(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)
