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HomeMy WebLinkAboutPACKET AUG 28 2017 - SPECIAL MEETINGBEAUMONT TEXAS SPECIAL MEETING OF THE CITY COUNCIL COUNCIL CHAMBERS AUGUST 28, 2017 4:00 P.M. AGENDA CALL TO ORDER * Invocation Pledge Roll Call * Public Comment: Persons may speak on scheduled agenda items 1 and 2 GENERAL BUSINESS 1. Consider an ordinance adopting a new Division 4, Right -of -Way Management Regulations, of Chapter 14 of the Code of Ordinances, regulating the location of small cell network nodes in the public rights-of-way 2. Consider approving a Design Manual and a Pole Attachment Agreement regulating the installation of network nodes and node support facilities on City service and utility poles WORK SESSION * City Council discussion regarding the statue located at Wiess Park COMMENTS * Public Comment (Persons are limited to 3 minutes) * Couucilmembers/City Manager comment on various matters Persons with disabilities who plan to attend this meeting and who may need auxiliary aids. or services are requested to contact Kaltrina Harbuzi at 880-3777. 1 August 28, 2017 Consider an ordinance adopting a new Division 4, Right -of -Way Management Regulations, of Chapter 14 of the Code of Ordinances, regulating the location of small cell network nodes in the public rights-of-way BEAUMONT TEXAS TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tyrone E. Cooper, City Attorney MEETING DATE: August 28, 2017 REQUESTED ACTION: Council consider an ordinance adopting a new Division 4, Right - of -Way Management Regulations, of Chapter 14 of the Code of Ordinances, regulating the location of small cell network nodes in the public rights-of-way. BACKGROUND The 85h Legislature, sitting in regular session, passed Senate Bill 1004 enacting a new Chapter 284 of the Texas Local Government Code. The legislation, in general, grants wireless network providers access to public rights-of-way to install small cell network nodes to poles and structures in the public right-of-way. The effective date of this legislation is September 1, 2017. The State has delegated to each municipality the fiduciary responsibility to manage the public right-of-way for the health, safety and welfare of the public. In order to do so, in light of this new legislation, the City needs to have right-of-way management regulations and design criteria adopted prior to the effective date of the legislation. This ordinance proposes the adoption of a new division of Chapter 14 to the Code of Ordinances implementing right-of-way management regulations. FUNDING SOURCE Not applicable. RECOMMENDATION Approval of ordinance. ORDINANCE NO. ENTITLED AN ORDINANCE ADOPTING A NEW CHAPTER 14, ARTICLE 14.03, DIVISION 4, RIGHT-OF-WAY MANAGEMENT REGULATIONS, TO CONFORM TO NEW STATE LEGISLATION FOR SMALL CELL TECHNOLOGY AND OTHER MINOR CHANGES, AND PROVIDING A REPEALER CLAUSE, A SEVERABILITY CLAUSE, A SAVINGS CLAUSE, A PENALTY CLAUSE, A PUBLICATION CLAUSE AND AN EFFECTIVE DATE. WHEREAS, the Texas State Legislature has elected S.B. No. 1004 relating to the deployment of network nodes in public right-of-way and has amended Subtitle A, Title 9, Local Government Code by adding Chapter 284, to take effect on September 1, 2017; and WHEREAS, the state has delegated to each municipality the fiduciary duty, as a trustee, to manage the public right-of-way for the health, safety, and welfare of the public, subject to state law; and WHEREAS, municipalities retain the authority to manage the public right-of-way to ensure the health, safety, and welfare of the public; and WHEREAS, it is the policy of the state that municipalities receive from network providers fair and reasonable compensation for the use of public right-of-way and for collocation on poles; and WHEREAS, the City of Beaumont reasonably anticipates that the actual and direct cost of processing permit applications for network providers will exceed $500 per application covering up to five network nodes, $250 for each additional network node per application, and $1000 per application for each pole, however, city staff will review costs as the process is undertaken and will determine the actual and direct costs based upon actual experience and revise application fees if required; and Page 1 of 46 WHEREAS, upon full review and consideration of all matters related and attendant thereto, the City Council is of the opinion that Article 14.03, Division 4, Right - of -Way Management Regulations, should be adopted as provided herein. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT, TEXAS, THAT: Section 1. Article 14.03, Division 4, Right -of -Way Management Regulations, of Chapter 14, Streets and Sidewalks, of the City of Beaumont Code of Ordinances, is adopted to read as follows: "DIVISION 4. RIGHT-OF-WAY MANAGEMENT REGULATIONS. Sec. 14.03.190 Title. This article shall be known and cited as the Right -of -Way Management Ordinance for the City of Beaumont, Texas. Sec. 14.03.191 Construction; governing law; venue. This article shall be construed 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 the State of Texas. All obligations of the parties hereunder are performable in Jefferson County, Texas. Sec. 14.03.192 Scope. This article shall be effective within the geographical limits of the city, including any areas subsequently annexed by the city. Page 2 of 46 Sec. 14.03.193. Purpose; objectives; applicability. (a) Purpose. This article provides principles and procedures for the placement of structures and facilities, construction, excavation, encroachments, and work activities within or upon any public right-of-way and to protect the integrity of the road and city utility system. To achieve these purposes, it is necessary to require permits of private users of the public rights-of-way, except as prohibited by law, and to establish permit procedures, rules; and regulations for work done within or upon the public rights-of-way. (b) Objectives. Public and private uses of public rights-of-way for location of facilities employed in the provision of public services should, in the interests of the general welfare, be accommodated; however, the City of Beaumont must insure that the primary purpose of the rights-of-way, safe passage of pedestrian and vehicular traffic, is maintained to the greatest extent possible. In addition, the value of other public and private installations, roadways, the city utility system, facilities and properties should be protected, competing uses must be reconciled, and the public safety preserved. The use of the public rights-of-way by persons, agencies, network providers, and public infrastructure contractors is secondary to these public objectives and the movement of traffic. This article is intended to strike a balance between the public need for efficient, safe transportation routes and the use of public rights-of-way for location of facilities by public and private entities. The article thus has several objectives: (1) To insure that the public safety is maintained and that public inconvenience is minimized. (2) To protect the city's infrastructure investment by establishing repair standards for the pavement, facilities, and property in the public rights-of-way when work is accomplished. (3) To facilitate work within the public rights-of-way through the standardization of regulations. (4) To maintain an efficient permit process. (5) To conserve and fairly apportion the limited physical capacity of the public rights-of-way held in public trust by the city. (6) To establish a public policy for enabling the city to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition, and technological development. (7) To promote cooperation among the agencies, network providers, and public infrastructure contractors (as defined herein) and the city in the occupation of the public rights-of-way, and work therein, in order to (i) eliminate duplication that is wasteful, unnecessary or unsightly, (ii) lower the agencies', network Page 3 of 46 provider's, public infrastructure contractors' and the city's costs of providing services to the public, and (iii) preserve the physical integrity of the streets and highways by minimizing street cuts. (8) To assure that the city can continue to fairly and responsibly protect the public health, safety, and welfare. (c) Applicability. (1) The requirements of this article apply to all persons, agencies, network providers, and public infrastructure contractors that place structures and facilities or that conduct construction, excavation, encroachments, and work activities within or upon any public rights-of-way except: a. Persons, agencies, or public infrastructure contractors providing service drops for single-family and two-family residence -zoned properties on private property. All permits for these properties will be issued through the city's building inspection department. b. New residential service connections which are permitted through the building inspection department of the City of Beaumont as provided in section 14.03.201(a)(5) below. (2) Any permit issued prior to August 28, 2017 will remain subject to the terms and conditions of city ordinances and requirements in effect at the time of issuance of the permit and is not affected by this article, except that, upon expiration or conclusion of the permit, a new or renewal permit must be obtained in accordance with this article. Sec. 14.03.194 Definitions. Agency means any person (including franchised or licensed person) or certificated telecommunications provider operating in the right-of-way under a franchise agreement. "Agency" includes all contractors and sub -contractors hired or retained to do construction for an Agency. Backfill means the restoration of excavated material. Camouflage means a design mounting structure that conceals the presence of antennas, network nodes or support structures, examples include but are not limited to a clock tower, bell tower, steeple, manmade tree appropriate to the area, or light pole. Certificated telecommunications provider (CTP) means a person who has been issued a certificate of convenience and necessity, certificate of operating authority, or service provider certificate of operating authority by the Public Utility Commission to offer local exchange telephone service. A CTP does not include a network provider, as defined herein. Page 4 of 46 City means the City of Beaumont, Texas. As used throughout, the term city also includes the designated agent of the city. City engineer means the city engineer of the City of Beaumont. City manager means the city manager of the City of Beaumont. Closure means a complete or partial closing of one or more lanes of traffic of a major thoroughfare and the complete closure of any other type street. Compaction means ninety-five (95) percent of maximum density with a moisture content of -2 percent to +4 percent of optimum under paved surfaces and ninety (90) percent of maximum density with a moisture content of -2 percent to +4 percent of optimum outside of paved surfaces. Construction means excavation, installation of facilities, boring or jacking of utilities, restoration of pavement cuts, or other work by an agency or public infrastructure contractor in a public right-of-way. Consumer price index means the annual revised Consumer Price Index for All Urban Consumers for Texas, as published by the federal Bureau of Labor Statistics or other publication as authorized by state law. Design Manual means the City of Beaumont Design Manual for Agency, Network Providers and Infrastructure Contractors. Duct or conduit means a single enclosed raceway for cables, fiber optics, or other wires. "Duct" or "conduit" shall not include the maintenance duct associated with a conduit that is reserved for use in replacing damaged cable or for rerouting purposes. Emergency means any event that may threaten public health or safety, including, but not limited to, damaged or leaking water or gas conduit systems, damaged, plugged, or leaking sewer or storm drain conduit systems, damaged facilities, downed aerial facilities, or service outages whether to one customer or an area of the city. Erosion control means compliance with the City of Beaumont Erosion and Sediment Control Manual, as amended. Excavate or excavation means to dig into or in any way remove or penetrate any part of a public right-of-way. Facilities means the plant, equipment, and property, including, but not limited to, lines, transport service, poles, mains, pipes, conduits, ducts, cables and wires located under, on or above the surface of the ground within the public right-of-way and valves, and related facilities and equipment used or useful for the provision of utility services, wireless or network services, or communications services to the public.. Page 5 of 46 Local exchange telephone service means telecommunications service provided within an exchange to establish connections between customer premises within the exchange, including connections between a customer premises and a long distance provider serving the exchange. The term includes tone dialing service, service connection charges, and directory assistance services offered in connection with basic local telecommunications service and interconnection with other service providers. The terms does not include the following services, whether offered on an intra -exchange or inter -exchange basis: (1) Central office based PBX -type services for system of seventy-five (75) stations or more; (2) Billing and collection services; (3) High-speed private line services of 1.544 megabits or greater; (4) Customized services; (5) Private line or virtual private line services; (6) Resold or shared local exchange telephone services if permitted by tariff; (7) Dark fiber services; (8) Non -voice data transmission service offered as a separate service and not as a component of basic local telecommunications service; (9) Dedicated or virtually dedicated access services; or (10)Any other service the Public Utility Commission determines is not a "local exchange telephone service." Major thoroughfare means any roadway, Secondary Arterial or greater as shown on the City of Beaumont's Major Street and Highway Plan, as amended. 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 collation; 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. Page 6 of 46 Node support pole means a pole installed by a network provider for the primary purpose of supporting a network node. Pavement cut means a cut made into the paved surface of a public street, alley, curb, sidewalk, or public easement. Pole means a service pole, municipally owned utility pole, node support pole, or utility pole. Person means a natural person (an individual), corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company or association, and other such entity who owns or controls facilities. Public infrastructure contractor means a person hired or retained to do construction of facilities that will be maintained by the city. "Public infrastructure contractor" includes all sub -contractors. Public rights) -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 Residential service connections means a connection to private property from the right-of-way for individual residential service. Service pole means a pole, other than a municipally -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 the city and supporting only network nodes. Small cell shall be included as a type of "Network Node." Stealth shall mean a method that hides or conceals an antenna, supporting electrical or mechanical equipment or any other support structure, including network nodes. Thoroughfare means any public traffic artery, major street, secondary street or alley. 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 Section 51.002, Utilities Code. Page 7 of 46 Wireless service means any service, using licensed or unlicensed wireless spectrum, including the use of Wi-Fi, whether at 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. Sec. 14.03.195 Police powers. An agency's, network provider's, or public infrastructure contractor's rights hereunder are subject to the police power of the City of Beaumont which include the power to adopt and enforce ordinances, including amendments to this article, necessary for the safety, health, and welfare of the public. Agencies, network providers, and public infrastructure contractors shall comply with all applicable laws and ordinances enacted, or hereafter enacted, by the City of Beaumont or any other legally constituted governmental unit having lawful jurisdiction over the subject matter hereof. The City of Beaumont reserves the right to exercise its police powers, notwithstanding anything in this article or a permit to the contrary. Any conflict between the provisions of this article or a permit and any other present or future lawful exercise of the city's police powers shall be resolved in favor of the latter. Sec. 14.03.196 City engineer's authority; enforcement; violations. (a) City engineer's authority. (1) The city engineer is authorized to administer, interpret, and enforce the provisions of this article 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 article that are not in conflict with this article, 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 this article or, where necessary, upon private property adjacent to the construction site for purposes of inspection to determine compliance with the permit or this ordinance 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 business days of the planned inspection. Agency, network provider or infrastructure contractor may have a representative present during such inspection. (3) Design Manual. The city engineer is authorized to amend the Design Manual for Agency, Network Providers and Infrastructure Contractors . Page 8 of 46 (b) Violations. A person, agency, or public infrastructure contractor commits an offense if he. - (1) e: (1) Performs, authorizes, directs, or supervises construction without a valid permit issued under this article; (2) Violates any provision of this article. (3) Fails to comply with restrictions or requirements of a permit issued pursuant to this article; or (4) Fails to comply with an order or regulation of the city engineer issued pursuant to this article. (c) This article may be enforced by civil court action in accordance with state or federal law, in addition to any other remedies, civil or criminal, the city has for violation of this article. (d) Prior to initiation of civil enforcement litigation, a person, agency, network provider, or public infrastructure contractor who has violated a provision of this article must be given the opportunity to correct the violation within the timeframe specified by the city engineer. This section does not prohibit the city engineer or the city from taking enforcement action as to past or present violations of this article, notwithstanding their correction. Sec. 14.03.197 Penalties. (a) Any violation of the following provisions or terms of this ordinance by any person, firm, corporation, agency, network provider, or public infrastructure contractor: section 14.03.206(f), excavation safety, section 14.03.207, no directional boring zones, and section 14.03.209(c), deposit of dirt and material on roadways, of this article shall be a misdemeanor offense and shall be subject to a fine in accordance with Section 1.01.009 of the City Code of Ordinances for each offense. Every day a violation continues shall constitute a separate offense. (b) Any violation of the other provisions or terms of this ordinance by any person, firm, corporation, agency, network provider, or public infrastructure contractor shall be a misdemeanor offense and shall be subject to a fine in accordance with Section 1.01.009 of the City Code of Ordinances for each offense. Every day a violation continues shall constitute a separate offense. Page 9 of 46 Sec. 14.03.198 Registration and Annual Rates. (a) In order to protect the public health, safety and welfare, all agencies, network providers, and public infrastructure contractors placing facilities or engaging in construction, excavation, encroachments, and work activities within or upon any public right-of-way must register with the City of Beaumont. Registration must be renewed annually on or before January 31. Annual renewal is required to allow the City to contact the current owners of facilities when emergencies arise and to coordinate infrastructure in the right-of-way. The registration form to be used may be obtained from the engineering department. If a registration is not renewed, and subject to sixty (60) days notification to the agency, all facilities owned by agency within the city will be deemed to have been abandoned and shall become the property of the city. When any information provided for the registration changes, the agency or public infrastructure contractor shall notify the City of Beaumont of the change no more than thirty (30) days after the date the change is made. Registration shall include: (1) The name, address, and telephone number(s) of the owner of the facilities to be located in the public rights-of-way, including the business name, assumed name, or trade name under which the agency operates or under which it has operated within the past five (5) years. In the case of a public infrastructure contractor, the name, address, and telephone number(s) of the public infrastructure contractor and the name, address, and telephone number(s) of the developer for whom the public infrastructure contractor is working. (2) The name(s), address(es) and telephone number(s) of the person(s) who will be contact person(s) for the owner. (3) The name(s), address(es) and telephone number(s) of any contractor(s) or subcontractor(s) who will be working in the public rights-of-way on behalf of the owner.(4) The name and telephone number(s) of an emergency contact for the owner who shall be available twenty-four (24) hours a day. (4) The name(s), address(es) and telephone number(s) of the person(s) who will .be attending the utility coordination meetings for the owner. (5) The name(s), address(es) and telephone number(s) of the person(s) who will be receiving plans of city construction projects on behalf of the owner. (6) The name, address, and telephone number(s) of the person who will be responsible for receiving notification of abandonment issues on behalf of the owner. Page 10 of 46 (7) Proof of insurance as required by section 19-69 below. (8) For agencies that are certificated telecommunications providers, a copy of the notice of approval issued by the Public Utility Commission of Texas that grants the certificated telecommunications provider a service provider certificate of operating authority (SPCOA) or certificate of convenience and necessity (CCN). (9) The ordinance number of any franchise or license, if any, issued by the City of Beaumont that authorizes the owner to use the public rights-of-way. (b) Registration shall be a prerequisite to issuance of a permit. Each agency, network provider, and public infrastructure contractor shall update and keep current its registration with the city at all times. (c) A public right-of-way rate for use of the public right-of-way is assessed to all owners of network nodes in an annual amount equal to $250 multiplied by the number of network nodes installed in the public right-of-way within the city's boundaries. The rate shall be adjusted annually by an amount equal to one-half of the annual change in the consumer price index, and such rate shall take effect on or after sixty days following notice to all registered owners of network node facilities of the new rate. (d) A network provider must pay a monthly public right-of-way rate for transport facilities in an amount equal to $28 multiplied by the number of the network provider's network nodes located in the public right-of-way for which the installed transport facilities provide backhaul unless or until the time the network provider's payment of municipal fees to the municipality exceeds its monthly aggregate per -node compensation. (e) A network provider may file a consolidated permit application for not more than thirty network nodes. Sec. 14.03.199 Plans of record. (a) Any agency or network provider with facilities in the public rights-of-way shall submit plans of record in accordance with the following requirements: (1) A City Street Map marked in such a manner as to evidence which arterial and above thoroughfares along which the agency or network provider has placed facilities (not including boxes and other appurtenances) shall serve as the plans of record for the agency. The address or GPS coordinates must be included for any pole or equipment collocated on a pole. The City Street Map will be made available in a digital format upon request to the city engineer. Page 11 of 46 (2) On or before January 31 of each calendar year following the initial submittal of its plans of record, an agency or network provider shall provide to the city engineer plans of record that show all installations of new facilities, and all changes, additions, abandonments, and relocations relating to existing facilities completed in the previous calendar year, including the address or GPS coordinates for such facilities. (b) Plans of record shall not include information that is a trade secret or other confidential information protected from disclosure by state law. Information marked "proprietary" or "confidential" will not be accepted by the city. Location information is not a trade secret or proprietary/confidential information, and this subsection may not be construed to authorize an agency or network provider to fail to provide location information. Sec. 14.03.200 Right -of -Way Permit required. (a) Permit Required. Any agency, network provider, or public infrastructure contractor seeking to place facilities on, in or over a public right-of-way or to engage in construction, excavation, encroachments, and work activities within or upon any public right-of-way shall first file an application for a right-of-way permit with the city and shall abide by the terms and provisions of the right-of-way permit and this article pertaining to the use of the public rights-of-way. (b) Exceptions. (1) City maintenance activities are excepted from the permitting requirements outlined herein. (2) No application, permit or fee is required of network providers 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 facilities that are substantially similar in size or smaller and that do 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 or similar structures that are strung on cables between existing poles or node support poles, in compliance with the National Electric Safety Code. Substantially similar shall mean: (1) (A) the new or upgraded facility, including the antenna or other equipment element, will not be more than 10 percent larger than the existing facility, provided that the increase may not result in the facility exceeding the size limitations provided by Local Government Code Section 284.003; and (B) the new or upgraded pole will not be more than 10 percent higher than the existing pole, proved that the increase may not result in the pole exceeding Page 12 of 46 the applicable height limitations prescribed by Local Government Code Section 284.103; (2) the replacement or upgrade does not include replacement of an existing pole; and (3) the replacement or upgrade does not defeat exiting concealment elements of a pole. The determination of whether a replacement or upgrade is substantially similar is made by measuring from the dimensions of the facilities as approved by the municipality. Although no application, permit or fee is required, the City requires advance notice of the work described above and approval of the pole's owner as provided in this Ordinance. Work under this section must still meet all size requirements in this Ordinance and Design Manual criteria. (c) Permits Generally. (1) Permits will be issued in the name of the agency or network provider that will own the facilities. Permits for public infrastructure will be issued in the name of the public infrastructure contractor. (2) Any agency or public infrastructure contractor with a current, unexpired consent, franchise, agreement or other authorization from the city (grant) to use the public rights-of-way that is in effect at the time this article takes effect shall continue to operate under and comply with that grant, unless prohibited by law, until the grant expires or until it is terminated by mutual agreement of the city and the agency or public infrastructure contractor or as otherwise provided for by law. (3) Construction, excavation, or work area. No agency, network provider, or public infrastructure contractor shall perform construction, excavation, or work in an area larger or at a location different, or for a longer period of time than that specified in the permit or permit application. If, after construction, excavation, or work is commenced under an approved permit, it becomes necessary to perform construction, excavation, or work in a larger or different area than originally requested under the application or for a longer period of time, the agency or public infrastructure contractor shall notify the city engineer immediately and, within twenty-four (24) hours, shall file a supplementary application for the additional construction, excavation, or work. (4) Permit transferability or assignability. The agency, network provider, or public infrastructure contractor may subcontract the work to be performed under a permit provided that the agency, network provider, or public infrastructure contractor shall be and remain responsible for the performance of the work under the permit and all insurance and financial security as required. Permits are transferable and assignable upon written notice to the city engineer that the transferee or assignee has posted all required security pursuant to this article. Any transferee or assignee shall be bound by all requirements of the permit and this article. Page 13 of 46 (5) In the city, the physical construction of public infrastructure, excluding agency infrastructure and facilities installed by network providers, in new developments is the responsibility of the developer of the land. Ownership of that infrastructure remains with the developer of the land until accepted by the city. Any agency or public infrastructure contractor performing work on infrastructure which is within a public right-of-way, but prior to infrastructure acceptance by the city, shall obtain a permit from the city and permission from the owner of all of the infrastructure in the public right-of-way. The agency or public infrastructure contractor shall be financially responsible to the owner of the infrastructure to carry out all remedial work necessary to receive acceptance by the city of that infrastructure. This financial obligation shall apply only to the work in the public right-of-way done by the agency or public infrastructure contractor. The city will not accept for dedication public infrastructure where work performed is not in accordance with applicable city specifications. (6) Any agency, network provider, or public infrastructure contractor found to be conducting any excavation activity within the public right-of-way without having first obtained the required permit(s) shall immediately cease all activity (exclusive of actions required to stabilize the area) and be required to obtain a permit before work may be restarted. (7) The city may institute all appropriate legal action to prohibit any agency, network provider, or public infrastructure contractor from knowingly using the public rights-of-way unless the agency or public infrastructure contractor has complied with the terms of this article. Sec. 14.03.201 Right -of -Way Permit application; permit contents. (a) General to all Right -of -Way Permits. (1) No person, agency, network provider, or public infrastructure contractor shall install any facilities or other encroachment or make a pavement cut or excavate in a public right-of-way without first obtaining a permit from the engineering department, except in an emergency. (2) If the project lies within a Highway Right -of -Way, the applicant must provide evidence of a permit from the State or Federal Government at the time of application. (3) Franchised agencies and agencies that are certificated telecommunications providers have prior authorization to do work in public rights-of-way. However, an agency's use of the public rights-of-way is subject to and must occur in Page 14 of 46 accordance with State of Texas laws and city ordinances, policies, standards and procedures. Said use is non-exclusive and does not establish priority for use over other franchise holders, permit holders, or the city. A permit issued by the City of Beaumont is required for all work done in the public rights-of-way, except as indicated in Section 14.03.200(b). (4) Each application for a permit shall be submitted using the required form, which may be obtained from the engineering department or building inspections department. The applicant must determine what type of permit is sought and complete the correct application. The city is not responsible for determining that the correct application was completed by the applicant and approval of a permit does not imply that the city has concluded that the applicant completed the proper application. The application shall disclose if the applicant proposes that the facilities will be located in: a historic district; within 300 feet of a historic site or structure or Historic Landmark recognized by the City, state or federal government; within a municipal park; within a residential district; or in an area that has undergrounding requirements. The agency, network provider, or public infrastructure contractor requesting a permit shall provide the city with documentation in the format specified by the building inspections or engineering department. The application is not complete unless it contains all information required on the application form and any supplemental materials provided by the engineering or building inspections departments. The applicant shall provide detailed drawings, with calculations to show strict conformity to the size limitations in this ordinance. The applicant shall provide analysis indicating that the proposed facilities will not cause any interference with City public safety radio system, traffic signal light system, or other city safety communications components. (5) New residential service connections do not require a permit under this article. However, a building permit may be required from the building inspections department. An agency or public infrastructure contractor must inquire with the Planning and Community Development Department as to whether a permit is required for such service connections. (a) Maintenance or replacement of existing service connections that requires excavation will require a permit under this article. (6) The city shall state on the permit the activity for which the permit is. issued and any additional restrictions or requirements that have been placed upon the permit besides those incorporated into the permit by this Ordinance, the Zoning Ordinance, the Design Manual for Installation of Network Nodes and Node Support Poles, or other law or regulation, as applicable. Page 15 of 46 (7) All construction and installation in the public rights-of-way shall be in accordance with the permit issued for the facilities. The city engineer shall be provided access to the work and to such further information as he or she may reasonably require to ensure compliance with the permit. (8) A copy of the right-of-way construction permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the city engineer at all times when construction or installation work is occurring. (9) The agency, network provider, or public infrastructure contractor shall update any new information on permit applications within ten (10) days after any change occurs. (10) Agencies, network providers, or public infrastructure contractors may apply jointly for permits to work in public rights-of-way at the same time and place. (11) All permit holders must contact the City Engineering Department by telephone at least 48 hours before work begins under the permit. (b) Types of permits: (1) Standard Right -of -Way Permits. a. A standard right-of-way permit is required whenever a cut or excavation is made in a public right-of-way by an agency or infrastructure contractor. b. Application for a standard right-of-way permit shall be made no less than two (2) City of Beaumont working days prior to the date of the proposed activity. If the proposed cut or excavation is to be made in'the public rights- of-way dedicated to the State of Texas, a city permit is required in addition to any and all permits required by the state or other agencies. A city permit is required although specific authority has been granted by the engineering department to cut a paved street, curb or alley as a part of a new construction project. c. There is no fee for a standard right-of-way permit (2) Permits issued under emergency conditions. Any agency, network provider, or public infrastructure contractor maintaining facilities in the public rights-of-way may proceed with repairs upon existing facilities without a permit when emergency circumstances demand that the work be done immediately. The agency, network provider, or public infrastructure contractor doing the work Page 16 of 46 shall notify the engineering department no later than the next business day by telephone, fax, or e-mail when an emergency permit is required. A permit application for.the proper permit under this section must be submitted no later than the next business day after the work is commenced. (3) Standard Right -of -Way Maintenance permits. a. A maintenance permit is required whenever work is being done by an agency or infrastructure contractor in or on a major thoroughfare and no cut or excavation is required. b. Application for a maintenance permit must be submitted no later than the business day prior to the date of the proposed maintenance work. Applications may be submitted in person or via fax or e-mail to the engineering department. c. The requirements outlined for permits issued under emergency conditions in subsection (2) of this section apply to maintenance permits, as do the remaining requirements of this article. (4) Small Cell Right -of -Way Permits. a. A small cell right-of-way permit is required for network providers. The permit may be for transportation facilities, network nodes, or network node support poles. b. Fees are $500 per application covering up to five network nodes, $250 for each additional network node per application, and $1,000 per application for each pole. c. Network providers may obtain transportation service from a person or entity occupying the public right-of-way with their written permission for the specific address. d. A small cell maintenance permit is required unless the exception in Section 14.03.200(b)(2) applies. e. Not later than the 30th day after the date of receipt of an application for a permit for a network node or node support pole, or the 10th day after the date of receipt of an application for a permit for a transportation facility, the city shall determine whether the application is complete and notify the applicant of that determination. If the municipality determines that the Page 17 of 46 application is incomplete, the city shall specifically identify the missing information in the notification to the applicant. f. Not later than the 150th day after the date of receipt of a complete application for a node support pole, the city must approve or deny the application. Not later than the 60th day after the date of receipt of a complete application for a network node, the city must approve or deny the application. Not later than the 21St day after the date of receipt of a complete application for a transport facility, the city must approve or deny the application. If the city does not approve or deny within these deadlines, an application for a permit for a node support pole, network node, or transport facility shall be deemed approved. g. If the city denies a complete application, it must document the basis for the denial, including the specific applicable code provision or other municipal rule, regulation, or other law on which the denial is based. The city shall send the documentation of the reason for denial by electronic mail to the applicant on or before the date the city denies the application. h. Not later than the 30th day after the date the municipality denies the application, the applicant may cure the deficiencies identified in the denial documentation and resubmit the application without paying an additional application fee, other than a fee for actual costs incurred by the city. Notwithstanding Subsection (c), the city shall approve or deny the revised completed application after a denial not later than the 90th day after the date the municipality receives the completed revised application. The cities review of the revised application is limited to the deficiencies cited in the denial application. (d) Denial, suspension, or revocation of a permit. (1) Denial of a permit. A permit may be denied for any one (1) of the following reasons: a. The proposed activity will substantially interfere with vehicular or pedestrian traffic and no procedures, or procedures which are inconsistent with this article, have been implemented to minimize the interference. b. The proposed construction will substantially interfere with another activity for which a permit has been issued, or will conflict or interfere with existing facilities already in the public right-of-way. Page 18 of 46 c. The proposed barricading, channelizing, signing, warning or other traffic control procedures or equipment do not comply with the requirements of the Texas Manual on Uniform Traffic Control Devices. d. The activity or the manner in which it is to be performed will violate a city ordinance or regulation or a state or federal statute or regulation. e. The agency, network provider, or public infrastructure contractor: 1. Does not have liability insurance as required by section 14.03.203; 2. Has consistently failed to perform in accordance with the requirements of this article; 3. Has failed to furnish all of the information required by this article or, except for good cause shown, to file the applications within the time prescribed by this article; 4. Has misrepresented or falsified any information in the applications; 5. Has failed to comply with the performance warranty/guarantee as provided in this article; 6. Has outstanding debts to the city; or 7. Is not in compliance with applicable requirements of an existing permit issued under this article. f. The agency, network provider, or public infrastructure contractor requests to cut a city -maintained street that can be crossed by jacking, boring or tunneling. g. There is a lack of available space. h. Failure to comply with requirements of the design manual. (2) Suspension or revocation of a permit. The city engineer may suspend by stop work order or revoke any or all permits granted to allow work in the public rights-of-way on the same grounds on which a permit may be. denied under subsection (d)(1) or for the following reasons and subject to the procedural guidelines noted in this ordinance and any agreement that applies to the Page 19 of 46 agency, network provider, or public infrastructure contractor using the public rights-of-way, as well as any limitations imposed by federal or state law: a. Failing to comply with an order of the city engineer; b. The recognition that a permit was issued in error; c. Failing to comply with restrictions or requirements placed on the permit by the city engineer; d. The City Manager reasonably determines that the disconnection, removal, or relocation of equipment (a) is necessary to protect the public health, safety, welfare, or City property, (b) equipment, or portion thereof, is adversely affecting proper operation of streetlights or city property, or (c) there is imminent danger to the public. e. Violating any provision of this article. (3) Automatic revocation of a permit. If no work has begun on a network node permit within six months of final approval of the permit, or within thirty days of final approval for a standard right-of-way permit, the permit shall be void, and a new permit shall be required. (4) Extension of a permit. A sixty (60) day extension to a permit may be granted if requested by the agency, network provider, or public infrastructure contractor in writing to the engineering department. Such a request must be made before the permit expires. If no call for the cancellation of a permit, or for an inspection after completion of the work, is received within the sixty (60) day extension period, the permit shall be void, and a new permit shall be required. (5) The city engineer shall provide written notice of a denial, suspension or revocation to the agency, network provider, or public infrastructure contractor. Construction that is suspended may not resume until the city engineer determines that the agency, network provider, or public infrastructure contractor has corrected the violation, noncompliance, or hazard that caused the suspension. A permit that has been denied or revoked may be issued or reinstated by the city engineer if the city engineer determines that: a. The agency, network provider, or public infrastructure contractor has corrected the violation, noncompliance, or hazard that caused the revocation or denial; and Page 20 of 46 b. The health or safety of the public is not jeopardized by reinstating or issuing the permit. (6) An agency or public infrastructure contractor may appeal a permit denial, suspension, or revocation in accordance with the provisions of section 19-68 of this article. (7) Any variance from the requirements of this article must be approved in advance by the city engineer. The city engineer may grant a variance only if an extreme hardship exists and the public health, safety, welfare, and convenience is not adversely affected by granting the variance. The city engineer may not approve any variance that would give a competitive advantage to one (1) agency over another agency providing the same or similar service. The city engineer may not grant a variance from the indemnity requirements of section 14.03.205. Sec. 14.03.202 Appeals. (a) Applicability. Appeals may be filed pursuant to this section related to interpretations of this ordinance or decisions of the city engineer related to the final denial, suspension, or revocation of a permit. However, the appeal process provided by this section shall not be available for criminal violations of this article. (b) Appeal to city manager. A permittee or applicant may appeal interpretations or decisions referred to in subsection (a) above by filing a written appeal with the city manager within seven (7) working days of receipt of denial, suspension, or revocation of the permit. An appeal filed pursuant to this section shall specifically state the basis for the aggrieved party's challenge to the city engineer's interpretation or decision under this article. (c) Issuance of decision by city manager. Decisions of the city manager shall be issued within ten (10) working days of receipt of the written appeal. Decisions of the city manager shall be final. Sec. 14.03.203 Insurance requirements. (a) Agencies. Each agency, network provider or public infrastructure contractor applying for a permit shall obtain, maintain, and provide proof of the each of the following types of insurance and coverage limits. These insurance policies shall be underwritten by insurance companies with an A.M. Best Rating of A VI or better. Page 21 of 46 (1) Commercial general liability on an occurrence form with minimum limits of five million dollars ($5,000,000.00) per occurrence and ten million dollars ($10,000,000.00) aggregate. This coverage shall include the following: a. Products/completed operations to be maintained for one (1) year. b. Personal and advertising injury. c. Owners and contractors protective liability. d. Explosion, collapse, or underground (XCU) hazards. (2) Automobile liability coverage with a minimum policy limits of one million dollars ($1,000,000.00) combined single limit. This coverage shall include all owned, hired and non -owned automobiles. (3) Workers compensation and employers liability coverage. Statutory coverage limits for Coverage A and five hundred thousand dollars ($500,000.00) Coverage B employers liability is required. (b) The method for proof of insurance is a certified copy of the insurance policy. (c) The city reserves the right to review the insurance requirements and to reasonably adjust insurance coverage and limits when the city manager determines that changes in statutory law, court decisions, or the claims history of the industry, the agency, network provider, or public infrastructure contractor require adjustment of the coverage. (d) The city will accept certificates of self-insurance issued by the State of Texas or letters written by the agency in those instances where the state does not issue such letters, which provide the same coverage as required herein. However, certificates of self-insurance must be approved in advance by the risk manager for the city. (e) The agency, network provider or public infrastructure contractor shall furnish, at no cost to the city, copies of certificates of insurance evidencing the coverage required by this section to the city. If the city requests a deletion, revision or modification, the agency, network provider, or public infrastructure contractor shall exercise reasonable efforts to pay for and accomplish the change. (f) The agency, network provider, or public infrastructure contractor shall file and maintain proof of insurance with the engineering department. An insurance certificate obtained in compliance with this section is subject to city approval, Page 22 of 46 through the city's risk manager. The city may require the certificate to be changed to reflect changing liability limits. An agency, network provider, or public infrastructure contractor shall immediately advise the city attorney of actual or potential litigation that may develop which may affect an existing carrier's obligation to defend and indemnify the city. (g) Such insurance shall be kept in full force and effect during the period of time for which a permit shall be issued or the space occupied. Insurance coverage must be available on a "per project" basis. (h) An insurer has no right of recovery against the city. The required insurance policies shall protect the agency or public infrastructure contractor and include the city as an additional insured. The insurance shall be primary coverage for losses covered by the policies. (i) The policy clause "other insurance" shall not apply to the city. (j) The agency, network provider, or public infrastructure contractor shall pay premiums and assessments. A company that issues an insurance policy has no recourse against the city for payment of a premium or assessment. Insurance policies obtained by an agency, network provider, or public infrastructure contractor must provide that the issuing company waives all right of recovery by way of subrogation against the city in connection with damage covered by the policy. (k) Each policy must include a provision that requires the insurance company to notify the city in writing at least thirty (30) days before canceling or failing to renew the policy or before reducing policy limits or coverages. (1) Each agency must comply with the insurance requirements in this section, unless the agency's current franchise or license agreement with the city specifically addresses insurance requirements, in which case the franchise or license agreement shall control. Sec. 14.03.204 Performance warranty/guarantee. (a) Any warranty made hereunder shall serve as security for the performance of work necessary to repair the public rights-of-way if the agency, network provider, or public infrastructure contractor fails to make the necessary repairs or to complete the work under the permit. (b) The agency, network provider, or public infrastructure contractor, by acceptance of the permit, expressly warrants and guarantees complete performance of the work affecting the city's right-of-way in a manner acceptable to the city and warrants and Page 23 of 46 guarantees all such work done for a period of one (1) year after the date of acceptance and agrees to maintain upon demand and to make all necessary repairs during the one-year period. This warranty shall include all repairs and actions needed as a result of: (1) Defects in workmanship; (2) Settling of fills or excavations; (3) Any unauthorized deviations from the approved plans and specifications; (4) Failure to barricade; (5) Failure to clean up during and after performance of the work; (6) Restoration of improvements including, but not limited to, landscaping and irrigation; or (7) Any other violation of this article or the ordinances of the city. (c) The one-year warranty period shall run from the date of the city's acceptance of the work which shall be the date of the letter of acceptance issued by the city to the agency, network provider, or public infrastructure contractor. If repairs are required during the one-year warranty period, those repairs need only be warranted until the end of the initial one-year period starting with the date of acceptance. It is not necessary that a new one-year warranty be provided for subsequent repairs after probationary acceptance. (d) At any time prior to completion of the one-year warranty period, the city may notify the agency, network provider, or public infrastructure contractor of any needed repairs. Such repairs shall be completed within twenty-four (24) hours if the defects are determined by the city to be an imminent danger to the public health, safety, and welfare. Non -emergency repairs shall be completed within fifteen (15) calendar days after notice. Sec. 14.03.205 Indemnification. To the extent authorized by law, each certificated telecommunications provider, agency, network provider, or public infrastructure contractor placing facilities in the public rights- of-way shall indemnify, and hold the city and its officers and employees harmless from and against all claims, lawsuits, judgments, costs, liens, losses, expenses, fees, (including reasonable attorney's fees and costs of defense), proceedings, actions, Page 24 of 46 demands, causes of action, liability, and suits of any kind and nature, including personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought that is found by a court of competent jurisdiction to be caused solely by the negligent act, error, or omission of the agency, network provider, or public infrastructure contractor any agent, officer, director, representative, employee, affiliate, or subcontractor of the certificated telecommunications provider, agency, network provider or public infrastructure contractor , while installing, repairing, or maintaining facilities in a public right-of-way. The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the city, its officers, employees, contractors, or subcontractors. If a certificated telecommunications provider, agency, network provider, or public infrastructure contractor and the city are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of state without, however, waiving any governmental immunity available to the city under state law and without waiving any defenses of the parties under state law. This section is solely for the benefit of the city and the certificated telecommunication provider, agency, network provider or public infrastructure contractor and does not create or grant any rights, contractual or otherwise, to any other person or entity. Sec. 14.03.206 General rights-of-way use and construction. (a) Responsibility for Employees, courtesy and drug policy. Agencies, network providers and infrastructure contractors shall be responsible and liable for the acts and omissions of their employees, temporary employees, officers, directors, consultants, agents, Affiliates, subsidiaries, and subcontractors in connection with the installations of facilities in the right-of-way, as if such acts or omissions were agency's, Network Provider's, or public infrastructure contractor's acts or omissions. Work in the public rights-of-way shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners and residents. Citizen satisfaction must be a priority in using the Right -of -Way. Agencies, network providers, and infrastructure contractors shall train their employees to be customer service-oriented and to positively and politely interact with citizens when dealing with issues pertaining to its facilities in the right-of-way. Employees shall be clean, courteous, efficient, and neat in appearance and committed to offering the highest quality of interaction with the public. If, in the opinion of the City Manager, the employee is not interacting in a positive and polite manner with citizens, he or she shall request that the agency, network provider or infrastructure contractor take all remedial steps to conform to these standards. It is the policy of the City to achieve a drug-free workforce and workplace. The manufacture, distribution, dispensation, possession, sale, or use of illegal drugs or alcohol by agency's, network provider's or infrastructure contractor's employees, contractors, subcontractors, or vendors while on City rights-of-way is prohibited. Page 25 of 46 (b) Minimal interference. Agency's, network provider's, or public infrastructure contractor's facilities shall be constructed or maintained in such a manner as not to interfere with sewers, water pipes, or any other property of the city, or with any other pipes, wires, conduits, pedestals, structures, or other facilities that may have been laid in the rights-of-way by, or under, the city's authority. The agency's, network provider's or public infrastructure contractor's facilities shall be located, erected, and maintained so as not to endanger or interfere with the lives of persons, or to interfere with improvements the city may deem proper to make or to unnecessarily hinder or obstruct the free use of the rights-of-way or other public property, and shall not interfere with the travel and use of public places by the public during the construction, repair, operation, or removal thereof, and shall not obstruct or impede traffic. The agency, network provider, or infrastructure contractor shall not cause any interference with City public safety radio system, traffic signal light system, or other city safety communications components. (c) Responsibilities under permit; location of facilities. (1) A permit does not relieve an agency, network provider, or public infrastructure contractor of the responsibility to coordinate with other utilities and to protect existing facilities. An agency, network provider, or public infrastructure contractor working in the right-of-way is responsible for obtaining line locates from all affected utilities or others with facilities in the right-of-way prior to any excavation. Use of the geographic information system or the plans of record does not satisfy this requirement. (2) In performing location of facilities in the public rights-of-way in preparation for construction under a permit, agency, network provider, or public infrastructure contractor shall compile all information obtained regarding its or any other facilities in the public rights-of-way related to a particular permit and shall make that information available to the city in a written and verified format acceptable to the city engineer. (3) Protection of utilities. Before beginning excavation in any public right-of- way, an agency, network provider, or public infrastructure contractor shall contact the Texas One -Call System or any other company operating under the One -Call Statute and, to the extent required by Chapter 251 of the Texas Utilities Code, make inquiries of all ditch companies, utility companies, districts, local government departments, and all other agencies that might have facilities in the area of work to determine possible conflicts. a. Field locations shall, be marked prior to commencing work. The agency, network provider, or public infrastructure contractor shall support and protect all pipes, conduits, poles, wires, or other Page 26 of 46 apparatus that may be affected by the work from damage during construction or settlement of trenches subsequent to construction. b. A person shall only use a water-based paint in the public right-of- way to mark the location of existing underground utilities. A person commits an offense, if a marking he makes in the public right-of- way to mark the location of existing underground utilities remains visible longer than sixty (60) days after being applied. (d) Underground construction and use of poles. (1) If required by the subdivision ordinance of the city or the comprehensive zoning ordinance as it relates to overlay districts or when required by general ordinances, deed restrictions, regulations or rules of the city or applicable state or federal law, agency's, network provider's, or public infrastructure contractor's new facilities shall be placed underground at agency's, or network provider's or public infrastructure contractor's expense. Placing facilities underground does not preclude the use of otherwise acceptable ground -mounted appurtenances. Related equipment, such as pedestals, must be placed in accordance with the city's applicable code requirements and rules, including all visibility easement requirements. In areas where existing facilities are aerial, the agency, network provider, or public infrastructure contractor may install aerial facilities. If a location is designated by the city to be an underground requirement area, then an agency's or network provider's permit for the location of the facilities, and related ground equipment at such location will be revoked 90 days after the designation, with removal of said facilities and related ground equipment at such location within 90 days of such designation, or as otherwise reasonably allowed by the city for the transition of other overhead facilities. (2) Facilities shall be maintained in an appropriate manner. (3) Should the city desire to place its own facilities in trenches or bores opened by the agency, network provider, or public infrastructure contractor, the agency, network provider, or public infrastructure contractor shall cooperate with the city in any construction by the agency, network provider, or public infrastructure contractor that involves trenching or boring, provided that the city has first notified the agency, network provider, or public infrastructure contractor in some manner that it is interested in sharing the trenches or bores in the area in which the agency's, network provider's or public infrastructure contractor's construction is occurring. The agency, network provider, or public infrastructure contractor shall allow the city to place its facilities in the agency's, network provider's or public infrastructure contractor's trenches and bores, provided the city incurs any incremental increase in cost of the trenching and boring. The city shall be responsible for maintaining its respective facilities buried in the Page 27 of 46 agency's, network provider's or public infrastructure contractor's trenches and bores under this paragraph. (e) Joint trenching. The public rights-of-way have a finite capacity for containing facilities. The city engineer may require an agency, network provider, or public infrastructure contractor to share trench space to minimize the disruption of vehicular or pedestrian traffic. (1) All facilities shall meet any applicable local, state, and federal clearance and other safety requirements, be adequately grounded and anchored, and meet the provisions of any contracts executed between agency, network provider, or public infrastructure contractor and the other joint user. Agency, network provider, or public infrastructure contractor may, at its option, correct any attachment deficiencies and charge the joint user for its costs. (f) Excavation safety. On construction projects in which excavation will exceed a depth of five (5) feet, the agency, network provider, or public infrastructure contractor must have detailed plans and specifications for excavation safety systems. The term "excavation" includes trenches, structural or any construction that has earthen excavation subject to collapse. The excavation safety plan shall be designed in conformance with state law and Occupational Safety and Health Administration (OSHA) standards and regulations. (g) Erosion control. The agency, network provider, or public infrastructure contractor shall be responsible for storm water management erosion control that complies with city, state and federal guidelines. All installations shall comply with City of Beaumont Erosion and Sediment Control Manual, as amended, and in accordance with Exhibit 5. (h) On-site requirements. Agencies, network providers and public infrastructure contractors subject to this article must have a minimum of one (1) English-speaking representative at the site where work is being performed at all times. Additionally, each of agency's, or network provider's or public infrastructure contractor's vehicles shall bear a sign identifying the agency, network provider, or public infrastructure contractor that owns the vehicles. (i) Electrical Supply. Agencies, network providers and public infrastructure contracts are responsible for obtaining any required electrical power services to their facilities. The city shall not be liable for any stoppages or shortages of electrical power furnished to the facilities, including without limitation, stoppages or shortages caused by any act, omission, or requirement of the public utility serving the facilities or the act or omission of any other tenant of the structure or user of the right-of-way, or for any other cause beyond the control of the city. Generators and back-up generators are prohibited in the right-of-way. Page 28 of 46 (2) The city will notify the affected agencies, network providers, and public infrastructure contractors at least six (6) months before construction will start on a city project. Preliminary plans will be provided to the affected agencies, network providers, and public infrastructure contractors at least four (4) months before the project is to start construction. Final plans will be provided to the affected agencies, network providers, and public infrastructure contractors at least two (2) months before the project is to start construction. (3) Whenever it is possible and reasonably practicable to joint trench or share bores or cutes, the agency, network provider, or public infrastructure contractor shall work with other agencies, network providers, and public infrastructure contractors so as to reduce as much as possible the number of right-of-way cuts within the city. (c) Excavation master plan. In addition to participating in the utility coordination meetings, any agency, network provider, or public infrastructure contractor owning, operating or installing facilities in public rights-of-way, providing water, sewer, gas, electric, communication, video, or other utility services, shall meet annually with the city engineer, at the city engineer's request, to discuss agency's, network provider's, or public infrastructure contractor's excavation master plan. At such meeting, to the extent not already in possession of the city, agency, network provider, or public infrastructure contractor shall submit documentation, in a form required by the city engineer, showing the location of the agency's, network provider's, or public infrastructure contractor's existing facilities in the public rights-of-way. (1) Agency, network provider, or public infrastructure contractor shall discuss with the city engineer its excavation master plan and identify planned major excavation work in the city. The city engineer may make his own record on a map, drawing, or other documentation of each agency's or network provider's or public infrastructure contractor's planned major excavation work in the city; provided, however, that no such document prepared by the city engineer shall identify a particular entity, or the planned major excavation work of that particular entity. (2) Each agency or public infrastructure contractor shall submit annually, on or before March 31, a revised and updated excavation master plan. As used in this subsection, the term "planned major excavation work" refers to any future excavations planned by the agency, network provider, or public infrastructure contractor when the excavation master plan or update is submitted that will affect any public rights-of-way for more than five (5) days, provided that the agency, network provider, or public infrastructure contractor shall not be required to identify future major excavations planned to occur more than three (3) years after the date that the agency's, network provider's, or public infrastructure contractor's master plan or update is discussed. Page 30 of 46 (3) Between the annual meetings to discuss planned major excavation work, agency, network provider, or public infrastructure contractor shall inform the city engineer of any substantial changes in the planned major excavation work discussed at the annual meeting. The city will not preclude an agency, network provider, or public infrastructure contractor from obtaining a permit for a project that was inadvertently excluded from the agency's, network provider's or infrastructure contractor's excavation master plan or was unknown at the time the plan was created. Sec. 14.03.209 Minimizing the impacts of work in the rights-of-way. (a) Noise, dust, debris, hours of work. Each agency, network provider, and public infrastructure contractor shall conduct work in such a manner as to avoid unnecessary inconvenience and annoyance to the general public and occupants of neighboring property. In the performance of the work, the agency, network provider, or public infrastructure contractor shall take appropriate measures to reduce noise, dust, and unsightly debris. No work shall be done between the hours of 10:00 p.m. and 7:00 a.m., except with the written permission of the city engineer, or in case of an emergency. Bore time is restricted to the following schedule: 7AM to 4PM Monday through Thursday, 7AM to Noon on Friday and no bore on Saturday and Sunday. Missiles are not considered directional boring and are not allowed unless otherwise approved by the city. (b) Trash and construction materials. (1) Each agency, network provider, and public infrastructure contractor shall maintain the work site so that: a. Trash and construction materials are contained so that they are not blown off of the construction site. b. Trash is removed from a construction site often enough so that it does not become a health, fire, or safety hazard. c. Trash dumpsters and storage or construction trailers are not placed in the street without written approval of the city engineer. (2) Agency, network provider, or public infrastructure contractor may only use approved trash haulers when working. in the public rights-of-way. (c) Deposit of dirt and material on roadways. Each agency, network provider, and public infrastructure contractor shall eliminate the tracking of mud or debris upon Page 31 of 46 any street or sidewalk. Equipment and trucks used during construction, excavation, or work activity shall be cleaned of mud and debris prior to leaving any work site. (d) Protection of trees and landscaping. Each agency, network provider, and public infrastructure contractor shall protect trees, landscape, and landscape features as required by the city and shall be responsible for supplemental maintenance and watering during construction and until restoration is complete and in accordance with the performance warranty made the agency, network provider, or public infrastructure contractor under this article. All protective measures shall be provided at the expense of the agency, network provider, or public infrastructure contractor. Agency, network provider, or infrastructure contractor and its contractors, and agents shall obtain written permission from the City Manager before trimming trees hanging over its facilities in the right-of-way. When directed by the city manager, agency, network provider or infrastructure contractor shall trim under the supervision and direction of the Parks Director. The removal of any trees within a historic district having a diameter at breast height greater than 24" shall require the approval of the Historic Landmark Commission. The City shall not be liable for any damages, injuries, or claims arising from agency's, network provider's, or infrastructure contractor's actions under this section. (e) Protection of paved surfaces from equipment damage. Backhoe equipment outriggers shall be fitted with rubber pads whenever outriggers are placed on any paved surface. Tracked vehicles with grousers are not permitted on paved surface unless specific precautions are taken to protect the surface. Agency, network provider, or public infrastructure contractor shall be responsible for any damage caused to the pavement by the operation of such equipment and shall repair such surfaces. Failure to do so will result in the use of the agency's, network provider's, or public infrastructure contractor's performance warranty/guarantee by the city to repair any damage, and, possibly, the requirement of additional warrantee(s). (f) Protection of property. Each agency, network provider, and public infrastructure contractor shall protect from injury any public rights-of-way and adjoining property by providing adequate support and taking other necessary measures. Agency, network provider, or public infrastructure contractor shall, at its own expense, shore up and protect all buildings, walls, fences, or other property likely to be damaged during the work and shall be responsible for all damage to public or private property resulting from failure to properly protect and carry out work in the public rights-of- way. (g) Clean-up. As the work progresses, all public rights-of-way and private property shall be thoroughly cleaned of all rubbish, excess dirt, rock, and other debris. All clean-up operations shall be done at the expense of the agency, network provider, or public infrastructure contractor. Agency, network provider, or public infrastructure contractor shall restore any disturbed area to its original condition. All restoration work must be completed within ten calendar days following the date of substantial Page 32 of 46 completion of the work in the right-of-way. Such clean-up and restoration shall be subject to the sole, reasonable approval of the city manager. (h) Vehicle parking. Each agency, network provider, and public infrastructure contractor shall make provisions for employee and construction vehicle parking so that neighborhood parking adjacent to a work site is not impacted. (i) Walkways. Each agency, network provider, and public infrastructure contractor shall maintain an adequate and safe unobstructed walkway. around a construction site or blocked sidewalk in conformance with City Code. (j) Graffiti Abatement. As soon as practical, but not later than fourteen (14) calendar days from the date agency, network provider, or infrastructure contractor receives notice thereof, the agency, network provider or infrastructure contractor, shall remove all graffiti on any of its facilities located in the Right of Way. The foregoing shall not relieve the agency, network provider, or infrastructure contractor from complying with any City graffiti or visual blight ordinance or regulation. (k) Signage. Agency, network provider, or infrastructure contractor shall post its name, location identifying information, and emergency telephone number in an area on the cabinet of the facility that is visible to the public. Signage required under this section shall not exceed 4" x 6", unless otherwise required by law (e.g. RF ground notification signs) or the city manager. Except as required by laws or by the utility pole owner, agency, network provider, or infrastructure contractor shall not post any other signage or advertising on the facilities or poles. (1) Ownership. No part of any facilities placed on the right-of-way pursuant to this ordinance will become, or be considered by the city as being affixed to or a part of, the right-of-way, except for facilities accepted as city facilities by the city engineer in writing. All other facilities placed in the right-of-way pursuant to this ordinance will be and remain the property of the agency or network provider and may be removed by the agency or network provider at any time, provided the agency or network provider shall obtain permits or give notice as required by this ordinance. Sec. 14.03.210 Facility size and locations. (a) Location in Right of Way, new development. All facilities in new developments shall be located in accordance with Exhibits 1, 2, 3 and 4, unless an alternative location has been approved by the city engineer. Such utility locations are hereby adopted as standard locations for facilities in new developments. The intent of these items is that they serve as a standard, not only to agencies, network providers, and public Page 33 of 46 infrastructure contractors working under city permit, but also to all city agencies whose routine business requires the installation, repair or relocation of utilities. (b) Location in Right of Way, existing development. New facilities to be installed in previously developed streets should be located as in Exhibits 1, 2, 3 and 4. If that location is already being used by another facility, the new facility shall be located such that it does not interfere with other facilities, both existing and future. No new facilities shall be located longitudinally in a median or under existing or proposed pavement. Poles located in medians must be constructed of steel or concrete, or other material approved by the City Engineer. (c) Location in Right of Way, generally. Facilities and related ground equipment shall be placed within two feet from the outer edge of the Right -of -Way line and three feet from back of curb to minimize any obstruction, impediment, or hindrance to the usual travel or public safety on a public right-of-way. (d) Pole Height. New poles or modified utility poles may not exceed the lesser of: (1) 10 feet in height above the tallest existing utility pole located within 500 linear feet of the new pole in the same public right-of-way; or (2) 55 feet above ground level. (e) Pole Spacing. New poles shall be shall be spaced apart from existing utility poles or node support poles at the same as the spacing between utility poles in the immediate proximity, but no less than at a minimum 300 feet from a utility pole or another node support pole to minimize the hazard of poles adjacent to road ways and to minimize effect on property values and aesthetics on the area. To maximize the line of sight at street corners and intersections and to minimize hazards at those locations, all new poles and ground equipment must be 250 feet or more from each street corner or street intersection. (f) Height of Equipment mounted on Poles. Pole mounted facilities shall be installed at least eight (8) feet above the ground, and if a facility is projecting toward the street, for the safety and protection of the public and vehicular traffic, the attachment shall be installed no less than sixteen (16) feet above the ground. (g) Protrusion of Equipment. Pole -mounted or structure -mounted facilities shall not protrude from the outer circumference of the existing structure or pole by more than two feet. (h) Size of pole mounted equipment. Pole mounted enclosures may not be taller than five feet. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer Page 34 of 46 switches, cut-off switches and vertical cable runs for the connection of power and other services. Antenna size. Each antenna that does not have exposed elements and is attached to an existing structure or pole: must be located inside an enclosure of not more than six cubic feet in volume; may not exceed a height of three feet above the existing structure or poles; and may not protrude from the outer circumference of the existing structure or pole by more than two feet. If an antenna has exposed elements and is attached to an existing structure or pole, the antenna and all of the antenna's exposed elements: must fit within an imaginary enclosure of not more than six cubic feet; may not exceed a height of three feet above the existing structure or pole; and may not protrude from the outer circumference of the existing structure or pole by more than two feet. The cumulative size of other equipment associated with the equipment attached to an existing structure or pole may not: be more than 28 cubic feet in volume; or protrude from the outer circumference of the existing pole or structure by more than two feet. (i) Limitation on Equipment on Poles. There shall be no more than one network node apparatus or antenna on any one pole. Q) Private pole owner permission. Network providers must have written approval of the utility pole owner for each specific poles and location on such pole. (k) Electric Code. All poles must meet National Electric Code clearance standards. Equipment attached to a utility pole must be installed in accordance with the National Electrical Safety Code, subject to applicable codes, and the utility pole owner's construction standards. (1) Existing telephone or electrical lines between existing utility poles. Micro network nodes shall only be lashed on existing telephone or electrical lines between existing utility poles and not place on utility poles, node support poles or service poles. (m) Prohibition on Overhead Facilities. Facilities may not be installed overhead in a public right-of-way if the public right-of-way is in a municipal park or is adjacent to a street or thoroughfare that is within a minor residential street and is in an area zoned residential or restricted to residential use by deed restrictions. (n) Municipal Service Poles. 1. In accordance with Agreement: Installations on all Service Poles is restricted to network providers and shall be in accordance with an agreement as allowed by Chapter 284, Sec. 285.056 and Sec. 284.101(a)(3), and (b). Page 35 of 46 2. Required industry standard pole load analysis: For proposed installations on Service Poles Network Provider shall complete and submit to the City an industry standard pole load analysis indicating that the Service Pole to which the Network Node is to be attached will safely support the load, in accordance with Chapter 284.108. 3. Height of attachments: All attachments on all Service Poles shall be at least 8 feet above grade, in accordance with Chapter 284, Sec. 285.108 (a) (1) - (2). If a Network Node attachment projects toward the street, for the safety and protection of the public and vehicular traffic, the attachment shall be installed no less than sixteen (16) feet above the ground. 4. Installations on Traffic Signals: Installations on all Traffic signal structures must not interfere with the integrity of the .facility in any way that may compromise the safety of the public, and must be in accordance with an agreement as allowed by Texas Local Government Code, Chapter 284, Sec. 285.056 and Sec. 284.101 (a) (3), and (b). Location on signal arms is prohibited. Installation of Network Node facilities on any traffic signal structures shall: i. Be encased in. a conduit separate from the traffic light electronics; ii. Have an electric power connection separate from the traffic signal structure; and iii. Have an access point separate from the traffic signal structure. 5. Installations on Street signage: Installations on all street signage structures must not interfere with the integrity of the facility in any way that may compromise the safety of the public. Installation of Network Node facilities on any street signage structures that has electronic equipment shall: i. Be encased in a conduit separate from any City signage electronics; ii. Have an electric power connection separate from the signage structure; iii. Have an access point separate from the signage structure. (o) Ground Equipment, parks. For the safety of municipal park patrons, particularly small children, and to allow full line of sights near municipal park property, no ground equipment may be installed in a right-of-way that is within a park or within 250 feet of the boundary line of a park, unless approved by the Parks Director in writing. Page 36 of 46 (p) Ground Equipment, generally. Ground equipment shall be minimal and the least intrusive. In order to minimize negative visual impact to the surrounding area, and to enhance the safety requirements of line of sight of pedestrians, particularly small children, the city engineer may deny a request for a permit for a proposed location of ground equipment where existing ground equipment within 300 feet already occupies a footprint of 25 sq. ft. or more to minimize effect on property values and aesthetics on the area. (q) Ground enclosure size. Ground based enclosures for network nodes, separate from the pole, may not be higher than three feet six inches from grade, wider than three feet six inches, or deeper than three feet six inches for network node permits and shall be no larger than six feet wide by four feet two inches high by two feet deep for standard right-of-way permits. For standard permit holders, ground based enclosures shall be no larger than six feet wide by four feet two inches high by two feet deep. Any larger facilities must be placed on private property and comply with all requirements of the City's Building Code, including receipt of a building permit prior to installation. (r) Concealment and enclosure, generally. Facilities shall be concealed or enclosed as much as reasonably possible in an equipment box, cabinet, or other unit that may include ventilation openings. External cables and wires hanging off a pole shall be sheathed or enclosed in a conduit, so that wires are protected and not visible or visually minimized. Guy wires, anchors, pedestals, boxes, and other above ground facilities shall not fully or partially encroach within a sidewalk area, including a clear vertical clearance of seven and one-half (7.5) feet above the sidewalk. No above- ground facilities shall be located closer than three (3) feet from the back of street curbs or edge of alley or within the sight visibility area. (s) Historic District criteria. Stealth or camouflage of facilities and poles shall be required by the city in design districts, in historic districts, and within 300 feet of a historic site or structure or historic landmark recognized by the City, state or federal government. Applications for placement of facilities in a historic district must include proposed stealth or camouflage measures. The City Planning Director will review and determine the suitability of the proposed concealment or camouflage measures as part of the right-of-way permit review process, based upon criteria in this ordinance and the design manual. (t) Colors in Historic Districts. Colors in historic districts must be in accordance with the City of Beaumont Design Guidelines. Colors in design districts must be approved by the City Planning Director in accordance with the design manual. Colors in areas other than in Historic Districts shall conform to colors of other installations of telecommunication providers in the immediately adjacent areas. Page 37 of 46 (u) Temporary utilities. Temporary utilities may be located in non-standard locations. Subsection (a) above shall govern, if applicable. (v) General construction and maintenance requirements. Facilities and poles shall be constructed and maintained 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 this ordinance or the Design Manual. 5. violate the federal Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.). (w) City infrastructure, radio. Facilities are not allowed on the City's public safety radio infrastructure. (x) Compliance with all laws. Agencies, network providers, and infrastructure contractors shall comply with all applicable city, state, and federal historic preservation laws and requirements. Sec. 14.03.211 Traffic control. (a) No person, agency, network provider, or public infrastructure contractor may close a public street without first obtaining a permit from the city engineer. An application for a maintenance permit and a traffic control plan shall be submitted to the city engineer no less than seven (7) working days prior to the date of the proposed closure unless an emergency exists, in which case immediate notice must be given to the city engineer. If a proposed construction project is to be made in the public right-of-way dedicated to the State of Texas, a city permit shall be required in addition to any and all permits required by the state. (b) When it is necessary to obstruct traffic, an application for a maintenance permit and a traffic control plan shall be submitted to the city engineer prior to starting construction. No permit will be issued until the traffic control plan is approved by the city engineer. No agency, network provider, or public infrastructure contractor shall block access to and from private property, block emergency vehicles, block access to fire hydrants, fire stations, fire escapes, water valves, underground vaults, valve Page 38 of 46 housing structures, or any other vital equipment unless the agency, network provider, or public infrastructure contractor provides the city with written verification of written notice delivered to the owner or occupant of the facility, equipment, or property at least forty-eight (48) hours in advance. (c) When necessary for public safety, the agency, network provider, or public infrastructure contractor shall employ flag .persons whose duties shall be to control traffic around or through the construction site. The use of flag persons may be required by the city engineer. (d) Unless approved by the city engineer, the agency, network provider, or public infrastructure contractor shall not impede rush hour traffic on major thoroughfares during the morning or evening rush hours. No construction shall be performed nor shall any traffic lane be closed to traffic during the hours of 6:00 a.m. to 9:00 a.m. or 4:00 p.m. to 6:00 p.m., Monday through Friday, without the written approval of the city engineer. (e) Lane closures on major thoroughfares will be limited to no more than two (2) hours at any time outside of the morning and evening rush hours unless approved by the city engineer. (f) Traffic control devices and barricades, as defined in Part VI of the Manual on Uniform Traffic Control Devices, must be used whenever it is necessary to close a traffic lane or sidewalk. Traffic control devices and barricades are to be supplied by the agency, network provider, or public infrastructure contractor. If used at night, they must be reflectorized and must be illuminated or have barricade warning lights. (g) Part VI of the Manual on Uniform Traffic Control Devices, or any successor publication thereto, shall be used as a guide for all maintenance and construction signing. The agency, network provider, or public infrastructure contractor shall illustrate on the permit the warning and control devices proposed for use. At the direction of the city engineer, such warning and control devices shall be modified. (h) The city engineer may refuse to issue a permit if proposed construction activity will substantially interfere with vehicular traffic flow on major thoroughfares or is inconsistent with procedures of this article. Sec. 14.03.212 Requirements for street cuts and repairs. (a) The agency, network provider, or public infrastructure contractor shall be responsible for maintaining all street cuts in such a manner as to avoid a hazard to vehicular and pedestrian traffic until permanently repaired. Page 39 of 46 (1) When emergency repairs are deemed necessary by the city engineer to correct a situation that is hazardous to the public, the agency, network provider, or public infrastructure contractor that is responsible for the cut shall be notified immediately. If the agency, network provider, or public infrastructure contractor does not provide an acceptable schedule for making the emergency repair within eight (8) hours of being notified, the repairs will be performed by the city, and the agency, network provider, or public infrastructure contractor will be billed for the repairs necessary to complete the project, including clean up. (2) Agency, network provider, or public infrastructure contractor will be required to maintain the interim cut repair until they have completed final repairs. (3) Traffic bearing steel plates shall be utilized on all concrete paving cuts until required curing is accomplished. Asphalt shall be used to provide smooth ramps at the edges. Plates or asphalt may be used for temporary repairs. (b) All damage caused directly or indirectly to the street surface or subsurface outside the pavement cut area shall be regarded as a part of the street cut. These areas, as established by the city inspector, will be included in the total area repaired. (c) The agency, network provider, or public infrastructure contractor shall notify the public works department immediately of any damage to other utilities, either city or privately -owned. (d) Construction methods: (1) The City of Beaumont Special Provisions to Standard Specifications for Public Works Construction and the City of Beaumont's Standard Construction Details shall govern the cutting and restoration of street and alley pavements in the city. These requirements shall apply equally to any person, public infrastructure contractor, network provider, agency or city department who makes cuts and repairs to streets and alleys in the City of Beaumont. Any above or in -ground equipment shall not be partially or completely within the sidewalk area unless otherwise approved by the city. (2) Permanent repairs of utility cuts in existing streets, alleys or easements will be completed by the agency, network provider, or public infrastructure contractor within fourteen (14) calendar days of beginning the work. If an agency, network provider, or public infrastructure contractor does not believe that it will be able to meet this schedule, the agency, network provider, or public infrastructure contractor must contact the city engineer concerning an alternative schedule for the repairs. Any alternative schedule must be approved by the city engineer prior to the beginning of the work. The agency, network provider, or public infrastructure contractor will be responsible for any maintenance of the repair Page 40 of 46 for a period of one (1) year after the repair is complete. Failure to do so will result in the use of the agency's, network provider's or public infrastructure contractor's performance warranty/guarantee by the city to repair any damage, and, possibly, the requirement of additional warrantee(s) and/or the denial of future permits. (3) Steel plates left in the right-of-way after repairs are completed will be removed by the city and become the city's property. (4) Excavation in street or alley pavements should begin with an air -hammer shovel, a pavement breaker or other equipment that will not damage the pavement outside an approximate width of the ditch prior to beginning trenching operations. All street excavations will be saw cut before the street is repaired. Full depth saw cuts are required. (5) If the excavation is to pass under where the curb is installed without dummy/expansion joint, the agency, network provider, or public infrastructure contractor may saw cut a smooth line one (1) foot beyond each side of the disturbed base. If no damage to curb is evident to the city inspector, the agency, network provider, or public infrastructure contractor may pump concrete under curb and gutter on cuts less than one (1) foot wide. The city inspector will make this determination prior to concrete being placed under existing curb and gutter. (e) Notification of homeowners' and homeowner associations. When an agency, network provider, or public infrastructure contractor is installing more than five hundred (500) linear feet of underground facilities, the agency, network provider, or public infrastructure contractor shall notify in writing all homeowner associations, from information maintained by the city, and individual homeowners along the route. Door hangers are an acceptable form of written notification. This notification shall give information about the project, not limited to the proposed location of the facilities, the time length for construction and a contact person to report any problems. The agency, network provider, or public infrastructure contractor must also contact all homeowner associations concerning the location of any underground improvements. Sec. 14.03.213 Standards for repair and restoration. (a) Agency, network provider, public infrastructure contractor responsibility. The agency, network provider, or public infrastructure contractor shall be fully responsible for the cost and actual performance of all work in the public rights-of- way. The agency, network provider, or public infrastructure contractor shall do all work in conformance with any and all engineering regulations, construction Page 41 of 46 specifications, and design standards adopted by the city. These standards shall apply to all work in the public rights-of-way unless otherwise indicated in the permit. (b) All restoration shall result in a work site condition equal to or better than the condition in which the site existed prior to construction. Restoration must be approved by the city engineer. In addition to the regulations, specifications, and standards referred to in subsection (a), the following provisions shall apply to work in the public rights-of-way of the city: (1) Restoration must be to the reasonable satisfaction of the city engineer and the property owner. The restoration shall include, but not be limited to: a. Replacing all ground cover with the type of ground cover damaged during work or better by sodding, as directed by the city; b. Installation of all manholes and handholes, as required; c. Backfilling of all bore pits, potholes, trenches or any other holes which must be done within seven (7) days after excavation of the bore pits, potholes, trenches or other holes, unless other safety requirements are approved by the city engineer; d. Leveling of all trenches and backhoe lines; e. Restoration of excavation site to city specifications; f. Restoration of all landscaping, trees, shrubs, ground cover, and sprinkler systems; and g. Repairing and replacing existing erosion control devices that have been damaged or destroyed as a part of the work. (2) All locate flags shall be removed during the cleanup process by the agency, network provider, or public infrastructure contractor at the completion of the work. (3) Restoration must be made in a timely manner as agreed upon by the city engineer and the agency, network provider, or public infrastructure contractor. If restoration is not satisfactory and/or is not performed within the agreed upon timeframe, all work in progress, except that related to the problem, including all work previously permitted but not complete, may be halted and a hold may be placed on any permits not approved until all restoration is complete, or the city Page 42 of 46 may complete the work and bill the agency, network provider, or public infrastructure contractor for the repairs performed by the city. Sec. 14.03.214 Construction and restoration standards for newly constructed or overlayed streets. (a) No agency, network provider, or public infrastructure contractor shall cause an open trench excavation or potholing of facilities in the pavement of any public right-of-way for a period of three (3) years from the completion of construction or resurfacing except in compliance with the provisions of this section. (b) Criteria for approval. No permit for excavation in the right-of-way of new streets shall be approved unless the city engineer finds that all of the following criteria have been met: (1) Boring or jacking without disturbing the pavement is not practical due to physical characteristics of the street or alley or other utility conflicts. (2) Alternative utility alignments that do not involve excavating the street or alley are found to be impracticable. (3) The proposed excavation cannot reasonably be delayed after the three-year deferment period has lapsed. (c) Exemptions for emergency operations. Emergency maintenance operations shall be limited to circumstances involving the preservation of life, property, or the restoration of customer service. Agencies, network providers, or public infrastructure contractors with prior authorization from the city engineer to perform emergency maintenance operations within the public rights-of-way shall be exempted from this section. Any agency, network provider, or public infrastructure contractor commencing operations under this section shall submit detailed engineering plans, construction methods, and remediation plans no later than the next business day after initiating the emergency maintenance operation. (d) Construction and restoration standards for newly constructed or overlayed streets and alleys. The streets shall be restored and repaired in accordance with design and construction standards adopted by the city and guaranteed in accordance with section 14.03.204. Page 43 of 46 Sec. 14.03.215 Relocation of facilities for public improvements. (a) In the exercise of governmental functions, the city has first priority over all other uses of the public rights-of-way. The city reserves the right to lay sewer, water, and other pipelines or cables and conduits, and to do underground and overhead work, and attachments, restructuring, or changes in aerial facilities in, across, along, over, or under a public street, alley, or public rights-of-way occupied by an agency, network provider, or public infrastructure contractor, and to change the curb, sidewalks, or the grade of streets. (b) The agency, network provider, or public infrastructure contractor must relocate its facilities at its own expense in a timely manner and prior to the start of construction of a city project. Failure to comply with this provision shall subject the agency, network provider, or public infrastructure contractor to the enforcement provisions contained herein. (c) A permit will be required when making facility adjustments in preparation for city projects, unless the adjustments are exempt under 14.03.200(b)(2). (d) If the agency, network provider or public infrastructure contractor fails to remove or relocate its facilities as requested within 90 days of receipt of the request, then the City shall be entitled to remove the facilities at the sole cost and expense of the agency, network provider, or infrastructure contractor without further notice. Agency or network provider shall, within 30 days following issuance of invoice for the same, reimburse the city for its reasonable expenses incurred in the removal (including, without limitation, overhead and storage expenses) of the facilities. Sec. 14.03.216 Abandonment and removal of facilities. (a) If a registration is not renewed, and subject to sixty (60) days notification to the agency all facilities owned by the agency within the city will be deemed to have been abandoned and shall become the property of the city. The City has appropriated $0 to pay for the cost of any removal or storage of facilities placed in the right-of-way, as authorized under this ordinance, and no other funds are allocated. (b) Any agency or network provider that intends to discontinue use of any facilities within the public rights-of-way shall notify the city engineer in writing of the intent to discontinue use. Such notice shall describe the facilities for which the use is to be discontinued, including the address or GPS coordinates of any pole, a date of discontinuance of use, which date shall not be less than thirty (30) days from the date such notice is submitted to the city engineer. Upon receipt of notice of discontinuance of use, the city shall have a right of first refusal to acquire agency's Page 44 of 46 or network provider's facilities with the cost for such facilities to be negotiated by the city and the agency or network provider. (c) Agency or network provider shall, at its sole cost and expense, promptly disconnect, remove or relocate its facilities if ordered to do so by the city pursuant to this ordinance. Agency or network provider shall reimburse city for the city's actual costs of removal of facilities if agency or network provider fails to promptly disconnect, remove and relocate its facilities. Payment must be made within thirty (30) days from receipt of an invoice for the actual costs from the city. (d) The city shall not issue any refunds for any amounts paid by agency, network provider or infrastructure contractor for facilities or related ground equipment that have been removed." Section 2. All provisions of the Code of Ordinances of the City of Beaumont, 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 Beaumont, codified or uncodified, not in conflict with this Ordinance shall remain in full force and effect. Section 3. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses, and phrases of this Ordinance are severable, and if any phrase, clause, sentence, or section of this Ordinance shall be declared unconstitutional or invalid by any court of competent jurisdiction, such unconstitutionality or invalidity shall not affect any other remaining phrase, clause, sentence, paragraph or section of this Ordinance. Page 45 of 46 Section 4. The repeal of any Ordinance or part of Ordinances effectuated by the enactment of this Ordinance shall not be construed as abandoning any action now pending under by virtue of such Ordinance or as discontinuing, abating, modifying or altering any penalty accruing or to accrue, or as affecting any rights of the municipality under any section or provisions at the time of passage of this ordinance. Section 5. This Ordinance shall become effective immediately upon its passage and publication as required by law. Section 6. The meeting at which this ordinance was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 28th day of August, 2017. - Mayor Becky Ames - ATTEST: Tina Broussard, City Secretary APPROVED AS TO FORM: Tyrone E. Cooper, CITY ATTORNEY Page 46 of 46 2 August 28, 2017 Consider approving a Design Manual and a Pole Attachment Agreement regulating the installation of network nodes and node support facilities on City service and utility poles BEAUMONT TEXAS TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Tyrone E. Cooper, City Attorney MEETING DATE: August 28, 2017 REQUESTED ACTION: Council consider an ordinance approving a Design Manual and a Pole Attachment Agreement regulating the installation of network nodes and node support facilities on City service and utility poles. BACKGROUND The 85th Legislature, sitting in regular session, passed Senate Bill 1004 enacting a new Chapter 284 of the Texas Local Government Code. The legislation, in general, grants wireless network providers access to public rights-of-way to install small cell network nodes to poles and structures in the public right-of-way. The effective date of this legislation is September 1, 2017. The State has delegated to each municipality the fiduciary responsibility to manage the public right-of-way for the health, safety and welfare of the public. In order to do so, in light of this new legislation, the City needs to have right-of-way management regulations and design criteria adopted prior to the effective date of the legislation. The ordinance proposes the adoption of a Design Manual and a Pole Attachment Agreement regulating the installation of network nodes on City service and utility poles. FUNDING SOURCE Not applicable. RECOMMENDATION Approval of ordinance. ORDINANCE NO. ENTITLED AN ORDINANCE APPROVING A DESIGN MANUAL FOR THE INSTALLATION OF NETWORK NODES AND NODE SUPPORT POLES; AND APPROVING A POLE ATTACHMENT AGREEMENT REGULATING THE INSTALLATION OF NETWORK NODES ON CITY SERVICE POLES AND UTILITY POLES; DECLARING GOVERNING LAW; PROVIDING REPEALING AND SAVINGS CLAUSES; PROVIDING A TEXAS OPEN MEETINGS ACT CLAUSE; AND PROVIDING AN EFFECTIVE DATE OF SEPTEMBER 1, 2017. WHEREAS, the City of Beaumont, 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 public rights-of-way their 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 Sec. 284.301 of the Code, the City desires to enact a Design Manual by the City of Beaumont, Texas for the Installation of Network Nodes and Node Support Poles ("the Design Manual") in order to meet its fiduciary duty to the citizens of the City, and to give assistance and 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 approve a Pole Attachment Agreement by which wireless telecommunication network providers may attach and collocate their Page 1 of 4 network nodes on city service and utility poles subject to the Code, the Design Manual, and the City Right -of -Way Management Ordinance. of fact. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL FOR THE CITY OF BEAUMONT, TEXAS THAT: SECTION 1. FINDINGS OF FACT The forgoing recitals are incorporated into this Ordinance as true and correct findings SECTION 2. APPROVING DESIGN MANUAL The City Council hereby approves the Design Manual by the City of Beaumont, Texas for the Installation of Network Nodes and Node Support Poles, which is attached hereto as Exhibit "A." SECTION 3. APPROVING POLE ATTACHMENT AGREEMENT The City Council hereby approves the Pole Attachment Agreement, which is attached hereto as Exhibit "B." SECTION 4. GOVERNING LAW This Ordinance 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. Section 5. 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. Page 2 of 4 SECTION 6. SAVINGS CLAUSE The City Council of the City of Beaumont, 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 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 7. 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 8. EFFECTIVE DATE. This Ordinance shall become effective upon passage. SECTION 9. The meeting at which this ordinance was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. Page 3 of 4 PASSED BY THE CITY COUNCIL of the City of Beaumont this the 28th day of August, 2017. ATTEST: Tina Broussard, City Secretary Page 4 of 4 - Mayor Becky Ames - Design Manual by the City of Beaumont, Texas for the Installation of Network Nodes and Node Support Poles pursuant to Tex. Loc. Gov. Code, Chapter 284. EXHIBIT "A" 1 Table of Contents SECTION 1. PURPOSE AND APPLICABILITY................................................................................................................ 3 SECTION2. DEFINITIONS..................................................................................................................................................... 3 SECTION 3. PROHIBITED AND PREFERRED LOCATIONS OF MICRO NETWORK NODE, NETWORK NODE, NODE SUPPORT POLE AND RELATED GROUND EQUIPMENT....................................................7 SECTION 4. GUIDELINES ON PLACEMENT................................................................................................................11 SECTION 5. GENERAL AESTHETIC REQUIREMENTS.............................................................................................15 SECTION 6. ELECTRICAL SUPPLY.................................................................................................................................16 SECTION 7. INSURANCE, INDEMNITY, BONDING AND SECURITY DEPOSITS...........................................17 SECTION 8. REQUIREMENTS IN REGARD TO REMOVAL, REPLACEMENT, REPLACEMENT, MAINTENANCEAND REPAIR...........................................................................................................................................17 SECTION 9. INSTALLATION AND INSPECTIONS......................................................................................................19 SECTION 10. REQUIREMENTS UPON ABANDONMENT OF OBSOLETE MICRO NETWORK NODE, NETWORK NODE, NODE SUPPORT POLE AND RELATED GROUND EQUIPMENT....................................19 SECTION 11. GENERAL PROVISIONS...........................................................................................................................20 SECTION 12. ADMINISTRATIVE HEARING - REQUEST FOR EXEMPTION...................................................23 SECTION 13-19 RESERVED...............................................................................................................................................23 SECTION 20. DESIGN MANUAL - UPDATES...............................................................................................................23 2 SECTION 1. PURPOSE AND APPLICABILITY. The City of Beaumont, 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. Purpose: Loc. Gov. Code, Chapter 284 allows certain wireless Network Providers to install in the public rights-of-way their wireless facilities, described and defined in Tex. Loc. Gov. Code, Chapter 284, Sec. 284.002 as "Micro Network Nodes", "Network Nodes", and "Node Support Poles". As expressly allowed by Tex. Loc. Gov. Code, Chapter 284, Section 284.108, and pursuant to its police power authority reserved in Sec. 284.3011, the City enacts these Design Guidelines in order to meet its fiduciary duty to the citizens of the City, and to give assistance and guidance to wireless telecommunications providers to assist such companies in the timely, efficient, safe and aesthetically pleasing installation of technologically competitive equipment. Applicability: This Design Manual is for siting and criteria for the installation Wireless Facilities, including Micro Network Nodes, Network Nodes, Node Support Poles and related ground equipment being installed pursuant to Loc. Gov. Code, Chapter 284 This Design Manual shall apply to any sitings, installations, collocations in, on, over or under the public rights-of-way of Network nodes, Node support poles, Micro network nodes, Distributed Antenna Systems, microwave communications or other Wireless Facilities, by whatever nomenclature, whether they are installed pursuant to Chapter 284, or installed pursuant to an agreement as agreed to and consented to by the City in its discretion, or installed as may otherwise be allowed by state law. City Rights -of -Way Management Ordinance: A Network Provider shall comply with the City's Rights -of -Way Management Ordinance except where in conflict with this Design Manual or Chapter 284, Subchapter C. SECTION 2. DEFINITIONS. The definitions as used in Tex. Loc. Gov. Code, Chapter 284, Sec. 284.002 shall be used in this Design Manual, unless otherwise noted in this Section 2, below.2 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. 3 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 Beaumont, Texas or its lawful successor. City Council means the municipal governing body of the City of Beaumont, Texas. Chapter 284 means Tex. Loc. Gov. Code, Chapter 284. City Manager means the City Manager for the City of Beaumont, Texas, or designee. 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 fagade, blended 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. 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. 0 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. 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. 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, as defined by Section 11.003, Utilities Code, 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 5 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. 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. SCADA or Supervisory Control and Data Acquisition systems means a category of software application programs and hardware used by the City for process control and gathering of data in real time from remote locations in order to monitor equipment and conditions of the City public water and wastewater utility facilities. These systems may utilize both cable and wireless communications. 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. 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. 7 SECTION 3. PROHIBITED AND PREFERRED LOCATIONS OF MICRO NETWORK NODE, NETWORK NODE, NODE SUPPORT POLE AND RELATED GROUND EQUIPMENT. A. Prohibited or Restricted Areas for Certain Wireless facilities, except with Separate City Agreement or Subject to Concealment Conditions. 1. Municipal Parks and Residential Areas. In accordance with Chapter 284, Sec. 284.104 (a), a Network Provider may not install a Node Support Pole in a public right-of-way without the City's discretionary, nondiscriminatory, and written consent if the public right-of-way is in a Municipal park or is adjacent to a street or thoroughfare that is: a. not more than 50 feet wide of paved street surface, being the area measured as the shortest distance between the inside of the curb to the inside of the opposite curb, or the area measured as the shortest distance between the two parallel edges of the paved roadway for vehicular travel where there is no curb; 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. 1.1 In accordance with Chapter 284, Sec. 284.104 (b), a Network Provider installing a Network Node or Node Support Pole in a public right-of-way described above shall comply with private deed restrictions and other private restrictions in the area that apply to those facilities. 1.2 Each permit application shall disclose if it is within a Municipal Park and Residential Areas as described above. 2. Historic District and Design Districts. In accordance with Chapter 284, Sec. 284.105, a Network Provider must obtain advance written approval from the City before collocating Network Nodes or installing Node Support Poles in a Design District with Decorative Poles or in an area of the City zoned or otherwise designated as a Design District or Historic District. 2.1. As a condition for approval of Network Nodes or Node Support Poles in Design Districts with Decorative Poles or in a Historic District, the City shall require reasonable design or Concealment measures for the Network Nodes or Node Support Poles. Therefore, any request for installations in a Design District with Decorative Poles or in a Historic District, must be accompanied with proposed Concealment measures in the permit applications. 2.2. The City request that a Network Provider explore the feasibility of using Camouflage measures to improve the aesthetics of the Network Nodes, Node Support Poles, or related ground equipment, or any portion of the nodes, poles, or equipment, to minimize the impact to the aesthetics in Design Districts or in an Historic District. 2.3. A Network Provider shall comply with and observe all applicable City, State, and federal historic preservation laws and requirements. 2.4. Each permit application shall disclose if it is within a Design District with Decorative Poles or in an area of the City zoned or otherwise designated as a Design District or Historic District. 3. Historic Landmarks. A Network Provider is discouraged from installing a Network Node or Node Support'Pole within 300 feet of a historic site or structure or Historic Landmark recognized by the City, state or federal government (see, for example, and not limited to §442.001(3) of the Texas Government Code, and 16 U.S.C. §470), as of the date of the submission of the permit. It is recommended that each permit application disclose if it is with 300 feet of such a structure. 4. Compliance with Undergrounding Requirements. In accordance with Chapter 284, Sec. 284.107, a Network Provider shall comply with nondiscriminatory undergrounding requirements, including 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 without first obtaining zoning or land use approval. 4.1 Areas may be designated from time to time by the City as Underground Requirement Areas in accordance with filed plats, and or conversions of overhead to underground areas, as may be allowed by law. 4.2 Each permit application shall disclose if it is within an area that has undergrounding requirements. B. Least preferable locations. 1. Residential Areas and Parks. A Network Provider is discouraged from installing a Network Node on an existing pole in a public right-of-way without written consent from the City Council if the public right-of-way is located in or adjacent to a street or thoroughfare that is adjacent to a municipal park or single-family residential lots or other multifamily residences or undeveloped land that is designated for residential use by zoning or deed restrictions. 1. In accordance with Chapter 284, Sec. 284.104 (b) a Network Provider installing a Network Node or a 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. 2. Historic Districts and Design Districts. A Network Provider is discouraged from installing a Network Node or a Node Support Pole in the public right-of-way in any area designated by the City as a Design Districts or in an area of the City zoned or otherwise designated as a Historic District unless such a Network Node or a new Node Support Pole is camouflaged. C. Most preferable locations 1. Industrial areas if not adjacent to a Municipal Park, Residential area, Historic District or Design District. 2. Highway Rights -of -Way areas if not adjacent to a Municipal Park, Residential area, Historic District or Design District. M 3. Retail and Commercial areas if not adjacent to a Municipal Park, Residential area, Historic District or Design District. D. Designated Areas. 1. The City Council may designate an area as a Historic District or a Design District under Chapter 284.105 at any time. 2. The failure to designate an area in this Chapter shall not mean that such an area is not within a defined district, if so designated by the City Council. Future areas may be designated as one of these Districts at any time. Such a designation does not require a zoning case. 3. While not required under Chapter 284 to designate Underground Compliance Areas to prohibit above ground Wireless facilities, the City may also, from time to time, also designate Underground Compliance Areas. E. Exceptions The City by its discretionary consent and agreement may grant exceptions to the above prohibited locations and sizes, but only in a non-exclusive, and non-discriminatory manner, as allowed or required by Chapter 284, Sec. 284.109 and Sec. 284.110. F. Order of Preference regarding Network Node attachment to existing facilities and New Node Support Poles. 1. Existing telephone or electrical lines between existing utility poles. Micro Network Nodes shall only be lashed on existing telephone or electrical lines between existing utility poles (electric poles or telephones poles), with notice to the pole owner as required by the Federal Pole Attachment Act, and not placed on Utility Poles, Node Support Poles or Service Poles. 2. Existing Utility Poles (electric poles or telephones poles), shall be the preferred support facility for Network Nodes and related ground equipment. 3. Municipal Service Poles: a. Non -decorative street lights with a height of more than 20 feet. b. Traffic signal structures when such installation will not interfere with the integrity of the facility and will not interfere with the safety of public and in accordance with an agreement as allowed by Chapter 284, Sec. 285.056 and Sec. 284.101 (a) (3), and (b)• c. Street signage shall be a low priority use for attachment of a Network Node. d. Other municipal Service pole use is discouraged. 4. New node support poles shall be the least preferred type of allowed facility for attachment of Network Nodes. 5. Ground Equipment. Ground equipment should be minimal and the least intrusive. 10 SECTION 4. GUIDELINES ON PLACEMENT. A. Generally. In accordance with Chapter 284.102, a Network Provider shall construct and maintain Network Nodes and Node Support Poles in a manner that does not: way; 1. obstruct, impede, or hinder the usual travel or public safety on a public right-of- 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 management ordinance or this Design Manual. 5. violate the federal Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.). B. General Requirements and Information: 1. Size Limits. Network Providers shall provide detailed drawings, with calculations to show strict conformity to the size limitations as set forth in Chapter 284, in accordance with, but not limited to Chapter 284, Sec. 284.002, size of a Micro Network Node, Sec. 284.003, Size of Network Nodes, and Sec. 284.103, Max. pole height, with each application and with each request for a permit for each location.3 2. State and Federal Rights-of-way permit. If the project lies within a Highway Right -of -Way, the applicant must provide evidence of a permit from the State or Federal Government. Confirmation of non-interference with City Safety Communication or SCADA Networks. a. The Network Provider needs to provide analysis that the proposed network node shall not cause any interference with City public safety radio system, traffic signal light system, SCADA system, or other city safety communications components in accordance with Chapter 284, Sec. 284.304. b. It shall be the responsibility of the Network Provider to evaluate, prior to making application for permit, the compatibility between the existing City infrastructure and Provider's proposed Network Node. A Network Node shall not be installed in a location that causes any interference. Network Nodes shall not be allowed on City's public safety radio infrastructure. 4. Improperly Located Network Node facilities, Node Support Poles and related ground equipment: a. Improperly Located Network Node facilities, Node Support Poles and related ground equipment shall not impede pedestrian or vehicular traffic in the Right -of -Way. If any Network Node facilities, Node Support Poles or ground equipment is installed in a location that is not in accordance with the plans approved by the City Administrator and impedes pedestrian or vehicular traffic or does not 11 comply or otherwise renders the Right -of -Way non-compliant with applicable Laws, including the American Disabilities Act, then Network Provider shall promptly remove the Network Node facilities, Node Support Poles or ground equipment. b. Notice to Remove unauthorized facilities and relocate and penalty: After 30 days' notice to remove of Network Node facilities, Node Support Poles or ground equipment that is located in the incorrect permitted location, if not relocated the Network Provider shall be subject to a penalty of $500.00 per day penalty until the Network Node facilities, Node Support Poles or ground equipment is relocated to the correct area within the permitted Location, regardless of whether or not the Network Provider's contractor, subcontractor, or vendor installed the Network Node facilities, Node Support Poles or ground equipment in strict conformity with the City Rights-of-way management ord., and other applicable ordnances concerning improperly located facilities in the rights-of-way. C. Underground Requirement Areas. 1. In accordance with Chapter 284.107, a Network Provider shall, in relation to installation for which the City approved a permit application, comply with nondiscriminatory undergrounding requirements, including 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 without first obtaining zoning or land use approval. 2. If a location is designated by the City to transits to be an Underground Requirement Area, then a Network Provider's permit for the location of the Micro Network Node, Network Node, Node Support Pole, and related ground equipment at such location will be revoked 90 days after the designation, with removal of said the Micro Network Node, Network Node, Node Support Pole, and related ground equipment at such location within 90 days of such designation, or as otherwise reasonably allowed by the City for the transition of other overhead facilities. 3. Before commencing underground installation, 811 Dig Tess must be called so that the area can be flagged for underground utilities. D. Network Node facilities placement: 1. Right -of -Way: Network Node facilities, Node Support Poles and related ground equipment shall be placed, as much as possible, within two feet of the outer edge of the Right -of -Way line to minimize any obstruction, impediment, or hindrance to the usual travel or public safety on a public right-of-way. 2. Height above ground. Network Node attachments to a pole shall be installed at least eight (8) feet above the ground in accordance with Chapter 284, Sec. 284.108, and if a Network Node attachment is projecting toward the street, for the safety and protection of the public and vehicular traffic, the attachment shall be installed no less than sixteen (16) feet above the ground. 3. Protrusions. In accordance with Chapter 284, Sec. 284.003 (a) (1) (C), Sec. 284.003 (a) (2) (C) and See. 284.003 (a) (3) (B) no protrusion from the outer circumference of the existing structure or pole shall be more than two (2) feet. 12 4. Limit on number of Network Nodes per Site. There shall be no more than one Network Node on any one Pole. E. New Node Support Poles. 1. New Node Support Poles Spacing. New node support poles shall be spaced apart from existing utility poles or Node Support poles at the same as the spacing between utility poles in the immediate proximity, but no less than at a minimum 300 feet from a utility pole or another Node Support Pole to minimize the hazard of poles adjacent to road ways and to minimize effect on property values and aesthetics on the area. 2. Height of Node Support Poles or modified Utility Pole. In accordance with Chapter 284, Sec. 284.103 a Node support pole or modified Utility Pole may not exceed the lesser of a. 10 feet in height above the tallest existing utility pole located within 500 linear feet of the new pole in the same public right-of-way; or b. 55 feet above ground level. F. Ground Equipment. 1. Ground Equipment near street corners and intersections: Ground equipment should be minimal and the least intrusive. In accordance with Chapter 284.102 (1), to minimize any obstruction, impediment, or hindrance to the usual travel or public safety on a public right-of-way the maximum line of sight required to add to safe travel of vehicular and pedestrian traffic and in order to maximize that line of sight at street corners and intersections and to minimize hazards at those locations, ground equipment may not be installed within 250 feet of a street corner or a street intersection. 2. Ground Equipment near Municipal Parks. For the safety of Municipal park patrons, particularly small children, and to allow full line of sights near Municipal park property, the Network Provider shall not install Ground Equipment in a Right -of -Way that is within a Park or within 250 feet of the boundary line of a Park, unless approved by the City Manager, or his designee, in writing. 3. Minimize Ground equipment density: In accordance with Chapter 284, Sec. 284.102 (1) to enhance the safety requirements of line of sight of pedestrians, particularly small children, the City Manager, or designee, may deny a request for a proposed Location if the Network Provider installs Network Node ground equipment where existing ground equipment within 300 feet already occupies a footprint of 25 sq. ft. or more. 4. Water, Sewer and Storm Drainage Lines: - Special precautions must be taken where underground fiber optic cable is installed in public street right-of-ways commonly used for utility corridors. a. Underground utilities and service connections must be identified prior to excavation. "Dig Alert," "One Call," or similar underground utility contractor must be contacted to identify the locations of subsurface utilities. 13 b. If temporary disruption of service is required, the installation contractor must notify the City, the service provider, and customers at least 24 hours in advance. No service on such lines may be disrupted until prior approval from the City and the service provider. c. At locations where the fiber optic cable will cross other subsurface utilities or structures, the cable must be installed to provide a minimum of 12 inches of vertical clearance between it and the other subsurface utilities or structures, while still maintaining the other applicable minimum depth requirement. To maintain the minimum depth requirement, the cable must be installed under the existing utility. If the minimum 12 -inch clearance cannot be obtained between the proposed cable facility and the existing utility, the fiber optic cable must be encased in steel pipe of avoid future damage. d. Existing Water Lines: No communication lines shall be placed on top of a water line but may be placed to the side of a water line at least 4 feet from the center line of the water line. When crossing a water line, a 12 -inch vertical or horizontal clearance must be maintained. Poles must be at least 3 feet from a water line. e. Existing Sewer Lines: No communication lines shall be placed on top of a sewer line but may be placed to the side of a sewer line at least 4 feet from the center line of the sewer line. When crossing a sewer line, a 12 -inch vertical or horizontal clearance must be maintained. Poles must be at least 3 feet from a sewer line. f. Existing Storm Drainage Lines: No communication lines shall be placed on top of a storm drainage line but may be placed to the side of a storm drainage line at least 4 feet from the center line of the storm drainage line. When crossing a storm drainage line, a 12 -inch vertical or horizontal clearance must be maintained. Poles must be at least 3 feet from a storm drainage line. 5. Blocking streets, roads, alleys or lanes: Texas Department of Transportation (TxDOT) standards must be followed for work zone areas that will block streets, roads, alleys or lanes. A traffic plan must be submitted to the City prior to construction. G. Municipal Service Poles: 1. In accordance with Agreement: Installations on all Service Poles shall be in accordance with an agreement as allowed by Chapter 284, Sec. 285.056 and Sec. 284.101 (a) (3), and (b). 2. Required industry standard pole load analysis: Installations on all Service Poles shall have an industry standard pole load analysis completed and submitted to the municipality with each permit application indicating that the Service Pole to which the 14 Network Node is to be attached will safely support the load, in accordance with Chapter 284.108. 3. Height of attachments: All attachments on all Service Poles shall be at least 8 feet above grade, in accordance with Chapter 284, Sec. 285.108 (a) (1) - (2) and if a Network Node attachment is projecting toward the street, for the safety and protection of the public and vehicular traffic, the attachment shall be installed no less than sixteen (16) feet above the ground. 4. Installations on Traffic Signals: Installations on all Traffic signal structures must not interfere with the integrity of the facility in any way that may compromise the safety of the public and must be in accordance with an agreement as allowed by Chapter 284, Sec. 285.056 and Sec. 284.101 (a) (3), and (b). Installation of Network Node facilities on any traffic signal structures shall: a. Be encased in a separate conduit than the traffic light electronics; b. Have a separate electric power connection than the traffic signal structure; and c. Have a separate access point than the traffic signal structure; and 5. Installations on Street signage: Installations on all street signage structures must not interfere with the integrity of the facility in any way that may compromise the safety of the public. Installation of Network Node facilities on any street signage structures that has electrics shall: a. Be encased in a separate conduit than any City signage electronics; b. Have a separate electric power connection than the signage structure; c. Have a separate access point than the signage structure; and 6. Restoration of City facilities and private property: The Network Provider shall be responsible for repairing any damage to any street, street right-of-way, ditch or any structure to its original condition immediately upon completing the installation. Any change to the slope of the land must be remedied, and there must be replacement of top soil and grass to its original condition. SECTION 5. GENERAL AESTHETIC REQUIREMENTS A. Concealment. 1. Concealment of Network Nodes and Node support poles shall be required by the City in Design Districts with Decorative Poles and in Historic Districts pursuant to Chapter 284.105. 2. It is also the City's preference that all new node support poles be camouflaged, except those located in an area zoned or predominantly industrial area. Companies shall submit their proposal for camouflage with the permit application. 3. The Network Node facilities shall be concealed or enclosed as much as reasonably possible in an equipment box, cabinet, or other unit that may include ventilation openings. External cables and wires hanging off a pole shall be sheathed or enclosed in a conduit, so that wires are protected and not visible or visually minimized to the extent possible in strict accordance with the 15 City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 4. The Network Node facilities shall be concealed or enclosed as much as possible in an equipment box, cabinet, or other unit that may include ventilation openings. External cables and wires hanging off a pole shall be sheathed or enclosed in a conduit, so that wires are protected and not visible or visually minimized to the extent possible, except to the extent not consistent with Chapter 284. B. New Node Support Pole Spacing. New node support poles shall be at a minimum 300 feet from a utility pole or another Node Support Pole to minimize the hazard of poles adjacent to road ways and to minimize effect on property values and aesthetics on the area. C. Minimize Ground Equipment Concentration. In order to minimize negative visual impact to the surrounding area, and in accordance with Chapter 284, Sec. 284.102 (1) to enhance the safety requirements of line of sight of pedestrians, particularly small children, the City's designee may deny a request for a proposed Location if the Network Provider installs Network Node ground equipment where existing ground equipment within 300 feet already occupies a footprint of 25 sq. ft. or more to minimize effect on property values and aesthetics on the area. D. Allowed Colors. 1. Colors in Historic Districts and Design Districts must be in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284 2. Colors in Historic Districts and Design Districts must be approved by the City Manager, or his designee, from a palette of approved colors. Unless otherwise provided, all colors shall be earth tones or shall match the background of any structure the facilities are located upon and all efforts shall be made for the colors to be inconspicuous. Colors in areas other than in Historic Districts and Design Districts shall conform to colors of other installations of telecommunication providers in the immediately adjacent areas. SECTION 6. ELECTRICAL SUPPLY A. Network Provider shall be responsible for obtaining any required electrical power service to the Micro Network Node, Network Node facilities, Node Support Poles and ground equipment. The City shall not be liable to the Network Provider for any stoppages or shortages of electrical power furnished to the Micro Network Node, Network Node facilities, Node Support Poles or ground equipment, including without limitation, stoppages or shortages caused by any act, omission, or requirement of the public utility serving the structure or the act or omission of any other tenant or Network Provider of the structure, or for any other cause beyond the control of the City. B. Network Provider shall not allow or install generators or back-up generators in the Public Right -of -Way in accordance with Chapter 284, Sec. 284.002 (12) (B) (1). 16 SECTION 7. INSURANCE, INDEMNITY, BONDING AND SECURITY DEPOSITS. A. Insurance, bonding and security deposits shall be in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. B. Indemnity shall be in accordance with Chapter 284, Sec. 284.302, as provided for in Chapter 283, Sec. 283.057 (a) and (b) of the Texas Loc. Gov't Code. SECTION 8. REQUIREMENTS IN REGARD TO REMOVAL, REPLACEMENT, REPLACEMENT, MAINTENANCE AND REPAIR A. REMOVAL OR RELOCATION BY NETWORK PROVIDER. 1. Removal and relocation, by the Network provider of its Micro Network Node, Network Node facilities, Node Support Pole or related ground equipment at its own discretion, shall be in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284 2. If the Network Provider removes or relocates a Micro Network Node, Network Node facilities, Node Support Pole or related ground equipment at its own discretion, it shall notify the City Manager, or his designee, in writing not less than 10 business days prior to removal or relocation. Network Provider shall obtain all Permits required for relocation or removal of its Micro Network Node, Network Node facilities, Node Support Poles and related ground equipment prior to relocation or removal. 3. The City shall not issue any refunds for any amounts paid by Network Provider for Micro Network Node, Network Node facilities, Node Support Poles or related ground equipment that have been removed. B. REMOVAL OR RELOCATION REQUIRED FOR CITY PROJECT. 1. Removal and Relocation of Network Provider's Micro Network Node, Network Node, Node Support Pole or related ground equipment, or portion thereof required for a City project shall be in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284, Sec. 284.107, except as provided in existing state and federal law. 2. In accordance with Chapter 284, Sec. 284.107, except as provided in existing state and federal law, a Network Provider shall relocate or adjust Micro Network Node, Network Node, Node Support Pole and related ground equipment in a public right-of-way in a timely manner and without cost to the City managing the public right-of-way 3. Network Provider understands and acknowledges that the City may require Network Provider to remove or relocate its Micro Network Node, Network Node, Node Support Pole and related ground equipment, or any portion thereof from the Right -of -Way for City construction projects as allowed by state and federal law, including the common-law. . 4. Network Provider shall, at the City Manager's, of his designee's, direction, remove or relocate the same at Network Provider's sole cost and expense, except as otherwise provided in existing state and federal law, whenever the City Mayor reasonably determines that the relocation or removal is needed for any of the following purposes: Required for the construction, completion, 17 repair, widening, relocation, or maintenance of, or use in connection with, any City construction or maintenance project of a street ort public rights-of-way to enhance the traveling public's use for travel and transportation. 5. If Network Provider fails to remove or relocate the Micro Network Node, Network Node, Node Support Pole or related ground equipment, or portion thereof as requested by the City Mayor within 90 days of Network Provider's receipt of the request, then the City shall be entitled to remove the Micro Network Node, Network Node, Node Support Pole or related ground equipment, or portion thereof at Network Provider's sole cost and expense, without further notice to Network Provider. 6. Network Provider shall, within 30 days following issuance of invoice for the same, reimburse the City for its reasonable expenses incurred in the removal (including, without limitation, overhead and storage expenses) of the Micro Network Node, Network Node, Node Support Pole or related ground equipment, or portion thereof. C. REMOVAL REQUIRED BY CITY FOR SAFETY AND IMMINENT DANGER REASONS. 1. Network Provider shall, at its sole cost and expense, promptly disconnect, remove, or relocate the applicable Micro Network Node, Network Node, Node Support Pole and related ground equipment within the time frame and in the manner required by the City Manager, or his designee, if the City Manager, or his designee, reasonably determines that the disconnection, removal, or relocation of any part of a Micro Network Node, Network Node, Node Support Pole and related ground equipment (a) is necessary to protect the public health, safety, welfare, or City property, (b) the Micro Network Node, Network Node, Node Support Pole and related ground equipment, or portion thereof, is adversely affecting proper operation of streetlights or City property, or (c) Network Provider fails to obtain all applicable licenses, Permits, and certifications required by Law for its Micro Network Node, Network Node, Node Support Pole and related ground equipment, or use of any Location under applicable law in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 2. If the City Manager, or his designee, reasonably determines that there is imminent danger to the public, then the City may immediately disconnect, remove, or relocate the applicable Micro Network Node, Network Node, Node Support Pole and related ground equipment at the Network Provider's sole cost and expense in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 3. Network Provider shall, at its sole cost and expense, promptly disconnect, remove, or relocate the applicable Micro Network Node, Network Node, Node Support Pole and related ground equipment within the time frame and in the manner required by the City Manager, or his designee, if the City Manager, or his designee, reasonably determines that the disconnection, removal, or relocation of any part of a Micro Network Node, Network Node, Node Support Pole and related ground equipment (a) is necessary to protect the public health, safety, welfare, or City property, (b) the Micro Network Node, Network Node, Node Support Pole and related ground equipment, or portion thereof, is adversely affecting proper operation of streetlights or City property, or (c) Network Provider fails to obtain all applicable licenses, Permits, and certifications required by Law for its Micro Network Node, Network Node, Node Support Pole and related ground equipment, or use of any Location under applicable law. If the City Manager, or his designee, reasonably determines that there is imminent danger to the public, then the City may immediately disconnect, remove, or relocate the applicable Micro Network Node, Network Node, Node Support Pole and related ground equipment at the Network Provider's sole cost and expense. 4. The City Manager, or his designee, shall provide 90 days written notice to the Network Provider before removing a Micro Network Node, Network Node, Node Support Pole and related ground equipment under this Section, unless there is imminent danger to the public health, safety, and welfare. 5. Network Provider shall reimburse City for the City's actual cost of removal of Micro Network Node, Network Node, Node Support Pole and related ground equipment within 30 days of receiving the invoice from the City. SECTION 9. INSTALLATION AND INSPECTIONS A. INSTALLATION. 1. Network Provider shall, at its own cost and expense, install the Micro Network Node, Network Node facilities, Node Support Poles and related ground equipment in a good and workmanlike manner in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284 2. Network Provider shall, at its own cost and expense, install the Micro Network Node, Network Node facilities, Node Support Poles and related ground equipment in a good and workmanlike manner and in accordance with the requirements promulgated by the City Manager, or his designee, as such may be amended from time to time. Network Provider's work shall be subject to the regulation, control and direction of the City Manager, or his designee. All work done in connection with the installation, operation, maintenance, repair, modification, and/or replacement of the Micro Network Node, Network Node facilities, Node Support Poles and related ground equipment shall be in compliance with all applicable laws, ordinances, codes, rules and regulations of the City, applicable county, the state, and the United States ("Laws"). B. INSPECTIONS. 1. The City Manager, or designee, may perform visual inspections of any Micro Network Node, Network Node, Node Support Pole or related ground equipment located in the Right -of - Way shall be allowed in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284 2. The City Manager, or designee, may perform visual inspections of any Micro Network Node, Network Node, Node Support Pole or related ground equipment located in the Right -of - Way as the City Manager, or his designee, deems appropriate without notice. If the inspection requires physical contact with the Micro Network Node, Network Node, Node Support Poles or related ground equipment, the City Manager, or his designee, shall provide written notice to the Network Provider within five business days of the planned inspection. Network Provider may have a representative present during such inspection. 19 SECTION 10. REQUIREMENTS UPON ABANDONMENT OF OBSOLETE MICRO NETWORK NODE, NETWORK NODE, NODE SUPPORT POLE AND RELATED GROUND EQUIPMENT. 1. Abandoned or obsolete Micro Network Node, Network Node, Node Support Pole and related ground equipment shall be removed in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 2. Network Provider shall remove Micro Network Node, Network Node, Node Support Pole and related ground equipment when such facilities are abandoned regardless of whether or not it receives notice from the City. Unless the City sends notice that removal must be completed immediately to ensure public health, safety, and welfare, the removal must be completed within the earlier of 90 days of the Micro Network Node, Network Node, Node Support Pole and related ground equipment being abandoned or within 90 days of receipt of written notice from the City. When Network Provider removes, or abandons permanent structures in the Right -of -Way, the Network Provider shall notify the City Manager, or his designee, in writing of such removal or Abandonment and shall file with the City Manager, or his designee, the location and description of each Micro Network Node, Network Node, Node Support Pole and related ground equipment removed or abandoned. The City Manager, or his designee, may require the Network Provider to complete additional remedial measures necessary for public safety and the integrity of the Right - of -Way. SECTION 11. GENERAL PROVISIONS. 1. As Built Maps and Records. Network Provider's as built maps and records shall be in strict accordance with the City's rights-of-way management ordinance,, and other applicable ordinances, except to the extent not consistent with Chapter 284. 1.1 A Network Provider shall maintain accurate maps and other appropriate records of its Network Node facilities, Node Support Poles and related ground equipment as they are actually constructed in the Rights -of -Way, including, upon request, the use of Auto CAD/GIS digital format. Network Provider will provide additional maps to the City upon request. 2. Courtesy and Proper Performance. Courtesy and Proper Performance of Network provider's personnel, and contractors shall be in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 2.1 A Network Provider shall make citizen satisfaction a priority in using the Right -of - Way. Network Provider shall train its employees to be customer service-oriented and to positively and politely interact with citizens when dealing with issues pertaining to its Micro Network Node, Network Node, Node Support Pole and related ground equipment in the Right -of -Way. Network Provider's employees shall be clean, courteous, efficient, and neat in appearance and committed to offering the highest quality of interaction with the public. If, in the opinion of the City Manager, or designee, Network Provider is not interacting in a positive and polite manner with citizens, he or she shall request Network Provider to take all remedial steps to conform to these standards. 20 3. DRUG POLICY. Drug policy of Network provider's personnel, and contractors in the public rights-of-way shall be in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 3.1 It is the policy of the City to achieve a drug-free workforce and workplace. The manufacture, distribution, dispensation, possession, sale, or use of illegal drugs or alcohol by Network Provider's employees, contractors, subcontractors, sub -Network Provider's, or vendors while on City rights-of-way is prohibited. 4. ALLOCATION OF FUNDS FOR REMOVAL AND STORAGE. The City Council has currently appropriated no funds to pay for the cost of any removal or storage of Micro Network Node, Network Node, Node Support Pole and related ground equipment, as authorized under the law. 5. OWNERSHIP. Ownership of Network Node and related equipment shall be in strict accordance with the City's rights-of-way management ordinance, and other applicable codes and ordinances, except to the extent not consistent with Chapter 284. 5.1 No part of a Micro Network Node, Network Node, Node Support Pole and related ground equipment erected or placed on the Right -of -Way by Network Provider will become, or be considered by the City as being affixed to or a part of, the Right -of -Way. All portions of the Micro Network Node, Network Node, Node Support Pole and related ground equipment constructed, modified, erected, or placed by Network Provider on the Right -of -Way will be and remain the property of Network Provider and may be removed by Network Provider at any time, provided the Network Provider shall notify the City Manager, or his designee, prior to any work in the Right - of -Way. 6. Tree Maintenance. Tree maintenance shall be in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 6.1 A Network Provider, its contractors, and agents shall obtain written permission from the City Manager, or his designee, before trimming trees hanging over its Micro Network Node, Network Node, or Node Support Pole, to prevent branches of such trees from contacting attached Micro Network Node, Network Node, or Node Support Pole. When directed by the City Manager, or his designee, Network Provider shall trim under the supervision and direction of the City Manager, or his designee. The City shall not be liable for any damages, injuries, or claims arising from Network Provider's actions under this section. 7. Signage. Signage shall be in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 7.1 Network Provider shall post its name, location identifying information, and emergency telephone number in an area on the cabinet of the Network Node facility that is visible to the public. Signage required under this section shall not exceed 4" x 6", unless otherwise required by law (e.g. RF ground notification signs) or the City Manager, or his designee. 7.2 Except as required by law or by the Utility Pole owner, a Network Provider shall not post any other signage or advertising on the Micro Network Node, Network Node, Node Support Pole, Service pole or Utility Pole. 21 8. Graffiti Abatement. Graffiti abatement shall be in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 8.1 As soon as practical, but not later than fourteen (14) calendar days from the date Network Provider receives notice thereof, Network Provider shall remove all graffiti on any of its Micro Network Node, Network Node, Node Support Pole, and related ground equipment located in the Right of Way. The foregoing shall not relieve the Network Provider from complying with any City graffiti or visual blight ordinance or regulation. 9. Restoration. 9.1 A Network Provider shall restore and repair of the public rights-of-way from any damage to the Right -of -Way, or any facilities located within the Right -of -Way, and the property of any third party resulting from Network Provider's removal or relocation activities (or any other of Network Provider's activities hereunder) in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 9.2 A Network Provider shall repair any damage to the Right -of -Way, or any facilities located within the Right -of -Way, and the property of any third party resulting from Network Provider's removal or relocation activities (or any other of Network Provider's activities hereunder) within 10 calendar days following the date of such removal or relocation, at Network Provider's sole cost and expense, including restoration of the Right -of -Way and such property to substantially the same condition as it was immediately before the date Network Provider was granted a Permit for the applicable Location or did the work at such Location (even if Network Provider did not first obtain a Permit), including restoration or replacement of any damaged trees, shrubs or other vegetation. Such repair, restoration and replacement shall be subject to the sole, reasonable approval of the City Manager, or his designee. 10. Network provider's responsibility. 10.1 A Network Provider shall be responsible and liable for the acts and omissions of the Network Provider's employees, temporary employees, officers, directors, consultants, agents, Affiliates, subsidiaries, sub -Network Provider's and subcontractors in connection with the installations of any Micro Network Node, Network Node, Node Support Pole and related ground equipment, as if such acts or omissions were Network Provider's acts or omissions in strict accordance with the City's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with Chapter 284. 10.2 A Network Provider shall be responsible and liable for the acts and omissions of the Network Provider's employees, temporary employees, officers, directors, consultants, agents, Affiliates, subsidiaries, sub -Network Provider's and subcontractors in connection with the installations of any Micro Network Node, Network Node, Node Support Pole, Transport Facility and related ground equipment, as if such acts or omissions were Network Provider's acts or omissions. 22 SECTION 12. ADMINISTRATIVE HEARING — REQUEST FOR EXEMPTION 12.1 Should the Network Provider desire to deviate from any of the standards set forth in the Design Manual, the Network Provider may request an Administrative Hearing before a Board of Appeals. The Zoning Board of Adjustment shall act as the Board of Appeals for a Request for Exemption. 12.2 The process for an application, hearing and vote shall follow the process set out for a variance. SECTION 13-19 RESERVED SECTION 20. DESIGN MANUAL - UPDATES Placement or Modification of Micro Network Node, Network Node, Node Support Pole, Transport Facility, and related ground equipment shall comply with the City's Design Manual at the time the Permit for installation or Modification is approved and as amended from time to time. ' Sec. 284.301. LOCAL POLICE -POWER -BASED REGULATIONS. (a) Subject to this chapter and applicable federal and state law, a municipality may continue to exercise zoning, land use, planning, and permitting authority in the municipality's boundaries, including with respect to utility poles. (b) A municipality may exercise that authority to impose police -power -based regulations for the management of the public right-of-way that apply to all persons subject to the municipality. (c) A municipality may impose police -power -based regulations in the management of the activities of network providers in the public right-of-way only to the extent that the regulations are reasonably necessary to protect the health, safety, and welfare of the public. a The definitions as used in Tx. Loc. Gov. Code, Chapter 284, Sec. 284.002 shall be used in this Design Manual. Tex. Loc. Gov. Code, Chapter 284, Sec. 284.002. DEFINITIONS. In this chapter: (1) "Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services. (2) "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 this chapter. (3) "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. (4) "Decorative pole" means a streetlight pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specially designed 23 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. (5) "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. (6) "Historic district" means an area that is zoned or otherwise designated as a historic district under municipal, state, or federal law. (7) "Law" means common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance. (8) "Macro tower" means a guyed or self -supported pole or monopole greater than the height parameters prescribed by Section 284.103 and that supports or is capable of supporting antennas. (9) "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. (10) "Municipally owned utility pole" means a utility pole owned or operated by a municipally owned utility, as defined by Section 11.003, Utilities Code, and located in a public right-of-way. (11) "Municipal park" means an area that is zoned or otherwise designated by municipal code as a public park for the purpose of recreational activity. (12) "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. (13) "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. (14) "Node support pole" means a pole installed by a network provider for the primary purpose of supporting a network node. (15) "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. (16) "Pole" means a service pole, municipally owned utility pole, node support pole, or 24 utility pole. (17) "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. (18) "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. (19) "Public right-of-way management ordinance" means an ordinance that complies with Subchapter C. (20) "Public right-of-way rate" means an annual rental charge paid by a network provider to a municipality related to the construction, maintenance, or operation of network nodes within a public right-of-way in the municipality. (21) "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. (22) "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. (23) "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 Section 51.002, Utilities Code. (24) "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. (25) "Wireless service provider" means a person that provides wireless service to the public. s Sec. 284.002. DEFINITIONS (8) "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. Sec. 284.003. LIMITATION ON SIZE OF NETWORK NODES. (a) Except as provided by Section 284.109, a network node to which this chapter applies must conform to the following conditions: (1) each antenna that does not have exposed elements and is attached to an existing structure or pole: (A) must be located inside an enclosure of not more than six cubic feet in volume; (B) may not exceed a height of three feet above the existing structure or pole; and 25 (C) may not protrude from the outer circumference of the existing structure or pole by more than two feet; (2) if an antenna has exposed elements and is attached to an existing structure or pole, the antenna and all of the antenna's exposed elements: (A) must fit within an imaginary enclosure of not more than six cubic feet; (B) may not exceed a height of three feet above the existing structure or pole; and (C) may not protrude from the outer circumference of the existing structure or pole by more than two feet; (3) the cumulative size of other wireless equipment associated with the network node attached to an existing structure or pole may not: (A) be more than 28 cubic feet in volume; or (B) protrude from the outer circumference of the existing structure or a node support pole by more than two feet; (4) ground-based enclosures, separate from the pole, may not be higher than three feet six inches from grade, wider than three feet six inches, or deeper than three feet six inches; and (5) pole -mounted enclosures may not be taller than five feet. (b) The following types of associated ancillary equipment are not included in the calculation of equipment volume under Subsection (a): (1) electric meters; (2) concealment elements; (3) telecommunications demarcation boxes; (4) grounding equipment; (5) power transfer switches; (6) cut-off switches; and (7) vertical cable runs for the connection of power and other services. (c) Equipment attached to node support poles may not protrude from the outer edge of the node support pole by more than two feet. (d) Equipment attached to a utility pole must be installed in accordance with the National Electrical Safety Code, subject to applicable codes, and the utility pole owner's construction standards. 26 TEXAS LOCAL GOVERNMENT CODE CHAPTER 284 POLE ATTACHMENT AGREEMENT THE STATE OF TEXAS § COUNTY OF JEFFERSON § THIS AGREEMENT is made and entered into pursuant to Section 284.056, Section 284.201, and Section 284.301 of the Texas Local Government Code, effective this day of 20by and between the CITY OF BEAUMONT, TEXAS, hereinafter called "the City", and , hereinafter called "the Network Provider," and is as follows: WHEREAS, the Network Provider is a wireless telecommunications network provider as that term is defined in Section 284.002 of the Texas Local Government Code ("the Code); and WHEREAS, the City owns certain public rights-of-way with service and or utility poles within its municipal territorial limits; and WHEREAS, the Network Provider desires to attach certain Network Nodes, as that term is defined in Section 284.002 of the Code, on City -owned service poles and/or utility poles; and WHEREAS, the Network Provider and the City desire to enter into this Agreement to secure authority from the City for the Network Provider to install certain Network Nodes on such City poles, subject to the City's Design Manual for the Installation of Network Nodes and Node Support Poles ("the Design Manual") and the City's Right -of -Way Management Ordinance; and WHEREAS, this Agreement is entered into pursuant to Chapter 284 of the Texas Local Government Code, in order to address the desires of the Network Provider and the procedures of the City; and WHEREAS, the Network Provider and the City acknowledge that this Agreement is binding upon the City and the Network Provider and their respective successors and assigns for the term (defined below) of this Agreement; and NOW, THEREFORE, BE IT MUTUALLY AGREED AS FOLLOWS: 1. Location of the City Poles. The Service and/or Utility Poles owned by the City on which the Network Nodes are to be attached by the Network Provider are generally described as: Page 1 of 3 EXHIBIT "B" 2. The Network Provider acknowledges that it has received and reviewed the applicable provisions in the City Design Manual and the Right -of -Way Management Ordinance; and further acknowledges that this Pole Attachment Agreement is subject to the terms and regulations of each. 3. The Network Provider agrees to pay the City for collocation of its Network Nodes at the following annual rates: a. City Service Poles: $20.00 per year per service pole. b. City Utilily Poles: An annual pole attachment rate applied on a per -foot basis consistent with Section 54.024 of the Texas Utilities Code. 4. The City acknowledges that it will comply with the requirements of the Code and that it will allow the collocation of Network Nodes on the City service and utility poles on a non-exclusive, nondiscriminatory basis, subject to the Network Provider paying the applicable fees to the City and complying with the Design Manual and the Right -of -Way Management Ordinance. 5. Pursuant to Section 284.301 of the Texas Local Government Code, the Network Provider agrees that the City is authorized to enforce all of the City's regulations that do not materially interfere with the use of Network Nodes. 6. The primary term of this Agreement shall be five (5) years commencing upon the effective date first set forth above. This Agreement shall be automatically renewed and extended for subsequent one (1) year terms unless at least sixty (60) days prior to the expiration of the term either party shall give written notice to the other of the party's intent to terminate the Agreement at the end of the current term. 7. Any notice required or permitted under this Agreement shall be in writing and shall be delivered in hand or by registered or certified US mail. Notice to the Network Provider and the City may be addressed as follows: Page 2 of 3 City of Beaumont P. O. Box 3827 Beaumont, Texas 77704 8. This Agreement may be enforced by Network Provider or City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the Agreement thereafter. 9. If any provision contained in this Agreement is held unconstitutional, invalid or unenforceable, then the remaining provisions shall be deemed severable and shall remain in full force and effect. 10. This Agreement shall be governed by the law of the State of Texas and construed in conformity with the provisions of Texas Local Government Code, Chapter 284. Venue shall lie in Shepherd, San Jacinto County, Texas. IN WITNESS WHEREOF, the parties have signed and executed this Agreement effective as of the date first set forth above. CITY OF BEAUMONT, TEXAS Dated: Mayor ATTEST: City Secretary NETWORK PROVIDER: Signature of Authorized Officer Dated: Title of Authorized Officer Page 3 of 3