The purpose of this article is to:
(1)
Assist
in the management of facilities placed in, on or over the public rights-of-way
in order to minimize the congestion, inconvenience, deterioration,
visual impact and other adverse affects and the costs to the citizens
resulting from the placement of facilities within the public rights-of-way.
(2)
Govern
the use and occupancy of the public rights-of-way.
(3)
Assist
the city in its efforts to protect the public health, safety and welfare.
(4)
Conserve
the limited physical capacity of the public rights-of-way held in
public trust by the city.
(5)
Preserve
the physical integrity of the streets and highways.
(6)
Control
the orderly flow of vehicles and pedestrians.
(7)
Keep
track of the different entities using the public rights-of-way to
prevent the interference between them.
(8)
Assist
in scheduling common trenching and street cuts.
(9)
Protect
the safety, security, appearance and condition of the public rights-of-way.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
This article applies to all persons that place facilities in,
on or over public rights-of-way. Compensation for use of the public
rights-of-way shall be paid in accordance with all applicable state
or federal law, including, yet not limited to, cable providers, in
accordance with the Federal Cable Act, 47 USC section 541 et seq.;
for certificated telecommunications providers, chapter 283 of the
Texas Local Government Code; for distributors of natural gas or otherwise
applicable, Texas Tax Code section 182.025; and/or in accordance with
Tex. Civil Statutes art. 1175(1), all applicable, as are adopted and
may be amended.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
Means the same as defined in Texas Utilities Code, section
66.002(3) and (11) (any entity that has been issued a certificate
of franchise authority by the public utility commission of the state
to offer cable or video service).
The official proposed schedule of all future public projects
listed in order of construction priority together with cost estimates
and the anticipated means of financing each project as adopted by
the city council.
Means the same as defined in Tex. Loc. Gov’t Code section
283.002(2) (any entity that has been issued a certificate of convenience
and necessity, certificate of operating authority or service provider
certificate of operating authority by the state public utility commission
to offer local exchange telephone service), as it may be amended.
The territorial, corporate and geographic limits of the City
of Glenn Heights, Texas. As used throughout, the term “city”
also includes the designated agent of the city.
All city buildings, infrastructure, bridges, parks, golf
courses, parking lots and all other real property that is not dedicated
for utility or street transportation purposes.
All ordinances, laws, rules, resolutions and regulations
of the city that are not inconsistent with this article and that are
now in force or may hereafter be passed and adopted.
The city manager, director of municipal services (formerly
public works) or such director’s designated representative.
Any and all wires, cables, fibers, duct spaces, manholes,
poles, conduits, pipes, lines, conduits, underground and overhead
passageways and other equipment, structures, plant and appurtenances
and all associated physical equipment placed in, on or under the public
rights-of-way.
A natural person (an individual), corporation, company, association,
partnership, firm, limited liability company, joint venture, joint
stock company or association and other such legal entity.
Means the same as defined in Tex. Loc. Gov’t Code section
283.002(6), and Texas Utility Code, section 66.002(8), which includes
(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 the airwaves above a public
right-of-way with regard to wireless telecommunications.), as it may
be amended. The term does not include city property.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
(a)
Any
person seeking to place facilities on, in or over the public rights-of-way,
shall pay a five hundred dollar ($500.00) construction permit application
fee (except CTPs and CVSPs and their contractors to the extent exempted
by Tex. Loc. Gov’t Code, chapter 283 and Tex. Utilities Code
chapter 66), shall file an application for such construction permit
with the director and shall abide by the terms and provisions of this
article pertaining to use of the public rights-of-way. If there are
additional direct costs to the city in processing the applications,
the city may recover those from the applicant prior to the issuance
of the construction permit.
(1)
With such application, applicants shall submit to the director written applications identifying the applicant and all the applicant’s affiliates that may have physical control of facilities within the public rights-of-way, with a map of the proposed installations, general description of the services to be provided, a construction schedule and a general description of the effect on public rights-of-way as detailed in section 3.19.006(3) below.
(b)
Any
person, except a CTP or CVSP, prior to placing, reconstructing or
altering facilities in, on or over the public rights-of-way, must
obtain separate municipal authorization from the city, such as a license
agreement or franchise, as may be applicable. For use of the public
rights-of-way, all users of the public rights-of-way shall compensate
the city on the value of the public rights-of-way used, being typically
either on a gross receipts basis or linear foot basis, to the fullest
extent allowed by law.
(c)
Any
person 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 the grant (except
to the extent the police powers regulations in such grant are inconsistent
with this article, in which event, this article will control) until
the grant expires or until it is terminated by mutual agreement of
the city and the person, or it [is] terminated as otherwise provided
for in law.
(d)
Prerequisites to issuance of construction permit.
Each
person must register with the city. In order for the city to know
which person or persons owns or has physical control over facilities
in a public right-of-way within the city, each such person who owns
or has physical control over facilities shall register with the city
and provide the following information at a minimum:
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
(a)
The
director shall administer and enforce compliance with this article.
(b)
A
person shall report information related to the use of the public rights-of-way
that the director requires in the form and manner reasonably prescribed
by the director.
(c)
The
director shall report to the city council upon the determination that
a person has failed to comply with this article and the same shall
be subject to the penalty provisions provided herein for violation
of this article.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
A person is subject to reasonable police power regulation of
the city to manage its public rights-of-way in connection with the
excavation, construction, installation, expansion, reconstruction,
relocation, alteration, removal, maintenance or repair of facilities
in the public rights-of-way, pursuant to the city’s rights as
a custodian of public property based upon the city’s historic
rights under state and federal laws. Such regulations include, yet
are not limited to, the following:
(1)
At
the city’s request, a person shall furnish the city accurate
and complete information relating to the excavation, construction,
installation, expansion, reconstruction, relocation, alteration, removal,
maintenance or repair of facilities performed within the public rights-of-way
underground according to the applicable city requirements unless the
person makes a compelling demonstration that, in any specific instance,
this requirement is not reasonable, feasible or equally applicable
to other similar users of the public rights-of-way.
(A)
The underground placement of facilities is encouraged. In any event,
facilities shall be installed underground where existing utilities
are already underground. If there are no facilities in the public
rights-of-way, then the facilities shall be placed underground. The
utility owning the underground facilities shall make a reasonable
determination as to whether space is available to accommodate the
new facilities. A negative determination shall not relieve the person
of the responsibility to underground its facilities in underground
utility areas. To the degree reasonably feasible previously installed
aerial facilities shall be placed underground in concert, and on a
cost-sharing basis, with other utilities when such other utilities
convert from aerial to underground construction. All undergrounding
of facilities shall be at a depth of twenty-four feet (24') [sic]
or more unless otherwise directed by the city.
(B)
Underground conduits and ducts shall be installed in the public rights-of-way
between the adjacent property line and curbline unless otherwise directed
by the city.
(C)
Conduits and ducts shall be installed parallel with the curbline
and cross the public rights-of-way perpendicular to the public rights-of-way
centerline unless otherwise directed by the city.
(D)
Ducts and conduits shall be installed by trenchless excavation or
directional boring when placing these facilities under paved public
rights-of-way centerline unless otherwise directed by the city.
(2)
A
person shall perform excavations and other construction in the public
rights-of-way in accordance with all applicable city requirements
including the obligation to use trenchless technology whenever commercially
economical and practical and consistent with obligations on other
similar users of the public right-of-way. The city shall waive the
requirement of trenchless technology if it determines that, based
upon information provided to the city by the person, the particular
field conditions warrant a waiver. All excavations and other construction
in the public right-of-way shall be conducted so as to minimize interference
with the use of public and private property. Any plant or facility
placed within the public rights-of-way which is [shall be] suspended
at a height not less than twenty-two feet (22') above ground level,
unless otherwise approved by the director, yet not in the event less
than fifteen feet (15'), except to the extent state law controls.
A person shall follow all reasonable construction directions given
by the city in order to minimize any such interference.
(3)
A
person must obtain a permit, as reasonably required by applicable
city codes, including subsection (C) [(B)] of this section, at least
seventy-two (72) hours prior to excavation, construction, installation,
expansion, reconstruction, relocation, alteration, removal, maintenance
or repair of the person’s facilities, which seventy-two (72)
hours may be waived or altered by the city for good cause shown by
the applicant. All permit applications shall be accompanied by the
certification of a professional engineer licensed in Texas that the
drawings, plans and specifications submitted with the application
comply with applicable technical codes, rules and regulations when
required by state law.
(A)
Bonding will be required as in subsection (12) [(11)] below and insurance as in section 3.19.008 herein.
(B)
A construction permit is not required for routine maintenance that
does not require excavation of the public rights-of-way or which does
not block traffic lanes or sidewalks during peak traffic periods between
7:00 a.m. to 9:00 p.m. and 4:00 p.m. to 6:30 p.m. on weekdays or for
more than two (2) hours during any non-peak traffic period. The failure
of the person to request and obtain a permit from the city prior to
performing any of the above-listed activities in, on or over any public
right-of-way, except in an emergency as provided for in subsection
(10) [(9)] below, will subject the person to a stop-work order from
the city and enforcement action pursuant to the city’s Code
of Ordinances. If the person fails to act upon any permit within ninety
(90) calendar days of issuance, the permit shall become invalid unless
extended by the city upon showing of a good cause. Upon expiration
of a permit, a person shall be required to obtain another permit pursuant
to the requirements of this article.
(C)
At least forty-five (45) days prior to submission of an application
for a construction permit for a capital improvements project, a person
shall furnish the director with construction plans and maps using
the standard format adopted by the department of municipal services,
showing the location and plans and specifications for a permit for
construction of a capital improvements project [and a permit shall
not be issued] until all required plans and drawings have been approved
in writing by the city, which approval will not be unreasonably withheld,
taking due consideration of the surrounding area and alternative locations
for the facilities and routing.
(D)
At least three (3) days before beginning excavation, construction,
installation, expansion, reconstruction, relocation, alteration, removal,
maintenance or repair of facilities for a project that involves an
alteration to the surface or subsurface of the public rights-of-way
but is not a capital improvements project, a person shall submit an
application for a permit for the standard format adopted by the department
of municipal services, showing the location and proposed routing of
the excavation, construction, installation, expansion, reconstruction,
relocation, alteration, removal, maintenance or repair unless otherwise
approved by the director. A person may not begin construction until
the location of new facilities and proposed routing of the new construction
or reconstruction and all required plans and drawings have been approved
in writing by the city and a permit has been issued, which issuance
will not be unreasonably withheld, taking due consideration of the
surrounding area and alternative locations for the facilities and
routing.
(E)
Construction plans and maps shall show all features within the public
rights-of-way that would affect the placement of the proposed facilities
such as, yet not limited to, existing underground and aerial wires
or conduits, ducts, poles, wires, pipes, sewerage, water lines and
cables as well as their ownership; traffic signal and streetlight
poles; fire hydrants; driveways; curbs, inlets and drains; sidewalk;
wheelchair ramps; and trees and large shrubs. Drawings shall be drawn
to an appropriate scale of no larger than one inch (1") equals fifty
feet (50') using the standard formats adopted by the municipal services
department. State plane coordinates shall be shown for benchmarks,
curblines and elevations. If typical are used, they shall reference
the station numbers for which they are to be applied. Traffic-control
plans shall be in conformance with the latest revision of the Texas
Manual on Uniform Traffic Control Devices (MUTCD).
(F)
A person shall use its best efforts to coordinate joint trenching
with any other persons and/or public utilities which may be constructed
in and along the same public rights-of-way in a time frame reasonably
similar to the person’s construction timetable. The department
of municipal services may mandate such coordination to the fullest
extent allowed by law.
(G)
To the extent known, plans for ongoing repair, maintenance and improvements
which involve cutting into paved city roads and streets shall be submitted
to the director of municipal services on an annual basis, no later
than April of each year and updated based upon any changes. This does
not require any proprietary information such as equipment or customer-specific
information. Such information may be designated confidential and to
the extent allowed by law will be kept confidential by the city. Alternatively,
a person may meet with the appropriate representative of municipal
services each calendar quarter to provide such plans to the extent
known.
(H)
Once a permit is issued, the department of municipal services shall
be notified at least twenty-four (24) hours in advance that construction
in the public rights-of-way is ready to proceed by a person or its
representative. Information signs (at least three feet (3') by three
feet (3') in size (3' x 3') stating the identity of the person doing
the work, their telephone number and the person’s identity and
telephone number shall be placed at the location where construction
is to occur forty-eight (48) hours prior to the beginning of work
in the public rights-of-way and shall continue to be posted at the
location during the entire time the work is occurring and/or until
permanent repairs are completed.
(I)
Erosion control measures and advance warning signs, markers, cones
and barricades must be in place before work begins. A person may be
required to show proof of engineered plans relating to stormwater
and erosion when applicable or a letter stating a person is not required
to obtain such plans. A person shall be responsible for stormwater
management erosion control that complies with city, state and federal
guidelines as applicable.
(J)
Lane closures on major thoroughfares will be limited to between 9:00
a.m. and 4:00 p.m. unless the department of municipal services grants
prior approval. Arrow boards will be required on lane closures with
all barricades, advance warning signs and thirty-six inch (36") reflector
cones placed according to the specification of the city. Working hours
in the public rights-of-way are limited to the hours between 7:00
a.m. to 6:00 p.m. Monday through Friday. Work to be performed after
6:00 p.m. on Monday through Friday or on Saturday must be approved
by the department of municipal services in advance. Directional boring
is permitted only Monday through Friday 7:00 a.m. to 6:00 p.m. No
work in the public rights-of-way shall be performed exempt [except]
for emergencies on Sundays or on holidays.
(K)
Without affecting the legal relationship between a person and its
contractors, a person is responsible for the workmanship and any damages
by a contractor or subcontractor.
(L)
If additional poles and [on an] existing aerial utility route are
required, a person shall negotiate with the utility company for the
installation of the needed poles in accordance with existing statutes
and regulations. However, if the utility will not install new poles
on a reasonable basis, then a person may erect its own poles.
(4)
(A)
Within fourteen (14) days of complete excavation, construction, installation,expansion,
reconstruction, relocation, alteration, removal, maintenance or repair
of facilities or other work in the public rights-of-way, a person
shall temporarily restore and repair the public rights-of-way in accordance
with applicable sections of the Code of Ordinances of the city. Within
thirty (30) calendar days after completion of work in the public rights-of-way,
the person shall permanently restore, replace, re-lay and/or repair
the surface, base, curbs, drainage systems, irrigation systems, landscape
treatment or other city facilities and infrastructure located on,
in and under any public rights-of-way that has been excavated, altered
or damaged by reason of the excavation, construction, installation,
expansion, reconstruction, relocation, alteration, removal,maintenance
or repair of the person’s facilities in accordance with existing
standards of the city in effect at the time of the work. Upon a showing
of good cause, the city may at its sole discretion extend the time
for restoration and repair of the public rights-of-way under this
subsection. Unless the person provides a recent dated photograph or
a videotape of the public rights-of-way before the construction, the
condition of the public rights-of-way before construction should be
presumed in good condition, subject only to reasonable wear and tear
as determined by the director.
(B)
Whenever a person shall disturb or destroy any right-of-way markers
or monuments, it shall restore the same within thirty (30) days after
construction has ceased. A person shall furnish three (3) sets of
drawings, blueline or blackline, detailing the restored monumentation.
State plane coordinates shall be shown for all monumentation (existing
or restored). The drawings shall be signed (original signature), sealed
and certified by a registered professional land surveyor and delivered
to the director of municipal services for approval no later than thirty
(30) days after construction has ceased.
(5)
Upon
failure of a person to perform any such repair or replacement work
after five (5) days’ written notice has been given by the city
to the person, and in the event repairs have not been initiated during
such five (5) day period, the city may repair such portion of the
public rights-of-way as may have been disturbed by the person, its
contractors or agents. The city may, at its discretion for good cause,
alter the five (5) day period. Upon receipt of an invoice from the
city, the person shall reimburse the city for the costs so incurred
within thirty (30) calendar days from the date of the city invoice.
(6)
Should
the director reasonably determine within one (1) year from the date
of the completion of the repair work that the surface, base, curbs,
drainage systems, irrigation systems, landscape treatment or other
city facilities and infrastructure located on, in or under any public
rights-of-way requires additional restoration, replacement or repair
work to meet existing standards of the city, a person shall perform
such additional restoration, replacement or repair work to the satisfaction
of the city, subject to all city remedies as provided herein.
(7)
Notwithstanding the foregoing in subsection (6), if the director determines that the failure of a person to properly repair or restore the public rights-of-way constitutes a safety hazard to the public, the city may undertake emergency repairs and restoration efforts after emergency notice has been provided to the extent reasonable under the circumstances and the person failed to respond within a reasonable time specified by the city. Upon receipt of an invoice from the city a person shall promptly reimburse the city for all costs incurred by the city within thirty (30) calendar days from the date of the city invoice.
(8)
If
the director declares an emergency with regard to the health and safety
of the citizens and requests by written notice the removal or abatement
of facilities, a person shall remove or abate the person’s facilities
by the deadline provided in the director’s request. The person
and the city shall cooperate to the extent possible to assure continuity
of service. If the person, after notice, fails or refuses to act,
the city may remove or abate the facility at the sole cost and expense
of the person without paying compensation to the person and without
the city incurring liability for damages.
(9)
Except
in the case of customer service interruptions and imminent harm to
property and persons (“emergency conditions”), a person
may not excavate the pavement of a street or public rights-of-way
without first complying with city requirements. The city department
of municipal services shall be notified as promptly as possible regarding
work performed under such emergency conditions and the persons shall
comply with the requirements of city standards and of this article
for restoration, replacement or repair of the public rights-of-way.
Any emergency repairs requiring saw cuts shall be performed in accordance
with standards established by the director.
(10)
(A)
Within one hundred twenty (120) days of completion of each new permitted
section of a person’s facilities, the person shall supply the
city with a complete set of “as built” drawings for the
segment in a format used in the ordinary course of the person’s
business to the extent they are prepared in the ordinary course of
business, excluding customer-specific, proprietary or confidential
information and as reasonably prescribed by the city as is described
below, and as may be allowed by law. Such “as built” maps
may be corrected and revised construction plans. In the event the
facilities were built as specified in the originally submitted plans,
the person may certify to the city that there were no changes. The
city may, at its discretion, accept in lieu of “as built”
drawings any reasonable alternative which provides adequate information
as to the vertical depth, linear location and size of facilities in
the public rights-of-way which may include direct on-line access to
such information.
(B)
To the extent the person’s customary as-built format will conform
without economic impracticability, a person shall furnish the city “as-built”
drawings as follows: Drawings shall show ownership of conduits, ducts,
poles, cables and other facilities placed within the public rights-of-way.
Drawings shall be drawn to a scale of one inch (1") equals twenty
feet (20') on twenty-four inch (24") by thirty-six inch (36") sheets
(24 x 36) and one inch (1") equals forty feet (40') on eleven inch
(11") by seventeen inch (17") sheets (11 x 17) using the standard
format adopted by the department of municipal services. A person shall
provide one set of all such drawings on diskette in Autocad or Microstation
format drawn to full scale and one set of blue- or black-lined “as
built” drawings on vellum or mylar to the director of the department
of municipal services. State plane coordinates shall be shown for
benchmarks, curblines and structures. Drawings shall show horizontal
dimensions from the curbline and elevations.
(C)
All persons who have facilities in the public rights-of-way existing
as of the date of this article and who have not provided “as
built” drawings shall do so no later than sixty (60) days after
the passage of this article, unless the person demonstrates an economic
impracticality to provide such “as built” drawings in
the above format. The city may waive such “as built” maps
as to existing facilities for good cause.
(D)
If “as built” drawings submitted under this section include
information expressly designated by the person as a trade secret or
other confidential proprietary information protected from disclosure
by state or federal law, the director may not disclose that information
to the public without the consent of the person, unless otherwise
required by an opinion of the attorney general pursuant to the Texas
Public Information Act, as amended, or by a court having jurisdiction
of the matter pursuant to applicable law or as otherwise required
by law. This subsection may not be construed to authorize a person
to designate all matters as confidential or as trade secrets.
(11)
Except as to CVSPs to the extent modified by the Texas Utility Code,
chapter 66, the director shall require reasonable bonding requirements
of a person, as are required of other entities that place facilities
in the public rights-of-way. Such bonding amounts will be reasonably
determined by the director depending on several factors as to public
safety and risk of harm to persons and property. Such factors include:
(A)
The nature of the construction project (overhead, trenchless, open
trench);
(B)
Type of facility (gas, electric, water, telecommunications, cable,
fiber);
(C)
Past construction history of person in the city as to any damage
claims, repairs and timeliness of construction.
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The city may in a non-discriminatory manner waive or reduce
the amount of the bond in the event the person provides written documentation
as to reserves available to compensate the city for damages and has
a two (2) year history of no claims or damages to city property by
the city or of prompt payment on such claims.
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(12)
In determining whether any requirement under this section is unreasonable
or unfeasible, the director or his/her designee shall consider, among
other things, whether the requirement would subject the person or
persons to an unreasonable increase in risk or service interruption,
or to an unreasonable increase in liability for accidents, or to an
unreasonable delay in construction or in availability of its services
or to any other unreasonable technical or economic burden.
(13)
A person issued a permit pursuant to this article shall, at all times,
employ the standard of care attendant to the risks involved to prevent
actions, failures and accidents which may cause damage, injury or
nuisance to persons, the public, the facilities or of other persons,
or to any city structures or structures owned by other persons located
in the public rights-of-way. A person issued a permit pursuant to
this article shall observe all federal and state statutes and regulations
and all applicable city ordinances and safety codes. A person issued
a permit pursuant to this article shall keep and maintain its facilities
in a safe and suitable condition and in good order and repair sufficient
for its intended purpose.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
(a)
In
the exercise of governmental functions, the city has first priority
over all other users of the public rights-of-way. The city reserves
the right to lay sewer, gas, water facilities and any other pipelines
or cables and conduits, and to do underground and overhead work and
have attachments and require restructuring or changes in the city’s
aerial facilities in, across, along, over or under a public street,
alley or public rights-of-way that may be occupied by a person and
to change the curb, route or grade of sidewalks and streets, to the
fullest extent allowed by law.
(b)
The
city shall assign the location in or over the public rights-of-way
among competing users of the public rights-of-way with due consideration
to the public health and safety considerations of each user type,
and to the extent that the city can demonstrate that there is limited
space available for additional users, may limit new users, as allowed
under state or federal law. As a priority, each user of the public
rights-of-way will be allowed one alignment on one side of the street
for placement of its facilities, provided there is adequate space
available. In the event an additional alignment(s) or both sides of
the street have been requested by a user, the director will grant
such request, provided there is adequate space available and the requestor
has demonstrated the financial or technical impracticability of the
use of the requestor’s single alignment or use of only one side
of the street.
(c)
If
the city authorizes abutting landowners to occupy space under the
surface of any public street, alley, or public rights-of-way, the
grant to an abutting landowner shall be subject to the rights of the
previously authorized user of the public rights-of-way.
(d)
(1)
If the director gives written notice, a person shall, at its own
expense, temporarily or permanently, remove, relocate, change or alter
the position of person’s facilities that are in the public rights-of-way
within one hundred twenty (120) days, except in circumstances that
require additional time as reasonably determined by the city based
upon information provided by the person.
(2)
For projects expected to take longer than one hundred twenty (120)
days to remove, relocate, change or alter, the director will confer
with the person before determining the alterations to be required
and the timing thereof. The director shall give notice whenever the
city has determined that removal, relocation, change or alteration
is reasonably necessary for the construction, operation, repair, maintenance
or installation of a city governmental public improvement in the public
rights-of-way. This section shall not be construed to prevent a person’s
recovery of the cost of relocation or removal from private third parties
who initiate the request for relocation or removal, nor shall it be
required if improvements are solely for beautification purposes without
prior joint deliberation and agreement with the person. On a non-discriminatory
basis, the director and a person may agree in writing to different
time frames than those provided above if circumstances reasonably
warrant such a change.
(e)
If
the person fails to relocate facilities in the time allowed by the
director in this section, the person may be subject to liability to
the city for such delay and as set forth in the city codes or ordinances,
now or hereafter enacted.
(f)
A
person may trim trees or other vegetation in or over the public rights-of-way
as needed for the safe and reliable operation, use and maintenance
of its facilities. All tree trimming shall be performed in accordance
with standards promulgated by the city. Should the person, its contractor
or agent, fail to remove such trimmings within twenty-four (24) hours,
the city may remove the trimmings or have them removed, and upon receipt
of a bill from the city, the person shall promptly reimburse the city
for all costs incurred within thirty (30) working days. A person shall
not be responsible for tree trimming or removal, except as to the
trimming required to construct, maintain or restore utility service.
(g)
A
person shall temporarily remove, raise or lower its aerial facilities
to permit the moving of houses or other bulky structures, if the requesting
party provides written notice to [such person] no less than five (5)
days, except for good cause shown. The expense of these temporary
rearrangements shall be paid by the party or parties requesting and
benefiting from the temporary arrangements. The person may require
prepayment or prior posting of a bond from the party requesting the
temporary move.
(h)
In
the event a person’s use of the facilities is discontinued,
the person shall be notified by the city and thereafter shall forthwith
remove its facilities therefrom unless specifically permitted to continue
the same, and on the removal thereof shall restore, repair or reconstruct
the street area where such removal has occurred, and place the street
area where such removal has occurred in the condition prior to the
removal, as determined by the city. In the event of failure, neglect
or refusal of the person, after thirty (30) days’ notice by
the director to repair, improve or maintain such street portion, the
city may do such work or cause it to be done, and the reasonable cost
thereof as determined by the city shall be paid by the person and
collection may be made by court action or otherwise.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
(a)
Except
as to CVSPs to the extent modified by Texas Utility Code, chapter
66, a person shall obtain and maintain insurance in the amounts reasonably
prescribed by the director with an insurance company licensed to do
business in the state and acceptable to the city. A person shall furnish
the director with proof of insurance at the time of the request for
construction permits. The director reserves the right to review the
insurance requirements and to reasonably adjust insurance coverage
and limits when the director determines that changes in statutory
law, court decisions or the claims history of the industry or the
person may require adjustment for coverage. For purposes of this section,
the city will accept certificates of self-insurance issued by the
state or letters written by the person in those instances where the
state does not issue such letters, and in all such instances, the
person that self-insures shall provide written documentation as to
substantially the same coverage, claims process and defense to the
city as would be provided by an insurance carrier as required herein,
all as may be detailed in the information provided to the city. However,
for the director to accept such self-insurance coverage the person
must demonstrate by written information that it has adequate financial
information requested by and furnished to the city. The city’s
insurance requirements are described in exhibit A attached to Ordinance
O-860-07.
(b)
A
person shall furnish to the director, at no cost to the city, copies
of certificates of insurance evidencing the coverage required by this
section. The city may request the deletion, revision or modification
of particular policy terms, conditions, limitations or exclusions,
unless the policy provisions are established by a law or regulation
binding the city, the person or the underwriter. If the city requests
a deletion, revision or modification, a person shall exercise reasonable
efforts to pay for and to accomplish the change.
(c)
The insurance certificate required under subsection (b) shall:
(1)
Name the city and its officers, employees, board members and elected
representatives as additional insureds for all applicable coverage;
(2)
Provide for thirty (30) days’ written notice to the city for
cancellation, non-renewal or material change; and
(3)
Provide that written notice of claims shall be provided to the director
by certified mail.
(d)
A
person shall file and maintain proof of insurance with the director.
An insurance certificate obtained in compliance with this section
is subject to city attorney approval. The city may require the certificate
to be changed to reflect changing liability limits. A person shall
immediately advise the city attorney of actual or potential litigation
that may develop or affect an existing carrier’s obligation
to defend and indemnify.
(e)
An
insurer has no right of recovery against the city. The required insurance
policies shall protect the person and the city. The insurance shall
be primary coverage for losses covered by the policies.
(f)
The
policy clause “Other Insurance” shall not apply to the
city if the city is an insured under the policy.
(g)
A
person shall pay premiums and assessments for the insurance required
under this section. A company which issues an insurance policy has
no recourse against the city for payment of a premium or assessment.
Insurance policies obtained by a person 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.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
(a)
Except
as to CTPs and CVSPs each person placing facilities in the public
rights-of-way shall agree to promptly defend, indemnify and hold the
city harmless from and against all damages, costs, losses or expenses:
(1)
For the repair, replacement or restoration of the city’s property,
equipment, materials, structures and facilities which are damaged,
destroyed or found to be defective as a result of the person’s
acts or omissions;
(2)
From and against any and all claims, demands, suits, causes of action
and judgments for:
(A)
Damage to or loss of the property of any person (including yet not
limited to the person, its agents, officers, employees and subcontractors,
city’s agents, officers and employees and third parties); and/or
(B)
Death, bodily injury, illness, disease, loss of services, or loss
of income or wages to any person (including yet not limited to the
agents, officers and employees of the person, person’s subcontractors
and city third parties), arising out of, incident to, concerning or
resulting from the negligent or willful act or omissions of the person,
its agents, employees and/or subcontractors, in the performance of
activities pursuant to or authorized under this article.
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Upon commencement of any suit, proceeding at law or in equity
against the city relating to or covering any matter covered by this
indemnity, to indemnify and hold the city harmless, or to pay said
final judgment and costs, as the case may be, the city shall give
the person reasonable notice to the city, [sic] the city shall have
the right to defend the same and in addition of [to] being reimbursed
for any such judgment that may be rendered against the city, together
with all court costs incurred therein, the person shall promptly reimburse
the city for attorney’s fees, including those employed by the
city in such case or cases, as well as all expenses incurred by the
city by reason of undertaking the defense of such suit or suits, whether
such suit or suits are successfully defended, settled, compromised
or fully adjudicated against the city.
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(b)
This
indemnity provision shall not apply to any liability resulting from
the negligence of the city, its officers, employees, agents, contractors
or subcontractors.
(c)
The
provisions of this indemnity are solely for the benefit of the city
and is not intended to create or grant any rights, contractual or
otherwise, to any person or entity.
(d)
To
the fullest extent permitted by law, a person shall not [sic] pay
all expenses incurred by the city in defending itself with regard
to all damages and penalties provided in this article. These expenses
shall include all out-of-pocket expenses such as attorney’s
fees, and shall also include the reasonable value of any services
rendered by any employees of the city. In the event the city is compelled
to undertake the defense of any such suit by reason of a person’s
failure to perform as hereinabove provided, the city shall have the
full right and authority to make or enter into any settlement or compromise
of such adjudication as the city council shall deem in the best interest
of the city, this without the prior approval or consent of the person
with respect to the terms of such compromise or settlement.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
This article shall be construed in accordance with the city code(s) in effect on the date of passage of this article to the extent that such code(s) are not in conflict with or in violation of the constitution and laws of the United States of the state, subject to the city’s ongoing authority to adopt reasonable police power based regulations to manage its public rights-of-way, pursuant to sections 3.19.006 and 3.19.007, herein, or as otherwise provided by law.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
(a)
The
city may institute all appropriate legal action to prohibit any person
from knowingly utilizing the public rights-of-way unless the person
has complied with the provisions of this article.
(b)
A
person commits a class C misdemeanor offense if that person knowingly
commences or continues with the construction or installation of facilities
within the public rights-of-way, except as permitted by this article
or state law, as it exists or as it may be amended. Each day that
a person continues with the construction or installation of facilities
or knowingly engages in maintenance that requires excavation or blocks
the public rights-of-way in violation of this article constitutes
a separate offense.
(Ordinance O-860-07; Ordinance O-860-07 adopted 11/19/07)
Each construction permit application to use the public rights-of-way
shall contain or have attached, the following:
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By this application for a construction permit to
use the Public Rights-Of-Way, I, as the lawful representative of __________
(not the contractor but a representative of the Facility owner with
authority to bind the owner(s)), hereby agree to use the City’s
Public Rights-Of-Way Management Ordinance.
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Name
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Title
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Date
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(Ordinance O-860-07 adopted 11/19/07)
