined on the official zoning map for the city.
(5) 
The following planned unit developments within the city, as recorded in the county office of property records:
(A) 
Bella Vita PUD;
(B) 
Bradfield Village PUD;
(C) 
Creekside Park PUD; and
(D) 
Silverado PUD.
(b) 
For purposes of this division, the city herein designates any area that is designated as a historic district pursuant to state or federal law and the following areas as historic districts:
(1) 
The historic overlay district defined on the official zoning map for the city.
(c) 
For purposes of this division, the city herein designates all areas designated as city parks and recreation facilities as published by the city at www.budatx.maps.arcgis.com as municipal parks for recreational activity.
(d) 
The city may designate additional areas historic districts, design districts or municipal parks for the purposes of recreational activity at any time. The failure to designate an area in this article shall not mean that such an area is not within a defined district, if so designated by the city council. Future areas may be designated as one of these districts at any time. Such a designation does not require compliance with the zoning ordinance.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
A permit issued by the city engineer is required as a condition to the performance of work in the public right-of-way or city-owned property by a utility, network provider or any other person, except in the case of emergency work. As required by Texas Local Government Code chapter 284, the city shall not require a network provider to perform services for the city for which the permit is sought.
(b) 
Any utility with a current and unexpired consent, franchise agreement or other authorization from the city (“grant”) to use the public right-of-way that is in effect at the time this article, right-of-way management article, is adopted, shall continue to operate under and comply with that grant (except to the extent the police power regulations in such grant are inconsistent with this article, in which event, this article will control) until the grant expires or until it is terminated by mutual agreement of the city and the utility, or is terminated as otherwise provided for in law.
(c) 
A utility or network provider requiring a permit shall file a written, dated application with the city engineer on a form provided by the city. The application shall include the following:
(1) 
The contractor’s name and contact information;
(2) 
The nature and location of the work being proposed;
(3) 
The dates and hours the work is proposed to be performed;
(4) 
The nature of the surface of the right-of-way;
(5) 
An erosion control plan;
(6) 
A restoration plan, including designation of the time within which the applicant plans to complete the restoration in accordance with the requirements of this chapter;
(7) 
A schedule of project values;
(8) 
Applicable construction and engineering drawings and information to confirm that the applicant will comply with the city design manual and applicable codes;
(9) 
Evidence of insurance and bonding as specified within section 18.04.113 of this article; and
(10) 
Such other information as may be required by the city engineer.
(d) 
If the work proposed by the applicant entails the traversing of a paved roadway, boring under the street shall be required rather than cutting the pavement, provided that the city engineer may authorize pavement cuts in lieu of boring, upon review and recommendation of the designated city representative, where boring is found not to be feasible.
(e) 
The city shall issue the permit if, based upon all information made available, the city engineer is satisfied that:
(1) 
Appropriate safeguards will be taken to protect the public interest; and
(2) 
The plans and specifications are consistent with all applicable local and state regulatory and legal requirements.
(f) 
In the event a utility or network provide performs work as an emergency, it shall, as soon as practicable, notify the city engineer of the work, and make an application for such work. The emergency work may be performed subject to issuance of a permit therefor, and must comply with all provisions of this article.
(g) 
A permit granted by the city engineer may vary from the application and may be modified by the city engineer at any time while the work is in progress.
(h) 
A permit shall be issued for a specified period of time. Work authorized thereunder may be performed only during such specified period. The city engineer may, upon application by a person or utility, grant an extension of the work permit period.
(i) 
A network provider that wants to install or collocate multiple network nodes inside the municipal limits of the city is entitled to file a consolidated permit application with the city for not more than 30 network nodes and upon payment of the applicable fee(s), receive a permit or permits for the installation or collocation of those network nodes.
(j) 
Exception: As provided in V.T.C.A., Local Government Code § 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 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;
(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; or
(4) 
Notwithstanding subsection (j) above, the network provider or its contractors shall notify the city at least 24 hours in advance of work described in this article.
(Ordinance 2017-08 adopted 8/29/17)
A network provider must obtain advance approval from the city before collocating new network nodes or installing new node support poles in an area of the city zoned or otherwise designated as a historic district or as a design district if the district has decorative poles. As a condition for approval of new network nodes or new node support poles in a historic district or a design district with decorative poles, a network provider shall comply with the general aesthetic requirements provided in the city design manual and all other applicable regulatory and legal requirements.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
A network provider shall not install a new node support pole in a public right-of-way without the city’s written consent if the public right-of way:
(1) 
Is in a municipal park; or
(2) 
Is adjacent to a street or thoroughfare that is:
(A) 
Not more than 50 feet wide; and
(B) 
Adjacent to single-family residential lots or other multifamily residences or adjacent to undeveloped land that is designated for residential use by zoning or deed restriction.
(b) 
Network providers shall comply with the general aesthetic requirements provided in the city design manual for any new network nodes or new node support poles in a municipal park as a condition to city approval.
(c) 
In addition to the requirement prescribed by subsection (a), a network provider installing a network node or node support pole in a public right-of way described by subsection (a) shall comply with private deed restrictions and other private restrictions in the area that apply to those facilities.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
Determination of application completeness.
The city shall determine whether the permit application is complete and notify the applicant of that determination:
(1) 
For utilities, network nodes, and node support poles.
No later than 30 days after the date the city receives the permit application.
(2) 
For a transport facility.
No later than 10 days after the date the city receives the permit application.
(b) 
Approval or denial of application.
The city shall approve or deny a completed application after the date it is submitted to the city:
(1) 
For utilities and network nodes.
No later than 60 days after the date the city receives the complete application.
(2) 
For network support poles.
No later than 150 days after the date the city receives the complete application.
(3) 
For transport facilities.
No later than 21 days after the city receives the complete application.
(c) 
Basis for denial of application.
If an application is denied by the city, 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, subject to the following:
(1) 
The applicant has 30 days from the date the city denies the completed application to cure the deficiencies identified in the denial documentation without paying an additional application fee, other than any fee for actual costs incurred by the city.
(2) 
The city shall approve or deny the revised completed application after a denial not later than the 90th day after the city receives the revised completed application. The city’s review shall be limited to the deficiencies cited in the denial documentation.
(e) 
Nondiscriminatory review.
Each completed application shall be processed by the city on a nondiscriminatory basis.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
Any utility or network provider contesting the denial of a permit application rendered by the city under this article may file an appeal with the city manager or the city manager’s designee on the prescribed appeal form, within ten (10) days after a written basis for permit denial has been provided to the applicant.
(b) 
In such case of an appeal, a hearing shall be scheduled before the city’s planning and zoning commission in its first available monthly meeting following receipt of the appeal, or contingent on satisfying proper legal notice requirements for posting of the commission’s meeting agenda. Upon conducting the hearing, including any supplemental information the appellant may wish to present, the planning and zoning commission shall make a recommendation to the city council on the appeal.
(c) 
The city manager or the city manager’s designee shall set the date of such hearing before the city council, and the city council will have final authority on the appealed denied permit application.
(Ordinance 2017-08 adopted 8/29/17)
A utility or network provider shall begin installation for which a permit is granted not later than six months after final approval of the application and shall diligently pursue installation to completion. Failure to begin installation within the time provided invalidates a permit issued under this article. Failure to diligently pursue installation to completion invalidates a permit issued under this article. The city engineer may in his/her sole discretion may determine a permit invalidated pursuant to this section, and may further grant reasonable extensions of time as requested by the utility or network provider if reasonably justified under the circumstance.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
Upon completion of work, each utility or network provider shall remove all debris and excess spoil, permanently repair any paving in the public right-of-way that has been cut, broken, or damaged, and restore the public right-of-way and any plant material that has been disturbed to the condition existing prior to the work in accordance with the requirements set out in subsection (b), below.
(b) 
If grass is used in the restoration, all planting shall be done between May 1st and September 15th except as specifically authorized in writing. If planting, is authorized to be done outside the dates specified, the seed shall be planted with the addition of winter fescue at a rate of 100 pounds per acre. Grass shall be common Bermuda grass, hulled, minimum 82 percent pure live seed. All grass seed shall be free from noxious weed, grade “A” recent crop, cleaned and treated with appropriate fungicide at time of mixing. Seed shall be furnished in sealed, standard containers with dealer’s guaranteed analysis.
(c) 
Plant material shall be considered to be restored when at least one and half (1-1/2") inches of growth covers at least 95 percent of the area disturbed by the work; provided that no barren areas larger than ten square feet remain. Trees, sod, shrubs, and larger plants shall be replaced.
(d) 
The city shall, within 10 days from receipt of a written request to inspect from a utility or network provider, perform an inspection. If all the requirements of this article have been met, the city engineer shall issue a notice of satisfactory completion with the date of approval set forth thereon. If the city fails to start its inspection within such 10-day period, any notice issued to a utility or network provider shall bear the date of receipt of the written inspection request.
(e) 
For utilities that will ultimately be dedicated to the city, upon completion and city’s certificate of completion for the improvements, the surety amount will be refunded.
(f) 
For utilities that will ultimately be dedicated to the city, a utility shall maintain such repairs and restoration, other than grass that subsequently dies, in good condition for a period of two (2) years from the date of the certificate of completion. Nothing herein is intended to absolve the utility from responsibility for the proper installation, repair, and maintenance of any work; the two-year maintenance period applies only to the repair and restoration. Contractor will give the city a two-year maintenance bond for the repair and restoration.
(g) 
For utilities that will ultimately be dedicated to the city, the city shall notify the utility in writing if, during the two-year maintenance period, the repairs or restoration are or become in need of maintenance, or if the plant material replaced by the public utility, other than grass, dies. If such maintenance is not performed within a scheduled time period agreed upon by the public utility and the city, or if no agreement is reached as to a schedule within 60 days after notice from the city, or if no response is received by the city within two weeks after such notification, the city may have such maintenance performed and bill the costs to the utility which shall be liable for such costs or process a claim on the contractor’s maintenance bond.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
If repairs to the public right-of-way are deemed necessary by the city in order to correct a hazardous condition and the need for such repairs is caused by work (including defective repairs or failure to repair) by a utility or network provider, the city shall notify the utility or network provider. If the utility or network provider does not provide an acceptable schedule for making the repairs within 24 hours after receipt of such notice, the city may have such repairs done.
(b) 
Pending repair of a hazardous condition as set out in subsection (a), above, the city may take necessary action to mitigate the hazard.
(c) 
The city may bill the costs of repair or mitigation, as set out in subsections (a) and (b), above, to the utility or network provider which shall be liable for such costs.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
All utility companies or network providers who have facilities in the public right-of-way existing as of the adoption date of the ordinance from which this article is derived shall provide a system map of their facilities to the city in a digital format commercially available, nonproprietary software no later than 1 year after the passage of this article, unless the utility or network provider demonstrates an economic impracticality to provide such system map in the above format. An updated system map shall also be provided to the city on an annual basis to include new facilities.
(b) 
Information provided to the city pursuant to this article may be designated confidential by the providing utility or network provider and will be kept confidential by the city to the extent allowed by law.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
As compensation for the network provider’s use and occupancy of the city public right-of-way, the network provider shall pay application fees and annual public right-of-way rental rates as set forth herein, as provided by law:
(1) 
Network nodes.
(A) 
Application fee.
The application fee shall be $100.00 for each network node for up to but not more than 30 network nodes.
(B) 
Annual public right-of-way rate fee.
The annual public right-of-way rate shall be $250.00 per network node installed in the city public right-of-way.
(C) 
Public right-of-way rate adjustment.
As provided by V.T.C.A., Local Government Code § 284.054, the city may adjust the amount of the annual public right-of-way rate not more often 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.
The application fee for each node support pole shall be $100.00.
(3) 
Transport facilities.
(A) 
The application fee for each transport facility shall be $100.00.
(B) 
The monthly public right-of-way rate for transport facilities rental shall be $28.00 for each network node located in a public right-of-way. However, no rate is required if the network provider is already paying the city an amount greater than the amount of other city right-of-way fees for access lines under V.T.C.A, Local Government Code, ch. 283 or cable franchise fees under V.T.C.A., Utility Code, ch. 66.
(4) 
Micro network nodes.
No application fee is required for a micro network node if the installation is strung on cables between existing poles or node support poles, in compliance with the National Electrical Safety Code.
(5) 
Collocation of network nodes on service poles.
Subject to entering into the city’s service pole collocation attachment license agreement the collocation of network nodes on city service poles shall be at a rate of $20.00 per year per service pole.
(6) 
Municipally owned municipal utility poles.
A network provider shall pay an annual pole attachment rate for the collocation of a network node supported by or installed on a municipality owned utility pole based upon the pole attachment rate which is consistent with V.T.C.A, § 54.204 of the Texas Utilities Code, applied on a per-foot basis.
(b) 
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 right-of-way for use of the public right-of-way.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
Insurance.
(1) 
A utility or network provider shall obtain and maintain insurance in the amounts provided in subsection (a)(2) of this section with an insurance company licensed to do business in the state, with an AM Best rating of at least A-. A utility or network provider shall file and maintain proof of insurance with the city engineer at the time of the request for permits and prior to any commencement of work.
(2) 
A utility or network provider shall furnish to the city engineer, at no cost to the city, a certificate of insurance in form acceptable to the city, showing proof of liability insurance in the total amount of $1,000,000.00.
(3) 
The insurance certificate required under subsection (a)(2) of this section shall:
(A) 
Include a cancellation provision in which the insurance company is required to provide the city a 30-day written notice before a cancellation, nonrenewal, reduction of policy limits, or other material change; and
(B) 
Provide that notice of claims related to public right-of-way construction shall be provided to the city engineer by certified mail.
(4) 
The coverage must be on an occurrence basis and must include coverage for personal injury, contractual liability, premises liability, medical damages, and apply to underground, explosion, and collapse hazards.
(5) 
An insurance certificate obtained in compliance with this section is subject to city attorney approval. A utility or network provider shall immediately advise the city of actual or potential litigation that may develop and may affect an existing carrier’s obligation to defend and indemnify.
(6) 
The policy clause “other insurance” shall not apply to the city if the city is an insured under the policy.
(7) 
A utility or network provider shall pay premiums and assessments for the insurance required under this article. The insurance shall be primary coverage for losses covered by the policies. A company that issues an insurance policy has no recourse against the city for payment of a premium or assessment. Insurance policies obtained by a utility must provide that the issuing company waives all right of recovery by way of subrogation against the city in connection with damage covered by the policy.
(8) 
The city will accept certificates of self-insurance issued by the state, or letters written by the utility or network provider in those instances where the state does not issue such certificates, which provide the same coverage as required herein. The city has the right to require proof of financial stability prior to accepting the proof of self-insurance, provided that defense of the city shall be comparable as provided by an insurance carrier. The defense and claims processing required of holders of a state-issued certificate of franchising authority to provide cable or video services shall be in accordance with V.T.C.A., Utilities Code ch. 66.
(b) 
Bonds.
(1) 
For utilities other than network providers, unless otherwise provided for by a utility’s valid franchise, the city engineer shall require reasonable bonding requirements of a utility, as are required of other entities that place facilities in the public right-of-way. Such bonding amounts will be reasonably determined by the city engineer depending on several factors as to public safety and risk of harm to persons and property. Such factors include, but are not limited to:
(A) 
The nature of the construction project;
(B) 
The type of facility; and
(C) 
Past construction history of the utility in the city as to any damage claims, repairs and timeliness of construction.
(2) 
For utilities other than network providers, the utility shall file an annual surety bond which will be valid each year construction will occur through two (2) full years after the completion of the construction from a surety company authorized to do business in the state, and must be on forms provided by the city. Such surety bond will be in the amount of the estimated cost to restore the public right-of-way for the work anticipated to be done in that year and to relocate facilities pursuant to this article. If the city engineer determines that the annual surety bond on file is insufficient to restore the public right-of-way and to relocate facilities related to a specific project for which a permit application has been filed, then the city engineer may require the utility to file an additional surety bond for such project.
(3) 
For utilities other than network providers, the city may either waive or reduce the amount of the bond in the event the utility provides written documentation as to reserves available to compensate the city for damages, and has a two (2) year history of no claims, or damages to city property by the city, or of prompt payment on such claims. Further, notwithstanding subsection (b)(1) of this section, a bond shall not be required of a utility that can demonstrate a record of at least four (4) years of work in the public right-of-way in the city and to the extent applicable, in all other municipalities it has performed such work, free of unsatisfied claims. No bonds for aerial construction will be required of holders of a state-issued certificate of franchising authority to provide cable or video services, in accordance with V.T.C.A, Utilities Code ch. 66.
(4) 
Alternate compliance methods.
The above requirements may be met by utilities with a current franchise or license if their current franchise or license adequately provides for insurance or bonds or provides an indemnity in favor of the city.
(Ordinance 2017-08 adopted 8/29/17)
(a) 
Except as to certificated telecommunications providers, as provided in V.T.C.A., Local Government Code ch. 283, and holders of a state-issued certificate of franchising authority to provide cable or video services, in accordance with V.T.C.A, Utilities Code ch. 66, each utility other than network providers placing facilities in the public right-of-way shall agree to promptly defend, indemnify and hold the city harmless from and against all damages, costs, losses, claims, demands, suits, causes of action, judgments or expenses arising out of, incident to, concerning or resulting from the negligent or willful acts or omissions of the utility, its agents, employees, and subcontractors, in the performance of activities pursuant to or authorized under this article for the repair, replacement or restoration of the city’s property, equipment, materials, structures and facilities that are damaged, destroyed or found to be defective; damage to or loss of the property of any other utility, including but not limited to that damaged utility, its agents, officers, employees and subcontractors, city’s agents, officers and employees, and third parties; and death, bodily injury, illness, disease, loss of services, or loss of income or wages to any person, including, but not limited to, the agents, officers and employees of the utility, utility’s subcontractors and city, and third parties.
(b) 
Upon commencement of any suit, proceeding at law or in equity against the city relating to or covering any matter covered by this indemnity, for which the utility is obligated to indemnify and hold the city harmless, or to pay said final judgment and costs, as the case may be, the city shall give the utility reasonable notice of such suit or proceeding. The utility shall promptly provide a defense to any such suit or suits, including any appellate proceedings brought in connection therewith, and pay any final judgment or judgments that may be rendered against the city by reason of such damage suit. Upon failure of the utility to comply with the provisions of this article, after reasonable notice to the city, the city shall have the right to defend the same and in addition to being reimbursed for any such judgment that may be rendered against the city, together with all court costs incurred therein, the utility shall promptly reimburse the city for attorney’s fees, including those employed by the city in such case or cases, as well as all expenses incurred by the city by reason of undertaking the defense of such suit or suits, whether such suit or suits are successfully defended, settled, compromised, or fully adjudicated against the city.
(c) 
This indemnity provision shall not apply to any liability resulting solely from the negligence of the city, its officers, employees, agents, contractors or subcontractors.
(d) 
The provisions of this indemnity are solely for the benefit of the city and are not intended to create or grant any right, contractual or otherwise, to any other person or entity.
(e) 
To the fullest extent permitted by law, a utility shall pay all expenses incurred by the city in defending itself with regard to all damages and penalties provided in this article. These expenses shall include all out-of-pocket expenses such as attorney’s fees, and shall also include the reasonable value of any services rendered by any employees of the city. In the event the city is compelled to undertake the defense of any such suit by reason of a utility’s failure to provide a defense as hereinabove provided, the city shall have full right and authority to make or enter into any settlement or compromise of such adjudication as the city council shall deem in the best interest of the city, without the prior approval or consent of the utility with respect to the terms of such compromise or settlement.
(f) 
A wireless network provider specifically, shall indemnify, defend, and hold the city harmless from and against all liability, damages, cost, and expense, including reasonable attorney’s fees, arising from injury to person or property proximately caused by the negligent act or omission of the network provider. The city shall promptly notify the network provider of any claims, demands, or actions (“claims”) covered by this indemnity after which the network provider shall defend the claims. The network provider shall have the right to defend and compromise the claims. The city shall cooperate in the defense of the claims. The foregoing indemnity obligations shall not apply to claims arising solely from the negligence of city; however, they shall apply in the case of all claims which arise from the joint negligence of the network provider and the city; provided that in such cases, the amount of the claims for which the city shall be entitled to indemnification shall be limited to that portion attributable to the network provider. Nothing in this section shall be construed as waiving any governmental immunity available to the City under state law or waiving any defenses of the parties under state law, as provided in V.T.C.A., Local Government Code § 284.302.
(Ordinance 2017-08 adopted 8/29/17)
If a utility or network provider violates the terms and conditions contained herein, a permit may be revoked by the city engineer.
(Ordinance 2017-08 adopted 8/29/17)