(a) 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 effects, 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 interference between them;
(8) Assist in scheduling common trenching and street cuts;
(9) Minimize street cuts; and
(10) Protect the safety, security, appearance, and condition of the public
rights-of-way.
(b) This article may be referred to as the “city public rights-of-way
management ordinance.”
(Ordinance 13-01-22A, sec. I, adopted 1/22/13)
This article applies to all persons that place facilities in,
under, on or over public rights-of-way. Compensation for use of the
public rights-of-way shall be paid in accordance with all applicable
law, including, but not limited to, cable and video service providers,
in accordance with the Federal Cable Act, 47 USC section 541, et seq.
and chapter 66 of the Texas Utilities Code; for certificated telecommunication
providers, chapter 283 of the Texas Local Government Code; for distributors
of natural gas or as otherwise applicable, Texas Tax Code section
182.025; and/or in accordance with Texas Civil Statute, Art. 1175(1),
all as applicable.
(Ordinance 13-01-22A, sec. II, adopted 1/22/13)
In this article the following words, terms and phrases shall
have the following meanings:
Cable or video service provider (or CVSP).
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 state public utilities commission to offer cable
or video service].
Certificated telecommunications provider (or CTP).
The same as defined in Texas Local Government 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 utilities commission
to offer local exchange telephone service].
City.
The City of Horseshoe Bay, Texas. As used throughout, the
term city also includes the designated agent of the city.
City manager.
The city manager of the city or the designee(s) of the city
manager
City property.
All city buildings, infrastructure, bridges, parks, golf
courses, parking lots and other real property that is not dedicated
for utility or street transportation purposes.
Direction of the city.
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.
Facilities.
Any and all of the wires, cables, fibers, duct spaces, manholes,
poles, 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.
Person.
A natural person (an individual), corporation, company, association,
partnership, firm, limited liability company, joint venture, joint
stock company or association, and other such entity.
Public rights-of-way.
The same as defined in Texas Local Government Code section
283.002(6) and Texas Utilities 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 shall also include, to the fullest extent
allowed by law, all commonly used property in the city over which
private entities have allowed city control and which is used for the
placement of facilities. The term does not include the airwaves above
a public right-of-way with regard to wireless telecommunications.
The term does not include city property.
(Ordinance 13-01-22A, sec. III,
adopted 1/22/13)
(a) Application.
(1) Any person seeking to place facilities on, under, in or over the
public rights-of-way, shall pay a construction permit application
fee as set forth in
appendix A of this code (except CTPs and CVSPs and their contractors
to the extent exempted by Texas Local Government Code, chapter 283
and Texas Utilities Code, chapter 66, respectively) and shall file
an application for such construction permit with the city manager
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.
(2) With such application, applicants shall submit to the city manager written applications identifying the applicant and all of 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
13.09.006(4) below.
(b) Any person, except a CTP and a 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 rights-of-way used, being typically either
on a gross receipts basis or on a 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 as of October 16, 2007
shall continue to operate under and comply with that grant (except
to the extent the police power 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 is terminated as otherwise provided for
in law.
(d) Prerequisites to issuance of construction permit.
Each
person desiring to place, reconstruct, or alter facilities in, under,
on or over the public rights-of-way, must register with the city.
In order for the city to know which person owns or has physical control
over facilities in the public rights-of-way within the city, each
such person who owns or has physical controls over facilities shall
register with the city and provide the following information at a
minimum:
(1) Person’s name, address, and telephone number(s); and
(2) A twenty-four (24) hour telephone number(s) to a contact person(s)
with decision-making authority for the person.
Each person shall update and keep current his/her registration
with the city at all times.
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(Ordinance 13-01-22A, sec. IV, adopted 1/22/13; Ordinance 2021-31 adopted 8/24/21)
(a) The city manager 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 city manager requires in the form and manner
reasonably prescribed by the city manager.
(c) The city manager shall report to the city council upon the determination
that a person has failed to comply with this article.
(Ordinance 13-01-22A, sec. V, adopted 1/22/13)
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, trenching, boring, 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, but are not limited to, the following:
(1) Prior to the commencement of any construction, a person shall furnish
the city accurate and complete information relating to the excavation,
trenching, boring, construction, installation, expansion, reconstruction,
relocation, alteration, removal, maintenance or repair of facilities
performed by the person in the public rights-of-way.
(2) A person shall be required to place certain facilities within the
public rights-of-way underground according to applicable city requirements.
(A) The undergrounding 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.
(B) Underground conduits and ducts shall be installed in the public rights-of-way
between the adjacent property line and the 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 or a driveway crossing to avoid motor vehicle interruptions.
(3) A person shall perform excavations, borings 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 may waive the requirement of trenchless technology if it determines
that the particular field conditions warrant a waiver. All excavations
and other construction in the public rights-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 suspended in any manner aboveground shall either be placed
on existing poles or equipment or be suspended at a height not less
than twenty-two (22) feet above ground level, unless otherwise approved
by the city manager, but in no event less than fifteen (15) feet,
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.
(4) Permit.
(A) Except as otherwise provided in subsection
(C) below, a person must obtain a permit, as reasonably required by applicable city codes, 72 hours prior to any excavation, construction, installation, expansion, reconstruction, relocation, alteration, removal, trenching, boring, maintenance or repair of the person’s facilities, which 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 the state that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations when required by state law.
(B) Bonding will be required as in subsection (12) below, and insurance as in section
13.09.008.
(C) A construction permit is not required for routine maintenance that
does not require excavation of the public rights-of-way and which
does not block traffic lanes or sidewalks during peak traffic periods
between 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:30 p.m. on weekdays,
or for more than two 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, under,
on or over any public right-of-way, except in an emergency as provided
for in subsection (10) 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
120 calendar days of issuance, the permit shall become invalid unless
extended by the city upon a showing of good cause. Upon expiration
of a permit, a person shall be required to obtain another permit pursuant
to the requirements of this article.
(D) A person shall furnish the city manager with construction plans and
maps using the standard format adopted by the city, including the
location and proposed routing of new construction or reconstruction
at least three (3) business days before beginning construction or
reconstruction that involves an alteration to the surface or subsurface
of the public rights-of-way, unless otherwise approved by the city
manager. 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, taking due consideration of the surrounding area and
alternative locations for the facilities and routing.
(E) These construction plans shall show all features within the public
rights-of-way that would affect the placement of the proposed facilities
such as, but 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 street light
poles; fire hydrants; driveways; curbs, inlets and drains; sidewalks,
wheelchair ramps; and trees and large shrubs. Drawings shall be drawn
to an appropriate scale of no larger than one (1) inch equals fifty
(50) feet using the standard format adopted by the city. State plan
coordinates shall be shown for bench marks, curblines, and structures.
Drawings shall show horizontal dimensions from the curbline and elevations.
If typicals 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.
(F) A person shall use its best efforts to coordinate joint trenching
or boring 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 persons construction time table. The
city may mandate such coordination to the fullest extent allowed by
law.
(G) To the extent known, plans for ongoing repair, maintenance, and improvements
which will request cutting into paved city roads or streets shall
be submitted to the city on an annual basis, no later than April 1
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 city manager each calendar
quarter to provide such plans to the extent known. Notwithstanding
anything contained herein to the contrary, the city will not approve
or issue a permit for the cutting into paved city roads or streets
unless there is an overriding emergency situation.
(H) Once a permit is issued, the city shall be notified in writing or
via e-mail or facsimile at least 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 3 ft. x 3 ft. in size)
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 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 shall
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 city manager grants prior approval.
All lane closures shall comply with the Texas Manual on Uniform Traffic-Control
Devices for Streets and Highways. Arrow boards will be required on
lane closures with all barricades, advance warning signs, and 36-inch
reflector cones placed according to the specifications of the city.
Excepting emergency conditions, 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 city manager 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 except for
emergencies, on Sunday’s or on holidays.
(K) A person is responsible for the workmanship and any damages by a
contractor or subcontractor.
(L) If additional poles and existing aerial utility routes 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 person may erect its own poles, with the prior consent
of the city.
(5) Repair and replacement.
(A) Within seven (7) days of completion of excavation, construction,
installation, expansion, trenching, boring, 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. Within fourteen (14) calendar
days after completion of work in the public rights-of-way, the person
shall permanently restore, replace, relay and/or repair 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 that has been excavated, altered or damaged
by reason of the excavation, construction, installation, expansion,
reconstruction, trenching, boring, 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, acceptable to the city, 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 city manager.
(B) Whenever a person shall disturb or destroy any right-of-way markers
or monuments, it shall restore the same within fourteen (14) days
after construction has ceased. A person shall furnish three 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 city manager for approval, no later than thirty (30) days after
construction has ceased.
(6) 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-day period, the city, at its option, 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, extend the five-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.
(7) Should the city manager reasonably determine, within one 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.
(8) Notwithstanding the foregoing in subsection
(7), if the city manager 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.
(9) If the city manager 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 city manager’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.
(10) Except in the case of imminent harm to property or people (“emergency
conditions”), a person shall not excavate the pavement of a
street or public rights-of-way without first complying with city requirements.
The city shall be notified as promptly as possible regarding work
performed under such emergency conditions, and the person shall comply
with the requirements of city standards and of this article for the
restoration, replacement or repair of the public rights-of-way.
(11) As-built drawings.
(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 as detailed below, but 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) A person shall furnish the city as-built drawings as follows: Drawings
shall show ownership of conduits, ducts, poles, cables, and any other
Facilities placed within the public rights-of-way. Drawings shall
be drawn to a scale of 1 in. equals 20 ft. on 24 in. x 36 in. sheets
and 1 in. equals 40 ft. on 11 in. x 17 in. sheets using the standard
format adopted by the city. 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 blacklined as-built drawings
on vellum or mylar to the city manager. State plane coordinates shall
be shown for bench marks, 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 October 16, 2007 and who have not provided as-built drawings
shall do so no later than 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.
(12) Except as to CVSPs to the extent modified by Texas Utilities Code,
chapter 66, the city manager 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 city manager 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, boring).
(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.
The city may, at its sole discretion, 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-year history of no claims, or damages to city property by the
city, or of prompt payment on such claims.
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(13) In determining whether any requirement under this section is unreasonable
or unfeasible, the city manager 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 burden.
(14) 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 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.
(Ordinance 13-01-22A, sec. VI, adopted 1/22/13)
(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 pipe
lines 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 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 has
been requested by a user the city manager may grant such request,
provided there is adequate space available and the requestor has demonstrated
the 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) If the city manager gives written notice, a person shall, at its
own expense, temporarily or permanently, remove, relocate, change
or alter the position of a person’s facilities that are in the
public rights-of-way within 120 days, except in circumstances that
require additional time as reasonably determined by the city based
upon information provided by the person. For projects expected to
take longer than 120 days to remove, relocate, change or alter, the
city manager will confer with the person before determining the alterations
to be required and the timing thereof. The city manager 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
city manager and a person may agree in writing to different timeframes
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 city manager 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 of no less than ten (10) 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 rearrangements. 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 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 area, 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 13-01-22A, sec. VII,
adopted 1/22/13)
(a) Except as to CVSPs to the extent modified by Texas Utilities Code,
chapter 66, a person shall obtain and maintain insurance in the amounts
reasonably prescribed by the city manager with an insurance company
licensed to do business in the state reasonably acceptable to the
city. A person shall furnish the city manager with proof of insurance
at the time of the request for construction permits. The city manager
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 or the person require adjustment of the coverage.
For purposes of this section, the city may 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 desires to self-insure 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 city manager to
accept such self-insurance coverage the person must:
(1) Demonstrate by written documentation that it has adequate financial
resources to be a self-insured entity as reasonably determined by
the city, based on financial information requested by and furnished
to the city; and
(2) Satisfy the city that there will be no greater risk of loss due to
self-insurance.
The city’s current insurance requirements are described
in exhibit “A” to the ordinance from which this section
derives.
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(b) A person shall furnish to the city manager, 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 30 days’ prior written notice to the city for cancellation,
non-renewal, or material change; and
(3) Provide that notice of claims shall be provided to the city manager
by certified mail.
(d) A person shall file and maintain proof of insurance with the city
manager. 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 and may 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 13-01-22A, sec. VIII,
adopted 1/22/13)
(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 city’s
property, streets, 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, but
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, but not limited to the
agents, officers and employees of the person, person’s subcontractors
and city, and 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.
(b) 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 of such suit or proceeding. The person shall promptly provide
a defense to any such suit or suits, including any appellate proceedings
brought in connection therewith, and pay as aforesaid, any final judgment
or judgments that may be rendered against the city by reason of such
damage suit. Upon failure of the person to comply with the provisions
of this article, after reasonable notice to the city, the city shall
have the right to defend the same and in addition 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.
(c) This indemnity provision shall not apply to any liability resulting
from the negligence of the city, its officers, employees, agents,
contractors, or subcontractors.
(d) The provisions of this indemnity are solely for the benefit of the
city and are not intended to create or grant any rights, contractual
or otherwise, to any other person or entity.
(e) To the fullest extent permitted by law, a person shall 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 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 13-01-22A, sec. IX, adopted 1/22/13)
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 or the State of Texas, subject to the city’s ongoing authority to adopt reasonable police power based regulations to manage its public rights-of-way, pursuant to sections
13.09.006 and
13.09.007 or as otherwise provided by law.
(Ordinance 13-01-22A, sec. XI, adopted 1/22/13)
The city may institute all appropriate legal action to prohibit
any person from using the public rights-of-way unless the person has
complied with the terms of this article.
(Ordinance 13-01-22A, sec. XII,
adopted 1/22/13)
Each construction permit application to use the public rights-of-way
shall contain, or have attached, the following:
“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), hereby agree to use the city’s
Rights-of-Way under the terms and conditions approved by the city
of Horseshoe Bay by City Public Rights-of-Way Management Ordinance.”
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(Ordinance 13-01-22A, sec. XIII,
adopted 1/22/13)