(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.
(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;
(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:
(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
(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
(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.
(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:
(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.
(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:
(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)
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 2017-08 adopted 8/29/17)
