The purpose of this article is to:
(1)
Assist
the city in the competitively neutral and nondiscriminatory management
of the physical use, occupancy and maintenance of its public rights-of-way
by wireless network providers;
(2)
Secure
fair and reasonable compensation for the physical use and occupancy
of the public rights-of-way by wireless network providers in a nondiscriminatory
and competitively neutral manner; and
(3)
Assist
the city in protecting the public health, safety, and welfare.
(Ordinance 1183 adopted 8/24/17)
This article shall be construed in accordance with chapter 284
of the Texas Local Government Code (“the code”) to the
extent not in conflict with the Constitution and laws of the United
States or of the state.
(Ordinance 1183 adopted 8/24/17)
For the purpose of this article, the definitions found in the
city design manual for the installation of network nodes and node
support poles (“the design manual”) are hereby incorporated
into this article and shall apply unless the context clearly indicates
or requires a different meaning. In the event of a conflict between
the definitions in this article and the definitions contained in Texas
Local Government Code chapter 284, the definitions contained in chapter
284 shall apply. The following definitions as found in the design
manual are specifically applicable to this article:
The City of Coleman, Texas or its lawful successor.
The municipal governing body of the city.
Texas Local Government Code, chapter 284.
The Texas Local Government Code.
The installation, mounting, maintenance, modification, operation,
or replacement of network nodes in a public right-of-way on or adjacent
to a pole.
A streetlight pole specially designed and placed for aesthetic
purposes and on which no appurtenances or attachments, other than
specially designed informational or directional signage or temporary
holiday or special event attachments, have been placed or are permitted
to be placed according to nondiscriminatory city codes and ordinances.
An area that is zoned, or otherwise designated by municipal
code, and for which the city maintains and enforces unique design
and aesthetic standards on a uniform and nondiscriminatory basis.
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 administrative agency, or lawful successor, authorized
to oversee cable television and other multi-channel regulation on
a national level.
Right-of-way adjacent to a state or federal highway.
An area that is zoned or otherwise designated as a historic
district under municipal, state, or federal law.
Common law or a federal, state, or local law, statute, code,
rule, regulation, order, or ordinance.
Within the geographical boundaries of the city.
The city-approved and lawfully permitted location for the
network node.
The mayor of the city, 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
as a public park for the purpose of recreational activity.
Equipment at a fixed location that enables wireless communications
between user equipment and a communications network. The term:
Includes:
Equipment associated with wireless communications;
A radio transceiver, an antenna, a battery-only backup power
supply, and comparable equipment, regardless of technological configuration;
and
Coaxial or fiber-optic cable that is immediately adjacent to
and directly associated with a particular collocation; and
A pole installed by a network provider for the primary purpose
of supporting a network node.
A written authorization for the use of the public right-of-way
or collocation on a service pole required from the city before a network
provider may perform an action or initiate, continue, or complete
a project over which the municipality has police power authority.
A service pole, city-owned utility pole, node support pole,
or utility pole.
An easement or other real property right that is only for
the benefit of the grantor and grantee and their successors and assigns.
Has the same meaning as “network provider.”
The area on, below, or above a public roadway, highway, street,
public sidewalk, alley, waterway, or utility easement in which the
city has an interest. The term does not include:
A pole, other than a city-owned utility pole, owned or operated
by the city and located in a public right-of-way, including:
Only the paved portion of the right-of-way used for vehicular
travel, being the area between the inside of the curb to the inside
of the opposite curb, or the area between the two parallel edges of
the paved roadway for vehicular travel where there is no curb. A “street”
is generally part of, but smaller in width than the width of the entire
right-of-way, while a right-of-way may include sidewalks and utility
easements. A “street” does not include the curb or the
sidewalk, if either are present at the time of a permit application
or if added later.
Any device, whether manually, electrically, or mechanically
operated by which traffic is alternately directed to stop and to proceed.
Each transmission path physically within a public right-of-way,
extending with a physical line from a network node directly to the
network, for the purpose of providing backhaul for network nodes.
A person or organization which conducts a business over facilities
occupying the whole or a part of a public street or right-of-way,
depending on the context.
A pole that provides:
Any service, using licensed or unlicensed wireless spectrum,
including the use of wi-fi, whether at a fixed location or mobile,
provided to the public using a network node.
A person that provides wireless service to the public.
“Micro network nodes,” “network nodes,”
and “node support poles” as defined in Texas Local Government
Code, chapter 284.
(Ordinance 1183 adopted 8/24/17)
(a)
Pursuant
to this article and subject to the design manual and the code, a wireless
network provider has the nonexclusive right to use and occupy the
public rights-of-way in the city for the purpose of constructing,
maintaining, and operating its facilities used in the provision of
wireless facilities.
(b)
The
terms of this article shall apply to all wireless network providers’
facilities used, in whole or part, in the provision of wireless services
throughout the city, including any annexed areas upon the effective
date of annexation or the date the city provides the company written
notice, whichever date occurs later.
(Ordinance 1183 adopted 8/24/17)
All wireless network providers shall comply with the terms of
this right-of-way management ordinance, city applicable codes, and
the terms and conditions of the city’s design manual, which
are incorporated by reference into this article. Each network node,
network support pole or transport facility shall comply with the city’s
design manual.
(Ordinance 1183 adopted 8/24/17)
A network provider shall construct and maintain network nodes
and network support poles described in the code 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)
Violate
nondiscriminatory applicable codes;
(4)
Violate
or conflict with the city’s publicly disclosed public right-of-way
design specifications; or
(5)
Violate
the federal Americans With Disabilities Act of 1990 (ADA).
(Ordinance 1183 adopted 8/24/17)
(a)
Except
as otherwise provided in chapter 284 of the code, a network provider
shall obtain a permit or permits from the city to install a network
node, node support pole, or transport facility in a city public right-of-way.
(b)
As
required by chapter 284 of the code, the city shall not require a
network provider to perform services for the city, unrelated to the
installation or collocation for which the permit is sought, including
in-kind contributions such as reserving fiber, conduit, or pole space
for the city.
(c)
A
network provider that wants to install or collocate multiple network
nodes inside the municipal limits of the city is entitled to file
a consolidated permit application with the city for not more than
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.
(d)
The
network provider shall provide the following information in its permit
applications:
(1)
Applicable construction and engineering drawings and information
to confirm that the applicant will comply with the city’s design
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 and this article;
(3)
A certificate that the network node(s) complies with applicable regulations
of the Federal Communications Commission; and certification that the
proposed network node(s) will be placed into active commercial service
by or for the network provider not later than the 60th day after the
date of construction and final testing of each network node is completed;
(4)
A certificate of insurance that provides that the network provider
and its contractor has at least $1,000,000.00 in general liability
coverage.
(e)
Exception.
As provided in section 284.157 of the code,
a network provider is not required to apply, obtain a permit, or pay
a rate to the city for:
(1)
Routine maintenance that does not require excavation or closing of
sidewalks or vehicular lanes in a public right-of-way;
(2)
Replacing or upgrading a network node or network pole with a node
or pole that is substantially similar in size or smaller and that
does not require excavation or closing of sidewalks or vehicular lanes
in a public right-of-way; or
(3)
The installation, placement, maintenance, operation, or replacement
of micro network nodes that are strung on cables between existing
poles or node support poles in compliance with the National Electrical
Safety Code;
(Ordinance 1183 adopted 8/24/17)
(a)
Determination of application completeness.
The city
shall determine whether the permit application is complete and notify
the applicant of that determination:
(b)
Approval or denial of application.
The city shall approve
or deny a completed application after the date it is submitted to
the city:
(1)
For network nodes: No later than 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.
(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 1183 adopted 8/24/17)
A 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. The city manager
or designee may in his/her sole discretion grant reasonable extensions
of time as requested by the network provider.
(Ordinance 1183 adopted 8/24/17)
(a)
As
compensation for the network provider’s use and occupancy of
the city public rights-of-way, the network provider shall pay application
fees and annual public right-of-way rental rates as set forth below,
which shall be in lieu of any lawful tax, license, charge, right-of-way
permit, use, construction, street cut or inspection fee; or other
right-of-way related charge or fee, whether charged to the network
provider or its contractor(s) within the city, except the usual general
ad valorem taxes, special assessments and sales tax levied in accordance
with state law and equally applicable to all general businesses in
the city. In the event the fees and rental rates to the city are in
conflict with chapter 284 of the Local Government Code, chapter 284
shall apply and the city shall charge that fee and/or rental rate,
it being the intent of this article that the city may charge the maximum
rate as permitted by chapter 284.
(b)
Network nodes.
(1)
Application fee.
The application fee shall be $500.00
for each network node for up to but not more than 5 network nodes,
and $250.00 for each additional network node.
(2)
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 rights-of-way.
(3)
Public right-of-way rate adjustment.
As provided in
section 284.054 of the code, the city may adjust the amount of the
annual public right-of-way rate not more than annually by an amount
equal to one-half the annual change, if any, in the Consumer Price
Index (CPI). The city shall provide written notice to each network
provider of the new rate; and the rate shall apply to the first payment
due to the city on or after the 60th day following the written notice.
(c)
Node support poles.
The application fee for each network
support pole shall be $1,000.00.
(d)
Transfer facilities.
(1)
The application fee for each transfer facility shall be $100.00.
(2)
The annual transfer facility rental rate shall be $28.00 monthly
for each network node site located in a public right-of-way. However,
no rate is required if the network provider is already paying the
city an amount equal to or greater than the amount of other city right-of-way
fees for access lines under chapter 283 of the code or cable franchise
fees under chapter 66 of the Texas Utility Code.
(e)
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.
(f)
Collocation of network nodes on service poles.
Subject
to the city’s pole service agreement, the collocation of network
nodes on city service poles shall be at a rate of $20.00 per year
per service pole.
(g)
City-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 city-owned utility pole
based upon the pole attachment rate consistent with section 54.024
of the Texas Utilities Code, applied on a per-foot basis.
(h)
In-kind services.
The city shall not seek or accept
in-kind services in lieu of or as additional payment or consideration
from any user of the public rights-of-way for use of the public rights-of-way.
(Ordinance 1183 adopted 8/24/17)
(a)
A
network provider shall remove, relocate or adjust a network node,
node support pole or transport facility at its own expense not later
than one hundred twenty (120) days after receiving written notice
that the removal, relocation or alteration of the facilities is necessary
due to:
(1)
Construction, completion, repair, widening, relocation, or maintenance
of, or use in connection with, any city construction or maintenance
project or other public improvement project;
(2)
Maintenance, upgrade, expansion, replacement, removal or relocation
of the city’s pole or structure upon which provider’s
network nodes are attached;
(3)
The network node or node support pole, or portion thereof, is adversely
affecting proper operation of traffic signals, streetlights or other
city property;
(4)
Closure of a street or sale of city property;
(5)
Projects and programs undertaken to protect or preserve the public
health or safety;
(6)
Activities undertaken to eliminate a public nuisance;
(7)
Provider fails to obtain all applicable licenses, permits, and certifications
required by law for its network nodes or node support poles; or
(8)
Duty otherwise arising from applicable law.
(b)
If
the city manager, or designee, reasonably determines that a network
node, node support pole or transport facility poses a health, safety
and welfare of the public [sic], then the city may provide written
notice to the network provider, who shall remedy the danger to the
health, safety and welfare of the public within 30 days or the city
may do so and bill the network provider for the actual cost of repair,
construction or relocation.
(c)
If
the city manager, or designee, reasonably determines that a network
node, node support pole or transport facility poses an imminent danger
to the health, safety and welfare of the public, the city may immediately
disconnect, remove, or relocate the applicable network node, node
support pole or transport facility and bill the network provider for
the actual cost of construction or relocation.
(Ordinance 1183 adopted 8/24/17)
As provided in section 284.302 of the code, a wireless network
provider 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.
(Ordinance 1183 adopted 8/24/17)
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 1183 adopted 8/24/17)
