(a)
Purpose.
The purpose of this division 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.
(b)
Maps and records.
(1)
A network provider’s as-built maps and records shall be in
strict accordance with this division and other applicable ordinances,
except to the extent not consistent with chapter 284.
(2)
A network provider shall maintain accurate maps and other appropriate
records of its network node facilities, node support poles and related
ground equipment as they are actually constructed in the rights-of-way,
including, upon request, the use of Auto CAD/GIS digital format. The
network provider will provide additional maps to the city upon request.
(c)
Courtesy and proper performance.
(1)
Courtesy and proper performance of the network provider’s personnel,
and contractors, shall be in strict accordance with this division
and other applicable ordinances, except to the extent not consistent
with chapter 284.
(2)
A network provider shall make citizen satisfaction a priority in
using the right-of-way. The network provider shall train its employees
to be customer service oriented and to positively and politely interact
with citizens when dealing with issues pertaining to its micro network
node, network node, node support pole and related ground equipment
in the right-of-way. A network provider’s employees shall be
clean, courteous, efficient, and neat in appearance and committed
to offering the highest quality of interaction with the public. If,
in the opinion of the city manager or designee, a network provider
is not interacting in a positive and polite manner with citizens,
he or she shall request the network provider to take all remedial
steps to conform to these standards.
(d)
Drug policy.
(1)
The drug policy of a network provider’s personnel, and contractors,
in the public rights-of-way shall be in strict accordance with this
division and other applicable ordinances, except to the extent not
consistent with chapter 284.
(2)
It is the policy of the city to achieve a drug-free workforce and
workplace. The manufacture, distribution, dispensation, possession,
sale, or use of illegal drugs or alcohol by a network provider’s
employees, contractors, subcontractors, sub-network providers, or
vendors while on city rights-of-way is prohibited.
(e)
Allocation of city funds for removal and storage of equipment.
The city council has currently appropriated no funds to pay
for the cost of any removal or storage of micro network nodes, network
nodes, node support poles and related ground equipment, as authorized
under the law.
(f)
Ownership of equipment.
(1)
Ownership of network nodes and related equipment shall be in strict
accordance with this division and other applicable codes and ordinances,
except to the extent not consistent with chapter 284.
(2)
No part of a micro network node, network node, node support pole
and related ground equipment erected or placed on the right-of-way
by a network provider will become, or be considered by the city as
being affixed to, or a part of, the right-of-way. All portions of
the micro network node, network node, node support pole and related
ground equipment constructed, modified, erected, or placed by a network
provider in the right-of-way will be and remain the property of the
network provider and may be removed by the network provider at any
time, provided the network provider shall notify the city manager
prior to any work in the right-of-way.
(g)
Tree maintenance.
(1)
Tree maintenance shall be in strict accordance with this division
and other applicable ordinances, except to the extent not consistent
with chapter 284.
(2)
A network provider, its contractors, and agents shall obtain written
permission from the city manager before trimming trees hanging over
its micro network node, network node, or node support pole, to prevent
branches of such trees from contacting an attached micro network node,
network node, or node support pole. When directed by the city manager,
a network provider shall trim under the supervision and direction
of the city manager. The city shall not be liable for any damages,
injuries, or claims arising from a network provider’s actions
under this section.
(h)
Signage.
(1)
Signage shall be in strict accordance with this division and other
applicable ordinances, except to the extent not consistent with chapter
284.
(2)
A network provider shall post its name, location, identifying information,
and emergency telephone number in an area on the cabinet of the network
node facility that is visible to the public. Signage required under
this section shall not exceed 4" x 6", unless otherwise required by
law (e.g., RF ground notification signs) or the city manager.
(3)
Except as required by law or by the utility pole owner, a network
provider shall not post any other signage or advertising on the micro
network node, network node, node support pole, service pole or utility
pole.
(i)
Graffiti abatement.
(1)
Graffiti abatement shall be in strict accordance with this division
and other applicable ordinances, except to the extent not consistent
with chapter 284.
(2)
As soon as practical, but not later than fourteen (14) calendar days
from the date the network provider receives notice thereof, a network
provider shall remove all graffiti on any of its micro network nodes,
network nodes, node support poles, and related ground equipment located
in the right-of-way. The foregoing shall not relieve the network provider
from complying with any city graffiti or visual blight ordinance or
regulation.
(j)
Restoration and repair of property.
(1)
A network provider shall restore and repair the public rights-of-way
from any damage to the right-of-way, or any facilities located within
the right-of-way, and the property of any third party, resulting from
the network provider’s removal or relocation activities (or
any other of the network provider’s activities hereunder) in
strict accordance with this division and other applicable ordinances,
except to the extent not consistent with chapter 284.
(2)
A network provider shall repair any damage to the right-of-way, or
any facilities located within the right-of-way, and the property of
any third party, resulting from the network provider’s removal
or relocation activities (or any other of the network provider’s
activities hereunder), within 10 calendar days following the date
of such removal or relocation, at the network provider’s sole
cost and expense, including restoration of the right-of-way and such
property to substantially the same condition as it was immediately
before the date the network provider was granted a permit for the
applicable location or did the work at such location (even if the
network provider did not first obtain a permit), including restoration
or replacement of any damaged trees, shrubs or other vegetation. Such
repair, restoration and replacement shall be subject to the sole,
reasonable approval of the city manager.
(k)
Network provider’s responsibility.
(1)
A network provider shall be responsible and liable for the acts and
omissions of the network provider’s employees, temporary employees,
officers, directors, consultants, agents, affiliates, subsidiaries,
sub-network providers and subcontractors in connection with the installations
of any micro network node, network node, node support pole and related
ground equipment, as if such acts or omissions were network provider’s
acts or omissions, in strict accordance with this division and other
applicable ordinances, except to the extent not consistent with chapter
284.
(2)
A network provider shall be responsible and liable for the acts and
omissions of the network provider’s employees, temporary employees,
officers, directors, consultants, agents, affiliates, subsidiaries,
sub-network providers and subcontractors in connection with the installations
of any micro network node, network node, node support pole, transport
facility and related ground equipment, as if such acts or omissions
were the network provider’s acts or omissions.
(Ordinance 2017-10-19C, sec. 2 (1.01),
adopted 10/19/17)
This division 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 of Texas.
(Ordinance 2017-10-19C, sec. 2 (1.02),
adopted 10/19/17)
For the purpose of this division, the definitions found in the
city’s Design Manual for the Installation of Network Nodes and
Node Support Poles (“the design manual”) are hereby incorporated
into this division and shall apply unless the context clearly indicates
or requires a different meaning. The following definitions as found
in the design manual are specifically applicable to this division:
means:
means the City of Overton, Texas, or its lawful successor.
means the municipal governing body of the city.
means Texas Local Government Code, chapter 284.
means the Texas Local Government Code.
mean the installation, mounting, maintenance, modification,
operation, or replacement of network nodes in a public right-of-way
on or adjacent to a pole.
means 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.
means and 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.
means the federal administrative agency, or lawful successor,
authorized to oversee cable television and other multi-channel regulation
on a national level.
means right-of-way adjacent to a state or federal highway.
means an area that is zoned or otherwise designated as a
historic district under municipal, state, or federal law.
means common law or a federal, state, or local law, statute,
code, rule, regulation, order, or ordinance.
means within the geographical boundaries of the city.
means the city-approved and lawfully permitted location for
the network node.
means the mayor of the city or designee.
means 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.
means an area that is zoned or otherwise designated by the
city as a public park for the purpose of recreational activity.
means 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
means:
means a pole installed by a network provider for the primary
purpose of supporting a network node.
means 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.
means a service pole, city-owned utility pole, node support
pole, or utility pole.
means 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.”
means 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:
means a pole, other than a city-owned utility pole, owned
or operated by the city and located in a public right-of-way, including:
means 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.
means any device, whether manually, electrically, or mechanically
operated, by which traffic is alternately directed to stop and to
proceed.
means 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.
means 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.
means a pole that provides:
means 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.
means a person that provides wireless service to the public.
mean “micro network nodes,” “network nodes,”
and “node support poles” as defined in Texas Local Government
Code, chapter 284.
(Ordinance 2017-10-19C, sec. 2 (1.03),
adopted 10/19/17)
(a)
Pursuant to this division and subject to the design manual and the
Texas Local Government 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 division 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 2017-10-19C, sec. 2 (1.04),
adopted 10/19/17)
All wireless network providers shall comply with the terms of
this division, city applicable codes, and the terms and conditions
of the city’s design manual.
(Ordinance 2017-10-19C, sec. 2 (1.05),
adopted 10/19/17)
A network provider shall construct and maintain network nodes
and network support poles described in the Texas Local Government
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 2017-10-19C, sec. 2 (1.06),
adopted 10/19/17)
(a)
Permit required.
Except as otherwise provided in chapter
284 of the Texas Local Government 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)
Services for city.
As required by chapter 284 of the
Texas Local Government Code, the city shall not require a network
provider to perform services for the city for which the permit is
sought.
(c)
Consolidated application.
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)
Required information.
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 division;
(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)
Exceptions.
As provided in section 284.157 of the Texas
Local Government 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 2017-10-19C, sec. 2 (1.07),
adopted 10/19/17)
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 described
in the city’s design manual. The city has the authority to designate
new historic districts and design districts at a future date.
(Ordinance 2017-10-19C, sec. 2 (1.08),
adopted 10/19/17)
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 guidelines
set out in the city’s design manual.
(Ordinance 2017-10-19C, sec. 2 (1.09),
adopted 10/19/17)
(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 [denial
documentation].
(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 2017-10-19C, sec. 2 (1.10),
adopted 10/19/17)
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 2017-10-19C, sec. 2 (1.11),
adopted 10/19/17)
(a)
Generally.
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 $100.00
for each network node for up to but not more than 30 network nodes.
(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 Texas Local Government 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 $100.00.
(d)
Transfer facilities.
(1)
Application fee.
The application fee for each transfer
facility shall be $100.00.
(2)
Annual rental rate.
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 Texas Local Government 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 city 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)
Network nodes on 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
54.204 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 2017-10-19C, sec. 2 (1.12),
adopted 10/19/17)
As provided in section 284.302 of the Texas Local Government
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 the 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 2017-10-19C, sec. 2 (1.13),
adopted 10/19/17)
Nothing in this division 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 2017-10-19C, sec. 2 (1.14),
adopted 10/19/17)
(a)
The city council hereby approves the Design Manual by the City of
Overton, Texas for the Installation of Network Nodes and Node Support
Poles, which is attached to Ordinance 2017-10-19D as exhibit A.
(b)
The city council hereby approves the Pole Attachment Agreement, which
is attached to Ordinance 2017-10-19D as exhibit B.
(Ordinance 2017-10-19D adopted 10/19/17)
