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HomeMy WebLinkAboutPO 6929: AMENDING CHAPTER 94, SIDEWALKS, AND OTHE PUBLIC PLACES (RIGHTS-OF-WAY) P.O. NO.6929 01/11/2021 PDL PAGE 1 OF 18 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS, AMENDING CHAPTER 94. "STREETS, SIDEWALKS AND OTHER PUBLIC PLACES", BY ADDING ARTICLE IX. "NETWORK NODES IN PUBLIC RIGHTS-OF-WAY" TO REGULATE THE PHYSICAL USE, OCCUPANCY AND MAINTENANCE OF CITY RIGHTS-OF-WAY BY WIRELESS NETWORK PROVIDERS PURSUANT TO TEXAS LOCAL GOVERNMENT CODE CHAPTER 284; PROVIDING A PENALTY CLAUSE; PROVIDING A REPEALER CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Port Arthur, Texas (hereinafter referred to as the "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, the Federal Communications Commission issued a declaratory ruling, report and order, FCC WT Docket No. 17-79, dated September 26, 2018, (the "Order") adopting new rules addressing the deployment of small wireless facilities in public rights- of-way, such rules to take effect upon passage; 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 wireless facilities, described and defined in Section 284.002 of the Code as "Micro Network Nodes", "Network Nodes", and "Node Support Poles"; and, WHEREAS, as expressly allowed by Section 284.108 of the Code and pursuant to its police power authority reserved in Section 284.301 of the Code, the City has enacted a Small Wireless Facilities Design Manual ("the Design Manual") in order to meet its fiduciary duty to the citizens of the City, and to give assistance and guidance to wireless P.O. NO.6929 01/11/2021 PDL PAGE 2 OF 18 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 and Network Support Poles pursuant to Chapter 284 of the Local Government Code in a way that is fair, reasonable and nondiscriminatory; now therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS: SECTION 1. That the statements and findings set out in the preamble to this ordinance are found to be true and correct and are hereby adopted by the City Council and made a part hereof for all purposes. SECTION 2. That Chapter 94 "Streets, Sidewalks and Other Public Places" is hereby amended by adding Article IX. "Network Nodes in Public Rights-of-Way", and associated sections to read and provide as follows: "ARTICLE IX. — NETWORK NODES PUBLIC RIGHTS-OF-WAY" Sec. 94 - 521. PURPOSE a. The purpose of this article is to facilitate the use of public right-of-way for network node deployments in accordance with V.T.C.A., Local Government Code Ch. 284. b. 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; c. 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 d. Assist the City in protecting the public health, safety, and welfare. P.O.NO.6929 01/11/2021 PDL PAGE 3 OF 18 Sec. 94 - 522. GOVERNING LAW This Article shall be constructed under and in accordance with the laws of the State of Texas and the City Charter and City Code to the extent that such Charter and City Code are not in conflict with or in violation of the Constitution and laws of the United States or of the State of Texas. Sec. 94 - 523. DEFINITIONS For the purpose of this Article, the definitions found in the Small Wireless Facilities Design Manual ("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: Abandon and its derivatives means the facilities installed in the right-of-way (including by way of example but not limited to: poles, wires, conduit, manholes, handholes, cuts, network nodes and node support poles, or portion thereof) that have been left by Provider in an unused or non-functioning condition for more than 120 consecutive calendar days unless, after notice to Provider, Provider has established to the reasonable satisfaction of the City that the applicable facilities, or portion thereof, is still in active use. Antenna means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services. Applicable codes means: (A) 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 Port Arthur, Texas or its lawful successor. City Manager shall mean City Manager or designee Chapter 284 means Tex. Loc. Gov. Code, Chapter 284. 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. Concealment or Camouflaged means any Wireless Facility or Pole that is covered, blended, painted, disguised, camouflaged or otherwise concealed such that the Wireless Facility blends into the surrounding environment and is visually unobtrusive as allowed as a condition for City advance approval under Chapter 284, Sec. 284.105 in Historic or Design Districts. A Concealed or Camouflaged Wireless Facility or Pole also includes any Wireless Facility or Pole conforming to the surrounding area in which the Wireless Facility or Pole is located and may include, but is not limited to hidden beneath a façade, blended P.O. NO.6929 01/11/2021 PDL PAGE 4 OF 18 with surrounding area design, painted to match the supporting area, or disguised with artificial tree branches. 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 municipal codes. 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. Designated area means an area of the city designated as a historic district or a design district where the city may require reasonable design or concealment measures for new network nodes or new node support poles. Disaster emergency or disaster or emergency means an imminent, impending, or actual natural or humanly induced situation wherein the health, safety, or welfare of the residents of the city is threatened, and includes, but is not limited to any declaration of emergency by city state or federal governmental authorities. Distributed Antenna System or DAS shall be included as a type of "Network Node." 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. P.O. NO.6929 01/11/2021 PDL PAGE 5 OF 18 Macro tower means a guyed or self-supported pole or monopole greater than the height parameters prescribed by Chapter 284, Section 284.103 and that supports or is capable of supporting antennas. Mayor means the Mayor for the City. 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 municipal code as a public park for the purpose of recreational activity. Municipally owned utility pole means a utility pole owned or operated by a municipally owned utility and located in a public right-of-way. MUTCD means Manual of Uniform Traffic Control Devices. 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. Network provider 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. 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 a municipality before a network provider may perform an action or initiate, continue, or complete a project over which the municipality has police power authority. P.O. NO.6929 01/11/2021 PDL PAGE 6 OF 18 Pole means a service pole, municipally 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 municipality 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. Public right-of-way management ordinance means an ordinance that complies with Chapter 284, Subchapter C. Service pole means a pole, other than a municipally owned utility pole, owned or operated by a municipality 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. Small cell shall be included as a type of "Network Node." 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. 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. SWPPP shall mean Storm Water Pollution Prevention Plan. TAS means Texas Accessibility Standards. 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. P.O. NO.6929 01/11/2021 PDL PAGE 7 OF 18 Underground Requirement Area shall mean means an area where poles, overhead wires, and associated overhead or above ground structures have been removed and buried or have been approved for burial underground pursuant to municipal ordinances, zoning regulations, state law, private deed restrictions, and other public or private restrictions, that prohibit installing aboveground structures in a public right-of-way. 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," and "Node Support Poles" as defined in Texas Local Government Code Chapter 284. Sec. 94 - 524. CRIMINAL PENALTIES a. Any violation or failure to abide by, and comply with, any provision or requirement of this Ordinance shall be violation of City Ordinance, and shall be punished by a fine not to exceed $2,000.00 b. Each day upon which there exists a violation of this charter, or a failure to abide by, or comply with, any provision or requirement of this chapter, shall constitute a separate occurrence, and may subject the offender to separate criminal penalties. c. Prosecution pursuant to this section is in addition to and does not supplant other remedies. d. Prior to initiation of enforcement litigation, the User shall be given the opportunity to correct the violation within the timeframe specified by the Director. Sec. 94 - 525. CIVIL PENALTIES a. Civil penalties may be imposed for the violation of any provision of this Chapter, as follows: P.O. NO.6929 01/11/2021 PDL PAGE 8 OF 18 Up to one thousand dollars (4 1,000.00) for each violation, and each day of a continuing violation may be considered a new violation; and/or If applicable, default and revocation of any or all permits granted to allow work in the right-of-way, subject to the procedural guidelines noted in this Chapter and any agreement which applies to the right-of-way User, and further subject to any limitation imposed by federal or state law. b. In imposing the penalties and the amount, the City may weigh all applicable factors, such as damages caused by the violation, reasons for the violation, the seriousness of the violation, and all other factors. c. Monetary civil penalties may be imposed in the manner prescribed by either local or state law. d. In addition, the Director of Public Works may order specific performance of any actions required by this chapter or required by a franchise, license or permit, including the permit authorizing work to be performed in the right-of-way, or any other agreement or authorization. e. Prior to initiation of enforcement litigation, the User shall be given the opportunity to correct the violation within the timeframe specified by the Director of Public Works. Sec. 94-526. CITY ENGINEER'S AUTHORITY; ENFORCEMENT a. City Engineer's Authority (1) The City Engineer is authorized to administer, interpret, and enforce the provisions of this division and to promulgate regulations, including but not limited to, engineering, technical, and other special criteria and standards, including design standards, to aid in the administration and enforcement of this division that are not in conflict with this division, the Code of Ordinances of the City, or state or federal law. (2) Enforcement. The City Engineer is authorized to enter upon a construction site for which a permit is granted under tis division or, where necessary, upon private property adjacent to the construction site for purposes of inspection to determine compliance with the permit or this division without notice. If the inspection requires physical contact with the equipment, the City Engineer must provide written notice to the agency, network provider, or infrastructure contractor within five (5) business days of the planned inspection. Agency, network provider or infrastructure contractor may have a representative present during such inspection. P.O. NO. 6929 01/11/2021 PDL PAGE 9 OF 18 Sec. 94-527. RIGHT-OF-WAY CONSTRUCTION No person shall commence or continue with the construction, installation, maintenance or operation of facilities within the right-of-way in the City except as provided by the ordinances of the City and the directives of the City's Public Works Department. All construction activity in City right-of-way will be in accordance with this ordinance. Sec. 94-528. - USE AND OCCUPANCY OF PUBLIC RIGHTS-OF-WAY No person shall commence or continue with the construction or installation of any structure within the rights-of-way of the city except as provided by this chapter, or as provided by other city permits or written agreements with the city. 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 in conformity with this Chapter of the City Code (a) Registration required. All users of the right-of-way must register annually with the City. Registration and permits will be issued in the name of the person who will own the facilities. Registration shall include: i. The name of the user of the right-of-way; ii. The name, address, and telephone number of people who will be contact person(s) for the user; iii. The name(s) and telephone number of an emergency contact who shall be available twenty-four (24) hours a day; iv. The location, including exact coordinates, of all structures located in the rights-of-way; and v. A description of each structure located in the rights-of-way. Sec. 94-529. - COMPLIANCE WITH DESIGN MANUAL AND APPLICABLE CODES. 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. Sec. 94-530. - GENERAL CONSTRUCTION AND MAINTENANCE REQUIREMENTS. (a) 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). P.O.NO.6929 01/11/2021 PDL PAGE 10 OF 18 (b) Design Manual; Separate agreements. Facilities to which this chapter applies must conform to the specifications required by the design manual. If the city desires to attach or place electric light or power wires, communications facilities or other similar systems or facilities in or on the permit holder's facilities, then a further separate, non-contingent agreement with the permit holder shall be required. Nothing contained in this chapter shall obligate the permit holder to exercise or restrict the permit holder from exercising its right to enter voluntarily into pole attachment, pole usage, joint ownership or other wire space or facilities agreements with any person authorized to operate as a public utility or a wireless utility or authorized to offer cable service within the city. (c) Requests for temporary moves. Upon request, the permit holder shall remove or raise or lower its aerial wires, fiber or cables temporarily to permit the moving of houses or other bulky structures. The expense of such temporary rearrangements shall be paid by the party or parties requesting them, and the permit holder may require payment in advance. The permit holder shall be given not less than forty- eight (48) hours advance notice to arrange for such temporary rearrangements. (d) Tree trimming. The permit holder, its contractors and agents have the right, permission and license to trim trees upon and overhanging the rights-of-way to prevent trees from coming in contact with the permit holder's facilities and transmission media. When directed by the city, tree trimming shall be done under the supervision and direction of the city or under the supervision of the city's delegated representative. Sec. 94-531. - ADMINISTRATION. (a) Reasonable inquiries. The city may, at any time, make reasonable inquiries pertaining to the terms, conditions, rights and obligations of this chapter, and the permit holder shall respond to such inquiries on a timely basis. (b) FCC / PUC documents. Copies of petitions, applications, and reports submitted by the permit holder to the Federal Communications Commission or the Public Utility Commission of Texas shall be provided to the city upon specific request. (c) Consolidated permit application. A network provider that wants to install or collocate multiple network nodes inside the limits of the city is entitled to file a consolidated permit application with the city for not more than 30 network nodes. (d) Documents required for application. The provider shall provide the following information in its permit applications: ok if same for others (1) The name and address of the person to whom notices are to be sent, a 24- hour per day contact number for the applicant in case of emergency; (2) Location map that includes all other structures within 300 feet of the proposed location; P.O.NO.6929 01/11/2021 PDL PAGE 11 OF 18 (3) Applicable construction and engineering drawings and information to confirm that the applicant will comply with the city's design manual and applicable codes; (4) A certificate that the network node(s) complies with applicable regulations of the Federal Communications Commission; (5) 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; (6) A certificate of insurance that provides that the provider and its contractor has at least $1,000,000.00 in general liability coverage; (7) An industry standard pole load analysis certified by a licensed engineer; (8) Specific location information, including geographic positioning system coordinates; (9) A complete application and supporting documents for conditional use permit or other land use approval where required by the design manual; (10) Proof of payment of the construction permit fee and prorated rights-of-way fee for the remaining portion of the current calendar year; and (11) Any additional information reasonably related to the provider's use of the public rights-of-way to ensure compliance with the design manual and this chapter. (e) 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 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. (f) 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 manager 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. (g) 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 manager denies the application. (h) Resubmission of Denied Application. The permit holder may cure the deficiencies identified in the denial application. P.O. NO.6929 01/11/2021 PDL PAGE 12 OF 18 i. The permit holder 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. ii. The city shall approve or deny the revised completed application after a denial not later than the 90th day after the city manager receives the revised completed application. The city's review shall be limited to the deficiencies cited in the denial documentation. (i) 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 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 24 hours in advance of work described in this Subdivision (d). Sec. 94-532. - INSTALLATION IN HISTORIC DISTRICTS OR DESIGN DISRICTS A network provider must obtain advance written consent from the. City Manager 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 as described by the City. The City has the authority to designate new historic districts and design districts at a future date. Sec. 94-533. - 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 Manager'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 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. P.O. NO. 6929 01/11/2021 PDL PAGE 13 OF 18 (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 by the City. Sec. 94-534. - 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. Sec. 94-535. - RELOCATION AND REMOVAL OF FACILITIES (a) Street widening or straightening. In accordance with V.T.C.A., Utilities Code § 54.203(c), upon thirty (30) days' notice by the city, permit holder shall begin relocation of its facilities within the rights-of-way at its own expense to permit the widening or straightening of streets. The notice by the city shall include a specification of the new location for the permit holder's facilities along the rights-of-way. (b) City's right to relocate. The city retains the right to move any facilities within the rights- of-way to cure or otherwise address a public health or safety emergency. The city shall cooperate to the extent possible with the permit holder in such instances to assure continuity of service and to afford to the permit holder the opportunity to make such relocation itself. (c) Expense and timelines for relocation. Except as otherwise provided in existing state and federal law, upon notice from the city, a network provider shall relocate or adjust network nodes in a public right-of-way in a timely manner and without cost to the municipality managing the public right-of-way. Sec. 94-536. - APPLICABLE FEES AND RENTAL RATES TO THE CITY. (A)Construction Permits and Rights of Way Fees: (1) Construction permit fee. The applicant shall pay to the city a construction permit fee that is calculated as of the date of application for permit by applying the appropriate permit fee to each of the facilities included in the application, in accordance with the city's design manual, not to exceed the values provided in the table below. (2) Rights-of-way fees. The permit holder shall pay to the city a rights-of-way fee that is calculated as of month-end for access lines and as of year-end for all other facilities by applying the appropriate fee to each facility type owned, placed, or maintained by the permit holder. The rights-of-way fee P.O. NO. 6929 01/11/2021 PDL PAGE 14 OF 18 for access lines shall be as proscribed by the Texas Public Utilities Commission. Rights-of-way fees for all facilities other than access lines shall be prorated for the first year in which a construction permit fee is paid, and shall be paid at the time of the permit application. (B)Network Nodes: (1) Construction Permit Fee: The construction permit fee shall be $500.00 for the first five nodes, $250 for each additional node, not to exceed thirty nodes in a consolidated permit. (2) Annual Public Right-of-Way Rate Fee: The annual public right-of-way rate shall be $250 per network node site 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). 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. (4) Collocated network nodes on city service poles shall also pay an annual collocation fee at a rate not greater than $20 per year per service pole. (C)Node Support Poles: (1) Construction Permit Fee: The construction permit fee for each Node Support Pole shall be $1000.00. (2) Annual Public Right-of-Way Adjusted Rate Fee: The annual public right- of-way rate shall be $250 per pole installed in the City public rights-of-way. (3) Public Right-of-Way Rate Fee As provided in Section 284.054 of the Code, this amount will be adjusted by an amount equal to one-half the annual change, if any, in the consumer price index. 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. (D)Transport Facilities: (1) Construction Permit Fee: The construction permit fee for Transport Facilities shall be $500 for the first five nodes and $250 for each additional node. (2) Annual Public Right-of-Way Rate Fee: The annual public right-of-way rate fee for transport facilities shall be $28 per month per node. (3) Public Right-of-Way Fee As provided in Section 284.054 of the Code, this amount will be adjusted by an amount equal to one-half the annual change, if any, in the consumer price index. The city shall provide written notice to P.O.NO.6929 01/11/2021 PDL PAGE 15 OF 18 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 (4) However, no fee 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, the collocation of network nodes on City service poles shall be at a rate of$20.00 per year per service pole. (G) City-Owned Municipal Utility Poles: (1) A network provider shall pay an annual pole attachment fee 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. Sec. 94-537. - INDEMNITY. The permit holder shall indemnify and hold the city harmless from all costs, expenses, and damages to persons or property arising directly or indirectly from the construction, maintenance, repair, or operation of the permit holder's facilities located within the rights- of-way found to be caused solely by the negligence of the permit holder. Expenses shall include any reasonable and necessary attorney's fees and court costs. The city shall give the permit holder prompt written notice of any claim for which the city seeks indemnification. The permit holder shall have the right to investigate, defend and compromise any such claim. This provision is not intended to create a cause of action or liability for the benefit of third parties, but rather this provision is solely for the benefit of the city. P.O. NO. 6929 01/11/2021 PDL PAGE 16 OF 18 Sec. 94-538. - FUTURE CONTINGENCY. In the event this chapter or any tariff or other provision that authorizes permit holders to recover the fee provided for in this chapter, becomes unlawful or is declared or determined by a judicial or administrative authority exercising its jurisdiction to be excessive, unenforceable, void, or illegal, in whole or in part, then the city and all permit holders shall negotiate a new compensation arrangement that is in compliance with the authority's decision. Sec. 94-539. - 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. Sec. 94-540. - CONFLICTS WITH OTHER REQUIREMENTS. Where this Article conflicts with any other provision of the City Code of Ordinances, this Article shall control." SECTION 3. The document attached to this Ordinance as Exhibit A entitled Small Wireless Facilities Design Manual ("the Design Manual"), pursuant to Texas Local government Code, Chapter 284, is hereby adopted herein by reference for all purposes. SECTION 4. That any person, firm, or corporation violating any of the provisions or terms of this Ordinance shall be guilty of a misdemeanor and upon conviction, shall be fined a sum not to exceed $2,000.00 for each offense, and each and every violation or day such violation shall continue or exist, shall be deemed a separate offense. SECTION 5. That all provisions of the Code of Ordinances for the City of Port Arthur, Texas, codified or uncodified, in conflict with the provision of this Ordinance are hereby repealed, and all other provisions of the Code of Ordinances of the City of Port Arthur, Texas, codified or uncodified, not in conflict with this Ordinance shall remain in full force and effect. P.O. NO.6929 01/11/2021 PDL PAGE 17 OF 18 SECTION 6. That this Ordinance shall become effective immediately upon its passage and publications as required by law. READ, ADOPTED, AND APPROVED this day of February A.D. 2021, at a Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor: Council members: Noes: Thurman Bill Bartie, Mayor ATTEST: Sherri Bellard, TRMC, City Secretary APPROVED AS TO FORM: )611X&A- Valecia I Tizeno, ity Attorney APPROVED FOR ADMINISTRATION: Ronald "Ron" Burton, City Manager Alberto Elefano, Director of Public Works P.O. NO. 6929 01/11/2021 PDL PAGE 18 OF 18 Exhibit "A" "Small Wireless Facilities Design Manual" City of Port Arthur, TX Installation of Network Nodes and Node Support Poles Tex. Loc. Gov. Code, Chapter 284