(A) Generally. This section shall be construed in accordance with Chapter 284 of the TEX. LOCAL GOV’T CODE to the extent not in conflict with the Constitution and laws of the United States or of the State of Texas. To the extent of any conflict between this section and the remainder of Chapter 157 of this code, this section controls.
(B) Definitions. For the purpose of this section, the definitions found in the City's Design Manual for the Installation of Network Nodes and Node Support Poles are hereby incorporated into this section and shall apply unless the context clearly indicates or requires a different meaning. In addition, the definitions from § 284.002 of the TEX. LOCAL GOV’T CODE are specifically incorporated into this section by reference. In addition, in this section:
CHAPTER 284. Means Chapter 284 of the Texas Local Government Code.
CITY. The City of Cleburne, Texas.
CITY COUNCIL. The governing body of the City of Cleburne, Texas.
DESIGN MANUAL. The city's Design Manual for the Installation of Network Nodes and Node Support Poles.
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. The Federal administrative agency, or lawful successor, authorized to oversee cable television and other multi-channel regulation on a national level.
MICRO NETWORK NODE. 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.
STREET. 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.
TRANSPORT FACILITY. Each transmission path physically within 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.
WIRELESS FACILITIES. Means MICRO NETWORK NODES, NETWORK NODES, and NODE SUPPORT POLES as those terms are defined in Chapter 284.
(C) Use and occupancy of public rights-of-way. Pursuant to this section and subject to the Design Manual and Chapter 284, 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 section 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.
(D) Compliance with this chapter, the Design Manual, applicable codes, and Chapter 284. All wireless network providers shall comply with the terms of this section and the remainder of Chapter 157 of this code, and are hereby included in the definition of a PUBLIC SERVICE PROVIDER for the purposes of this chapter. All wireless network providers shall also comply with applicable codes, the terms and conditions of the city's Design Manual, and Chapter 284.
(E) Permit applications.
(1) Except as otherwise provided in 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 public right-of-way.
(2) As required by Chapter 284, the city shall not require a network provider to perform services for the city for which the permit is sought.
(3) 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.
(4) The network provider shall provide the following information in its permit applications:
(a) Applicable construction and engineering drawings and information to confirm that the applicant will comply with this chapter, the city's Design Manual, Chapter 284, and applicable codes;
(b) 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 section;
(c) A certificate that the network nodes comply with applicable regulations of the Federal Communications Commission; and certification that the proposed network nodes 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.
(5) Exception. As provided in § 284.157 of Chapter 284, a network provider is not required to apply, obtain a permit, or pay a rate to the city for:
(a) Routine maintenance that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way;
(b) 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
(c) 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.
(d) The network provider or its contractors shall notify the city at least 24 hours in advance of work described in this division (5).
(F) 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 as a Design District if the district has decorative poles. The network provider shall be required to comply with the requirements described in the city's Design Manual. The city has the authority to designate new Historic Districts and Design Districts in the future.
(G) Installation in municipal 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:
(a) Not more than 50 feet wide; and
(b) 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 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.
(H) Municipal review process by the city.
(1) Determination of application completeness. The city shall determine whether the permit application is complete and notify the applicant of that determination:
(a) For network nodes and node support poles, no later than 30 days after the date the city receives the permit application; and
(b) For a transport facility, no later than ten days after the date the city receives the permit application.
(2) Approval or denial of application. The city shall approve or deny a completed application after the date it is submitted to the city:
(a) For network nodes, no later than 60 days after the date the city receives the complete application;
(b) For network support poles, no later than 150 days after the date the city receives the complete application; and
(c) For transport facilities, no later than 21 days after the city receives the complete application.
(3) 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.
(4) Resubmission of denied application. The applicant may cure the deficiencies identified in the denial application.
(a) 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.
(b) 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.
(I) 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 Director may in their sole discretion grant reasonable extensions of time as requested by the network provider.
(J) Applicable fees and rental rates to the city.
(1) As compensation for the network provider's use and occupancy of the 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.
(2) Network nodes.
(a) The application fee shall be $100 for each network node for up to but not more than 30 network nodes.
(b) The annual public right-of-way rate shall be $250 per network node installed in the city public rights-of-way.
(c) As provided in § 284.054 of Chapter 284, 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.
(3) Node support poles. The application fee for each network support pole shall be $100.
(4) Transfer facilities.
(a) The application fee for each transfer facility shall be $100.
(b) The annual transfer facility rental rate shall be $28 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 TEX. LOCAL GOV’T CODE or cable franchise fees under Chapter 66 of the TEX. UTILITIES CODE.
(5) 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.
(6) Collocation of network nodes on service poles. Subject to the city's license agreement, the collocation of network nodes on city service poles shall be at a rate of $20 per year per service pole.
(7) 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 § 54.024 of the TEX. UTILITIES CODE, applied on a per-foot basis.
(K) Indemnity. As provided in § 284.302 of Chapter 284, a 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.
(L) Effect on other utilities and telecommunication providers. Nothing in this section 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.
(Ord. 08-2017-40, passed 8-22-17)