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 2017-8-29 adopted 8/29/17)
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 2017-8-29 adopted 8/29/17)
For the purpose of this article, the definitions found in the
city design and construction standards manual, chapter 15 - installation
of network nodes and node support poles (said chapter 15 being hereinafter
referred to as “design and construction standards”) are
hereby incorporated into this article and shall apply unless the context
clearly indicates or requires a different meaning. The following definitions
as found in the design and construction standards are specifically
applicable to this article:
The City of Jarrell, Texas or its lawful successor.
The municipal governing body of the City of Jarrell, Texas.
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 or ordinance, and for which the city maintains and enforces unique
design and aesthetic standards on a uniform and nondiscriminatory
basis.
Includes 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, node support pole, or transport facility.
The mayor of the City of Jarrell, Texas, or designee.
A network node that is not larger in dimension than 24 inches
in length, 15 inches in width, and 12 inches in height, and that has
an exterior antenna, if any, not longer than 11 inches.
An area that is zoned or otherwise designated by the city
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 2017-8-29 adopted 8/29/17)
(a)
Pursuant to this article and subject to the design and construction
standards and the code, a 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 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.
(Ordinance 2017-8-29 adopted 8/29/17)
All wireless network providers shall comply with the terms of
this article, applicable city codes, and the terms and conditions
of the city’s design and construction standards.
(Ordinance 2017-8-29 adopted 8/29/17)
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, 42 U.S.C.
section 12101 et seq. (“ADA”).
(Ordinance 2017-8-29 adopted 8/29/17)
(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, transport facility or other improvements
in a city public right-of-way.
(b)
The city may not directly or indirectly require, as a condition for
issuing a permit required under this article, that a network provider
perform services 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) and compliance
with all permit application requirements, 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
and construction standards 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
and construction standards 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 documents that the network provider
and its contractor have 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.
(f)
Notwithstanding subsection (e) above: (1) the network provider or its contractors shall notify the city at least 24 hours in advance of work described in this subsection (e); (2) the network provider or its contractors may replace or upgrade a pole only with the approval of the pole’s owner; and (3) the size limitations may not in any event exceed the parameters prescribed by section 284.003 without the city’s approval in accordance with section 284.109, with the city acting on behalf of this state as the fiduciary trustee of public property.
(Ordinance 2017-8-29 adopted 8/29/17)
A network provider must obtain advance written consent from
the city council before collocating new network nodes or installing
new node support poles in an area of the city that has been zoned
or otherwise designated as a historic district or as a design district
if the district has decorative poles. The network provider shall be
required to comply with the general aesthetic requirements and all
other applicable requirements described in the city’s design
and construction standards. The city has the authority to designate
new historic districts and design districts, and the authority to
alter or modify existing historic districts and design districts,
at a future date.
(Ordinance 2017-8-29 adopted 8/29/17)
A network provider may not install a new node support pole in
a public right-of-way without the city council’s discretionary,
nondiscriminatory and written consent if the public right-of way:
(1)
Is in a municipal park; or
(3)
In addition to the above, a network provider installing a network
node or node support pole in a public right-of way shall comply with
private deed restrictions and other private restrictions in the area
that apply to those facilities.
(4)
The network provider shall be further required to comply with the
applicable requirements set out in the city’s design and construction
standards.
(Ordinance 2017-8-29 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 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.
(f)
Deemed approval.
An application for a permit for a node
support pole, network node, or transport facility shall be deemed
approved if the application is not approved or denied on or before
the applicable date for approval or denial prescribed by this section.
(Ordinance 2017-8-29 adopted 8/29/17)
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
may in his/her sole discretion grant reasonable extensions of time
as requested by the network provider.
(Ordinance 2017-8-29 adopted 8/29/17)
(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.
(b)
Network nodes.
(1)
Application fee.
The application fee shall be $500.00
covering up to five network nodes, $250 for each additional network
node per application.
(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 $500.00.
(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 Utilities 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)
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 2017-8-29 adopted 8/29/17)
As provided in section 284.302 of the Code, a network provider
accessing a public right-of-way under chapter 284 of the Code shall
indemnify and hold the city and its officers and employees harmless
against any and all claims, lawsuits, judgments, costs, liens, losses,
expenses, fees (including reasonable attorney’s fees and costs
of defense), proceedings, actions, demands, causes of action, liability,
and suits of any kind and nature, including personal or bodily injury
(including death), property damage, or other harm for which recovery
of damages is sought that is found by a court of competent jurisdiction
to be caused solely by the negligent act, error, or omission of the
network provider, any agent, officer, director, representative, employee,
affiliate, or subcontractor of the network provider, or its respective
officers, agents, employees, directors, or representatives, while
installing, repairing, or maintaining facilities in a public right-of-way.
The indemnity provided by this section does not apply to any
liability resulting from the negligence of the city, its officers,
employees, contractors, or subcontractors. If a network provider and
the city are found jointly liable by a court of competent jurisdiction,
liability shall be apportioned comparatively in accordance with the
laws of this state without, however, waiving any governmental immunity
available to the city under state law and without waiving any defenses
of the parties under state law. This section is solely for the benefit
of the city and network provider and does not create or grant any
rights, contractual or otherwise, to any other person or entity. A
network provider or city shall promptly advise the other in writing
of any known claim or demand against the network provider or the city
related to or arising out of the network provider’s activities
in a public right-of-way.
(Ordinance 2017-8-29 adopted 8/29/17)
Except as provided in existing state and federal law, a network
provider shall relocate or adjust network nodes in a public right-of-way
in a timely manner and without cost to the municipality managing the
public right-of-way.
(Ordinance 2017-8-29 adopted 8/29/17)
A network provider shall operate all network nodes in accordance
with all applicable laws, including regulations adopted by the Federal
Communications Commission. A network provider shall ensure that the
operation of a network node does not cause any harmful radio frequency
interference to a Federal Communications Commission-authorized mobile
telecommunications operation of the city operating at the time the
network node was initially installed or constructed. On written notice,
a network provider shall take all steps reasonably necessary to remedy
any harmful interference.
(Ordinance 2017-8-29 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 2017-8-29 adopted 8/29/17)
Adopted as exhibit A of Ordinance No. 2017-8-29.
(Ordinance 2017-8-29 adopted 8/29/17)
