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17-D-32 - Regulating the Physical use, occupancy, maintenance of City Right of ways by wireless network providersORDINANCE NO. 17 — D — 32 A PUBLIC RIGHT -OF -WAY MANAGEMENT ORDINANCE BY THE CITY OF SCHERTZ, TEXAS; REGULATING THE PHYSICAL USE, OCCUPANCY AND MAINTENANCE OF CITY RIGHTS -OF -WAY BY WIRELESS NETWORK PROVIDERS; DESCRIBING THE PURPOSE; PROVIDING DEFINITIONS; REQUIRING COMPLIANCE WITH THE CITY DESIGN MANUAL AND APPLICABLE CODES FOR THE INSTALLATION OF NETWORK NODES AND NODE SUPPORT POLES PURSUANT TO CHAPTER 284 OF THE TEXAS LOCAL GOVERNMENT CODE; PROVIDING CITY PROCEDURES FOR APPLICATIONS FOR PERMITS; ESTABLISHING TIME PERIODS FOR APPROVAL OF PERMIT APPLICATIONS; PROVIDING APPLICATION FEES AND ANNUAL PUBLIC RIGHT -OF -WAY RENTAL RATES; PROVIDING RESTRICTIONS ON PLACEMENT OF NETWORK NODES AND NODE SUPPORT POLES AND TRANSPORT FACILITIES IN MUNICIPAL PARKS, RESIDENTIAL AREAS, HISTORIC DISTRICTS AND DESIGN DISTRICTS; PROVIDING INDEMNITY FOR THE CITY; PROVIDING REPEALING AND SAVINGS CLAUSES; PROVING A TEXAS OPEN MEETINGS ACT CLAUSE; DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE OF SEPTEMBER 1, 2017. WHEREAS, the City of Schertz, Texas ( "City ") recognizes that the State of Texas has delegated to the City the fiduciary duty, as a trustee, to manage the public right -of -way for the health, safety, and welfare of the public to Texas municipalities; and WHEREAS, Chapter 284 of the Texas Local Government Code ( "the Code ") allows certain wireless network providers to install in the City's public rights -of -way their wireless facilities, described and defined in Section 284.002 of the Code as "Micro Network Nodes ", "Network Nodes ", "Node Support Poles ", and "Transport Facilities "; and WHEREAS, as expressly allowed by Section 284.108 of the Code and pursuant to its police power authority reserved in Sec. 284.301 of the Code, the City has enacted a Design Manual for the Installation of Network Nodes, Node Support Poles and Transport Facilities ( "the Design Manual ") in order to meet its fiduciary duty to the citizens of the City, and to give assistance and 1 guidance to wireless telecommunications network providers to assist such companies in the timely, efficient, safe and aesthetically pleasing installation of technologically competitive equipment; and WHEREAS, the City Council desires to regulate the installation of Network Nodes, Network Support Poles and Transport Facilities pursuant to Chapter 284 of the Code in a way that is fair, reasonable and nondiscriminatory. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL FOR THE CITY OF SCHERTZ, TEXAS THAT: SECTION I FINDINGS OF FACT The forgoing recitals are incorporated into this Right -of -Way Management Ordinance as findings of fact. SECTION II. USE OF PUBLIC RIGHTS -OF -WAY The City hereby adopts the provisions set forth the in the attached Exhibit A, governing the use of the public right of way by wireless network providers. SECTION III. REPEALING ALL ORDINANCES IN CONFLICT All other ordinances or parts of ordinances inconsistent or in conflict herewith, or to the extent of such inconsistency or conflict are hereby repealed. SECTION IV. SAVINGS CLAUSE This City Council of the City of Schertz, Texas does hereby declare that if any section, subsection, paragraph, sentence, clause, phrase, work or portion of this Ordinance is declared invalid, or unconstitutional, by a court of competent jurisdiction, that, in such event that it would have passed and ordained any and all remaining portions of this Ordinance without the inclusion 4 of that portion or portions which may be so found to be unconstitutional or invalid, and declare that its intent is to make no portion of this Ordinance dependent upon the validity of any portion thereof, and that all said remaining portions shall continue in full force and effect. SECTION V. COMPLIANCE WITH OPEN MEETINGS ACT It is hereby officially found and determined that the meeting at which this Ordinance was considered was open to the public as required and that public notice of the time, place and purpose of said meeting was given as required by the Open Meetings Act, Chapter 551 of the Texas Government Code. SECTION VI. DECLARATION OF AN EMERGENCY It is hereby officially found and determined that, pursuant to the authority given the City Council under Section 4.09(e) of the Charter of the City of Schertz, an emergency exists requiring this ordinance to be voted upon and rejected or passed at the meeting at which it was first introduced. SECTION VII. EFFECTIVE DATE. This Ordinance shall become effective on September 1, 2017. PASSED AND APPROVED ON THIS THE 29t' DAY OF AUGUST 2017. R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (SEAL OF THE CITY) EXHIBIT A USE OF PUBLIC RIGHTS -OF -WAY § 1.01 PURPOSE. The purpose of this chapter is to: (A) 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; (B) 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 (C) Assist the City in protecting the public health, safety, and welfare. § 1.02 GOVERNING LAW. This chapter 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. § 1.03 DEFINITIONS. For the purpose of this chapter, the definitions found in the City Design Manual for the Installation of Network Nodes, Node Support Poles, and Transport Facilities ( "the Design Manual ") are hereby incorporated into this chapter 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 chapter: Applicable codes means: (A) the City uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; and (B) local amendments to those codes to the extent not inconsistent with Chapter 284. City means the City of Schertz, Texas. City Council means the municipal governing body of the City of Schertz, Texas. 4 City Manager means the Manager or his/her designee for the City of Schertz, Texas. Chapter 284 means Texas Local Government Code, Chapter 284. 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. Design District means 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. 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. Historic district means an area that is zoned or otherwise designated as a historic district under municipal, state, or federal law. 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 Schertz, Texas, or designee. Micro network node 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. 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: (A) includes: (i) equipment associated with wireless communications; (ii) a radio transceiver, an antenna, a battery -only backup power supply, and comparable equipment, regardless of technological configuration; and (iii) coaxial or fiber -optic cable that is immediately adjacent to and directly associated with a particular collocation; and (B) does not include: (i) an electric generator; (ii) a pole; or (iii) a macro tower Networkprovider means: (A) a wireless service provider; or (B) 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: (i) Network Nodes; or (ii) Node Support Poles or any other structure that supports or is capable of supporting a network node; or (iii) Transport Facilities 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: (A) a private easement; or (B) 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: (A) a pole that supports traffic control functions; (B) a structure for signage; (C) a pole that supports lighting, other than a decorative pole; and (D) 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 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 facil ity 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: (A) electric distribution with a voltage rating of not more than 34.5 kilovolts; or (B) services of a telecommunications provider, as defined by Chapter 284, Section 51.002, Utilities Code. 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 mean "Micro Network Nodes ", "Network Nodes ", "Node Support Poles ", and "Transport Facilities" as defined in Texas Local Government Code, Chapter 284. § 1.04 USE AND OCCUPANCY OF PUBLIC RIGHTS -OF -WAY. Pursuant to this chapter 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 chapter 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. § 1.05 COMPLIANCE WITH DESIGN MANUAL AND APPLICABLE CODES. 7 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. § 1.06 GENERAL CONSTRUCTION AND MAINTENANCE REQUIREMENTS. A network provider shall construct and maintain Network Nodes, Network Support Poles and Transport Facilities described in the Code in a manner that does not: (A) Obstruct, impede, or hinder the usual travel or public safety on a public right -of -way; (B) Obstruct the legal use of a public right -of -way by other utility providers; (C) Violate nondiscriminatory applicable codes; (D) Violate or conflict with the City's publicly disclosed public right -of -way design specifications; or (E) Violate the federal Americans with Disabilities Act of 1990 (ADA). § 1.07 PERMIT APPLICATIONS. (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 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 601h 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, recreational trails 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, recreational trails 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 (E) above, the network provider or its contractors shall notify the City at least 24 hours in advance of work described in this Subdivision (E). § 1.08 INSTALLATION IN HISTORIC DISTRICTS OR DESIGN DISTRICTS 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 an area that has been designated 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. § 1.09 INSTALLATION IN 1VIUNICIPAL PARKS AND RESIDENTIAL AREAS 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: i. Not more than 50 feet wide; and V7 ii. Adjacent to single - family residential lots or other multifamily 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, Node Support Pole or Transport Facilities 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. § 1.10 MUNICIPAL REVIEW PROCESS BY THE CTIY. (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 Note Support Poles: no later than 30 days after the date the City receives the permit application. (2) For a Transport Facility: no later than 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 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, the City 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. 10 (D) Resubmission of Denied Application: The applicant may cure the deficiencies identified in the denied 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. § 1.11 TIME OF INSTALLATION. 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. § 1.12 APPLICABLE FEES AND RENTAL RATES TO THE CITY. (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 in the City's Fee Schedule, which shall not 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) The City Fee Schedule shall list rates for the following: a. Network Nodes: (1) Application Fee: The application fee shall be for each Network Node for up to but not more than 30 Network Nodes. The fee shall encompass up to five (5) nodes with an additional fee for each node after that on the same application. 11 (2) Annual Public Right -of -Way Rate Fee: The annual public right -of -way shall be 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) for All Urban Consumers for Texas. 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 a Network Support Pole shall be a separate fee per pole (D) Transport Facilities: (1) An application fee shall be paid for each Transport Facility. (2) The may be assessed a monthly Transport Facility rental rate 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: (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, there shall be a fee assessed per year per pole for collocation of Network Nodes on City service poles. (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 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. 12 § 1.13 INDEMNITY. 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. § 1.14 EFFECT ON OTHER UTILITIES AND TELECOMMUNICATION PROVIDERS. Nothing in this Ordinance 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. 13