From
Megan Mahan
Title
Ordinance amending the Code of Ordinances, Chapter 23 "Streets, Alleys, Sidewalks, Easements and Other Public Ways," by adding Section 23-60 Pertaining to Deployment of Network Nodes in the City Right-of-Way and Adopting a Design Manual
Presenter
Megan Mahan, Assistant City Attorney
Recommended Action
Approve
Analysis
The State Legislature adopted a new chapter to the Local Government Code which governs the deployment of "small cells" in the City's Right-of-Way. This is a type of telecommunications equipment that is intended to increase cell phone reception and it is mounted on a pole. LGC Chapter 284 allows the City to adopt a Design Manual and certain fees, so long as it is consistent with state law. The Design Manual and ordinance must be adopted prior to September 1 in order to be in an effect at the time Chapter 284 becomes effective.
The Development Committee was generally briefed on this ordinance and Design Manual on July 17, 2017 and once a draft was completed, it was emailed to the Committee for their review.
Financial Consideration
The City’s Application fees are as follows: $500 per application covering up to five network nodes, $250 for each additional network node per application that is located on a City-owned pole, and $100 for each additional network node per application that is not located on a City-owned pole.
A Network Provider must also pay $250 annual per Network Node. If a provider wishes to collocate on a City pole, they must pay an additional $20 annually per network node. There is also a possibility that a provider may have to pay $28 per month per Node as a transport facility fee, depending on how it installs its backhaul.
Body
AN ORDINANCE OF THE CITY OF GRAND PRAIRIE, AMENDING THE CODE OF ORDINANCES, CHAPTER 23, "STREETS, ALLEYS, SIDEWALKS, EASEMENTS AND OTHER PUBLIC WAYS," BY ADDING SECTION 23-60 PERTAINING TO DEPLOYMENT OF NETWORK NODES IN THE CITY RIGHT OF WAY AND ADOPTING A DESIGN MANUAL; PROVIDING A CUMULATIVE CLAUSE, A PENALTY CLAUSE AND A SAVINGS CLAUSE; AND TO BECOME EFFECTIVE UPON PASSAGE, APPROVAL, AND PUBLICATION
WHEREAS, the City of Grand Prairie, 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, Loc. Gov. Code, Chapter 284 allows certain wireless Network Providers to install their wireless facilities in the public rights-of-way; and
WHEREAS, 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 this Ordinance and accompanying Design Manual 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; and
WHEREAS, it is appropriate for the City of Grand Prairie to establish application fees such that they recover the approximate costs of the program and are therefore appropriate for applicants that develop and build within the City;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GRAND PRAIRIE, TEXAS:
SECTION 1. That the provisions of Section 23-60 of the Code of Ordinances will hereby be added as follows:
Section 23-60. Deployment of Network Nodes in Public Right of Way
(a) In addition to the general Right of Way regulations established in the Code of Ordinances and the Unified Development Code, the City hereby adopts additional restrictions and requirements for the deployment of the telecommunications equipment governed by Local Government Code Chapter 284. Any capitalized definitions shall have the meanings assigned in Tx. Loc. Gov. Code, Sec. 284.002 or the City of Grand Prairie Network Nodes Design Manual.
(b) The rules and requirements of the City of Grand Prairie Network Nodes Design Manual (hereinafter “Design Manual”), incorporated herein as if set out in full, as hereinafter amended, is hereby adopted. One (1) copy of such Design Manual is incorporated herein by reference and shall have been filed for permanent record and inspection in the office of the City Secretary and shall be posted on the City’s public website.
(c) Administrative Hearing - Request for Exemption
i. Should any Network Provider utilizing or proposing to utilize the right-of-way under this Ordinance desire to request an exemption from a specific standard set forth in this Ordinance or in the Design Manual, the person may request an Administrative Hearing before the Zoning Board of Adjustment. This Board shall act as the Board of Appeals for a Request for Exemption under this Chapter.
ii. Any person requesting an exemption from any of the requirements shall file such a request with the City Manager within fifteen (15) calendar days from the time that need for an exemption arose. If an exemption is requested prior to construction, the request should be submitted prior to filing for a permit.
iii. An exemption shall only be granted if:
1. Such exemption is not contrary to the public interest;
2. Such exemption will not increase the burden on the right-of-way or other right-of-way users;
3. Such exemption shall not increase the right-of-way management or administrative duties for city staff;
4. The exemption shall fit within the spirit of this Article; and
5. The application of the ordinance in the particular circumstances would create an unnecessary hardship.
iv. It shall take an affirmative vote of seven (7) members of the Board to grant the exemption.
(d) Any amendments to the Design Manual must have an effective date of a date certain and be posted online for a minimum of 30 days prior to the effective date. Placement or Modification of Micro Network Node, Network Node, Node Support Pole and related equipment shall comply with the City’s Design Manual at the time the Permit for installation or Modification is approved until such time that the Network Node or Pole has been Modified, abandoned or removed.
(e) The City Manager or designee is authorized to enter into an agreement for the use of municipally owned Service Poles without any further action by City Council. The terms of this pole attachment agreement shall have nondiscriminatory terms and conditions, and shall require an industry standard pole load analysis.
(f) A Network Provider shall additionally comply with the City’s Code of Ordinances and the Unified Development Code except where in conflict with this Ordinance, the Design Manual or Local Government Code Chapter 284, Subchapter C.
(g) Except when clearly preempted by state law, the City’s authorization or agreement to use the Rights-of-Way shall be required. Nothing in this ordinance shall be considered to summarily grant authorization to any user. When any state law authorizing right-of-way use is struck down, pre-empted, declared to be invalid or void, in whole or in part, the user relying upon said law for authorization shall seek separate authorization or shall cease using the right-of-way.
(h) Size limits provided by state law are only applicable for so long as required by state law. If said state law is found to be repealed, struck down, pre-empted or invalid, in whole or in part, the standards required by the City shall control and such standards shall be subject to individualized review.
(i) Should a Network Provider request to install Network Nodes, Node Support Poles, or any related equipment in the City Rights-of-Way that has the same function or type of equipment but larger than the size limits provided by Local Government Code Chapter 284, said Provider shall obtain a franchise agreement with the City for the use of said Rights-of-Way.
(j) Network Provider shall pay the City the Ch. 284, Sec. 284.156 application fees contemporaneously with the submittal of the application for the permits. All fees are non-refundable.
(k) The City’s Application fees are as follows:
i. $500 per application covering up to five network nodes,
ii. $250 for each additional network node per application that is located on a City-owned pole, and
iii. $100 for each additional network node per application that is not located on a City-owned pole.
(l) The City’s Fees are as follows:
i. NETWORK NODE SITE ANNUAL RENTAL RATE:
1. Annual Network Node Rate. Network Provider shall pay the City annually $250 per Network Node site in accordance with Ch. 284., Sec. 284.053 (a) the Network Node Public Right-of-Way Rate for each Location for which Network Provider has obtained Permit(s) regardless of whether or not a Network Provider installs Network Nodes in the Public Right-of-Way. The annual Network Node Public Right-of-Way Rate is non-refundable.
2. Initial Annual Network Node Rate Pro Rated. The annual Network Node Public Right-of-Way Rate payment for the first year at any Location (“Initial Annual Network Node Payment”) begins accruing when the permit is issued and is due 30 days after Network Provider obtains a Permit to install or collocate a Network Node at the Location. The Initial Annual Network Node Payment shall be pro-rated for the months remaining in the calendar year after the permit issuance date.
3. Subsequent Years Annual Network Node Rate Due Date. The annual Network Node Public Right-of-Way Rate for every year after the Initial Annual Network Node Payment shall be paid in advance on or before December 31 of each calendar year for each Network Node in the Public Right-of-Way for the next calendar year period.
4. Annual Network Node Rate Adjustment. The City reserves the right to make periodic rate adjustments in its discretion and pursuant to Ch. 284, Sec. 284.054.
ii. COLLOCATION ATTACHMENT ON SERVICE POLE FEE:
1. Annual Collocation on Service Pole Attachment fee. Network Provider shall pay the City annually $20 for each Network Node Permitted to be Collocated on Service Pole in accordance with Ch. 284., Sec. 284.056 for each Location for which Network Provider has obtained Permit(s) to collocate a Network Node on a Service Pole regardless of whether or not a Network Provider collocates a Network Node on a Service Pole. Except as provided for in this Agreement, this fee is non-refundable.
2. Initial Annual Collocation on Service Pole Attachment Fee Pro Rated. The annual collocation on Service Pole attachment fee payment for the first year at any Location (“Initial Annual Collocation on Service Pole Attachment Fee Payment”) begins accruing when the permit is issued and is due 30 days after Network Provider obtains a Permit to install or collocate a Network Node at the Location. The Initial Annual Collocation on Service Pole Attachment Fee Payment shall be pro-rated for the months remaining in the calendar year after the permit issuance date.
3. Subsequent Years Annual Collocation on Service Pole Attachment Fee Due Date. The annual Collocation on Service Pole attachment fee for every year after the Initial Payment shall be paid in advance on or before December 31 of each calendar year for each Network Node in the Public Right-of-Way for the next calendar year period.
iii. TRANSPORT FACILITY FEE:
1. Transport Facility Fee Amount. When the Network Provider is installing its own transport facilities, the Network Provider shall pay to the City an amount equal to $28 per month 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. As an alternative to paying the Transport Facility Fee, the Network Provider may utilize the Alternative Verification Report option as described below.
2. The Transport Facility Fee is non-refundable. The Monthly Transport Facility Fee begins accruing when the permit is issued and is due in full December 31 of that year.
3. When the Network Provider is obtaining transport service from a person that is paying the City municipal fees to occupy the Public Right-of-Way that are the equivalent of not less than $28 per Network Node site per month, the Network Provider may utilize the Alternative Verification Report option as described below.
4. Alternative Verification Report. If Network Provider utilizes the Ch. 284., Sec. 284.055 (a) (2) option to obtain transport service from a person that is paying municipal fees to occupy the Public Right-of-Way or utilizes the Ch. 284, Sec. 284.055 (a) (1), option and install its own Transport Facilities and asserts that it has paid the City in an amount that is equivalent to or greater than the Transport Facility fee due for that year for the same and corresponding year that would have been due from the Network Provider to the City for the calendar year then:
(a) On or before December 31, the Provider will notify the City that it intends to utilize this Alternative Verification Report option.
(b) 30 days after the end of each calendar year the Network Provider shall provide to the City an Alternative Verification Report documenting those equivalent or greater payments to the City. The Verification Report shall be provided 30 days after the end of each calendar year that an actual and full payment is not made from the Network Provider to the City for the Transport Facility Fee payment.
(c) This Alternative Verification Report is to allow the City to verify that the annual payments due the City for Transfer Facilities for each Network Node Transfer Facility that the City has received from the Network Provider or from the Network Provider’s provider of Transport Facilities a payment to the City for that corresponding prior calendar year is equal to or exceeds the monthly aggregate per-node Transfer Facility compensation due to the City and Ch. 284., Sec. 284.055 (b) (2) for that same period.
(d) In the event the payment to the City that is asserted to be equal to or exceeding the monthly aggregate per-node Transfer Facility compensation due to the City was by a different named entity than the Network Provider, the Network Provider bears the burden to establish that the entity paying the City and the Network Provider is an Affiliate and that they are one and the same for purposes of a Chapter 284 Transfer Facility fee credit against the Monthly Transport Facility Fee.
(m) It is unlawful for any person, firm or corporation to violate the provisions or terms of this Ordinance or the Design Manual that is adopted by reference, and violators shall be subject to a penalty for each offense in accordance with section 1-8 of the Code of Ordinances of the City of Grand Prairie, or any civil or injunctive relief in a court of competent jurisdiction.
SECTION 2. Severability.
If any article, section, sub-section, sentence or phrase of this Ordinance should be held to be invalid for any reason whatsoever, such invalidity shall not affect the remaining portions of this Ordinance which shall remain in full force and effect and to this end the provisions of this Ordinance are declared to be severable.
SECTION 3. Cumulative Clause.
All ordinances or parts of ordinances not consistent or conflicting with the provisions of this Ordinance are hereby repealed. Provided that such repeal shall be only to the extent of such inconsistency and in all other respects this Ordinance shall be cumulative of other ordinances regulating and governing the subject matter covered in this Ordinance.
SECTION 4. Effective Date.
This ordinance shall become effective August 31, 2017 after its passage and publication as provided by law.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAND PRAIRIE, TEXAS, ON this the 15th day of AUGUST, 2017.