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, ch. 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:
means:
means the City of Alamo Heights, Texas or its lawful successor.
means the municipal governing body of the City of Alamo Heights,
Texas.
means V.T.C.A., Local Government Code, ch. 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 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.
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 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 of Alamo Heights, Texas, or designee.
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.
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 (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.
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.
means "micro network nodes," "network nodes," and "node support
poles" as defined in 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 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. 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)
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.
(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 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 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 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] § 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;
(4)
Notwithstanding subdivision (d) above, the network provider or its
contractors shall notify the city at least twenty-four (24) hours
in advance of work described in this subdivision (d).
(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
(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:
(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)
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] § 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:
(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] ch. 283 or cable franchise fees under V.T.C.A., Utilities Code
ch. 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 § 54.024, 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 2084, secs. I, II, adopted 8/28/2017)
As provided in [V.T.C.A., Local Government Code] § 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)
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 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 hereto 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 hereto 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
hereto 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)
