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 2084, secs. I, II, adopted 8/28/2017)
This article shall be construed in accordance with V.T.C.A., Local Government Code, chapter 284 ("the code") to the extent not in conflict with the Constitution and laws of the United States or of the State of Texas.
(Ordinance 2084, secs. I, II, adopted 8/28/2017)
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. The following definitions as found in the design manual are specifically applicable to this article:
Applicable codes
means:
(1) 
The city uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; and
(2) 
Local amendments to those codes to the extent not inconsistent with V.T.C.A., Local Government Code chapter 284.
Chapter 284
means V.T.C.A., Local Government Code, chapter 284.
City
means the City of Alamo Heights, Texas or its lawful successor.
City council
means the municipal governing body of the City of Alamo Heights, Texas.
Code
means the Texas Local Government Code.
Collocate and collocation
mean the installation, mounting, maintenance, modification, operation, or replacement of network nodes in a public right-of-way on or adjacent to a pole.
Decorative 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.
Easement
means and 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.
Federal Communications Commission or FCC
means the Federal Administrative Agency, or lawful successor, authorized to oversee cable television and other multi-channel regulation on a national level.
Highway right-of-way
means right-of-way adjacent to a state or federal highway.
Law
means common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance.
Local
means within the geographical boundaries of the city.
Location
means the city-approved and lawfully permitted location for the network node.
Mayor
means the mayor of the City of Alamo Heights, Texas, or designee.
Micro network node
means a network node that is not larger in dimension than twenty-four (24) inches in length, fifteen (15) inches in width, and twelve (12) inches in height, and that has an exterior antenna, if any, not longer than eleven (11) inches.
Municipal park
means an area that is zoned or otherwise designated by the city as a public park for the purpose of recreational activity.
Network node
means equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term:
(1) 
Includes:
a. 
Equipment associated with wireless communications;
b. 
A radio transceiver, an antenna, a battery-only backup power supply, and comparable equipment, regardless of technological configuration; and
c. 
Coaxial or fiber-optic cable that is immediately adjacent to and directly associated with a particular collocation; and
(2) 
Does not include:
a. 
An electric generator;
b. 
A pole; or
c. 
A macro tower.
Network provider
means:
(1) 
A wireless service provider; or
(2) 
A person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider:
a. 
Network nodes; or
b. 
Node support poles or any other structure that supports or is capable of supporting a network node.
Node support pole
means a pole installed by a network provider for the primary purpose of supporting a network node.
Permit
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.
Pole
means a service pole, city-owned utility pole, node support pole, or utility pole.
Private easement
means an easement or other real property right that is only for the benefit of the grantor and grantee and their successors and assigns.
Provider
has the same meaning as "network provider."
Public right-of-way
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:
(1) 
A private easement; or
(2) 
The airwaves above a public right-of-way with regard to wireless telecommunications.
Service pole
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:
(1) 
A pole that supports traffic-control functions;
(2) 
A structure for signage;
(3) 
A pole that supports lighting, other than a decorative pole; and
(4) 
A pole or similar structure owned or operated by a municipality and supporting only network nodes.
Street
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 (2) 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.
Traffic signal
means any device, whether manually, electrically, or mechanically operated, by which traffic is alternately directed to stop and to proceed.
Transport facility
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.
User
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.
Utility pole
means a pole that provides:
(1) 
Electric distribution with a voltage rating of not more than 34.5 kilovolts; or
(2) 
Services of a telecommunications provider, as defined by Utilities Code, section 51.002.
Wireless service
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.
Wireless service provider
means a person that provides wireless service to the public.
Wireless facilities
means "micro network nodes," "network nodes," and "node support poles" as defined in Local Government Code chapter 284.
(Ordinance 2084, secs. I, II, adopted 8/28/2017)
Pursuant to this article and subject to the design manual and the code, a wireless network provider has the non-exclusive 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. 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 2084, secs. I, II, adopted 8/28/2017)
A network provider shall construct and maintain network nodes and network support poles described in the code (Local Government Code chapter 284) 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 2084, secs. I, II, adopted 8/28/2017)
(a) 
Except as otherwise provided in Local Government Code chapter 284, 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 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.
(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 thirty (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 chapter.
(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 one million dollars ($1,000,000.00) in general liability coverage.
(e) 
Exception: As provided in V.T.C.A., Local Government Code section 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; 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.
Notwithstanding subsection (e) above, the network provider or its contractors shall notify the city at least twenty-four (24) hours in advance of work described in this subsection (e).
(Ordinance 2084, secs. I, II, adopted 8/28/2017)
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
(2) 
Is adjacent to a street or thoroughfare that is:
a. 
Not more than fifty (50) feet wide; and
b. 
Adjacent to single-family residential lots or other multi-family residences or undeveloped land that is designated for residential use by zoning or deed restrictions.
(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 2084, secs. I, II, adopted 8/28/2017)
(a) 
Determination of application completeness.
The city shall determine whether the permit application is complete and notify the applicant of that determination:
(1) 
For network nodes and node support poles: No later than thirty (30) days after the date the city receives the permit application.
(2) 
For a transport facility: No later than ten (10) days after the date the city receives the permit application.
(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 sixty (60) days after the date the city receives the complete application.
(2) 
For network support poles: No later than one hundred fifty (150) days after the date the city receives the complete application.
(3) 
For transport facilities: No later than twenty-one (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 thirty (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 2084, secs. I, II, adopted 8/28/2017)
A network provider shall begin installation for which a permit is granted not later than six (6) 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 2084, secs. I, II, adopted 8/28/2017)
(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 one hundred dollars ($100.00) for each network node for up to but not more than thirty (30) network nodes.
(2) 
Annual public right-of-way rate fee: The annual public right-of-way rate shall be two hundred fifty dollars ($250.00) per network node installed in the city public rights-of-way.
(3) 
Public right-of-way rate adjustment: As provided in V.T.C.A., Local Government Code section 284.054, 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.
(1) 
The application fee for each network support pole shall be one hundred dollars ($100.00).
(d) 
Transfer facilities.
(1) 
The application fee for each transfer facility shall be one hundred dollars ($100.00).
(2) 
The annual transfer facility rental rate shall be twenty-eight dollars ($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 V.T.C.A., Local Government Code chapter 283 or cable franchise fees under V.T.C.A., Utilities Code chapter 66.
(e) 
Micro network nodes.
(1) 
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.
(1) 
Subject to the city's pole service agreement, the collocation of network nodes on city service poles shall be at a rate of twenty dollars ($20.00) per year per service pole.
(g) 
City-owned municipal utility poles.
(1) 
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 V.T.C.A., Utilities Code section 54.204, 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 2084, secs. I, II, adopted 8/28/2017)
As provided in V.T.C.A., Local Government Code section 284.302, 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 2084, secs. I, II, adopted 8/28/2017)
The Design Manual for the Installation of Network Nodes and Node Support Poles ("the design manual") attached to Ordinance 2084 is approved as an addendum to this article as an integral part of the regulations adopted herein and shall be maintained by the city secretary on the city website but shall not become a part of this Code.
(Ordinance 2084, secs. I, II, adopted 8/28/2017)
The pole attachment agreement attached to Ordinance 2084 is approved as an addendum to this article as an integral part of the regulations adopted herein and shall be maintained by the city secretary on the city website but shall not become a part of this Code.
(Ordinance 2084, secs. I, II, adopted 8/28/2017)
The service pole collocation attachment license agreement attached to Ordinance 2084 is approved as an addendum to this article as an integral part of the regulations adopted herein and shall be maintained by the city secretary on the city website but shall not become a part of this Code.
(Ordinance 2084, secs. I, II, adopted 8/28/2017)