No person shall commence or continue with the construction,
installation, or operation of facilities within rights-of-way and
publicly dedicated easements in the city except as provided by the
ordinances of the city and the directives of the public works department.
All construction activity in city rights-of-way and easements will
be in accordance with this chapter.
(1)
Registration
and construction permits.
a.
Registration.
In order to protect the public health, safety and welfare, all users of the city rights-of-way and easements will register with the city. Registration and permits will be issued in the name of the person who will own the facilities. Registration must be renewed every five years. For utilities with a current franchise or license, the franchise or license will be evidence of renewal. If a registration is not renewed and subject to 60-day written notification to the owner, in addition to constituting a violation hereof for which the user shall be subject to citation and fine as provided in subsection (9) below, the city shall cease to issue permits to such user until the registration is renewed. When any information provided for the registration changes, the user will inform the city of the change no more than 30 days after the date the change is made. Information provided in applications for construction permits shall constitute notice of any changes in the registration information for the user. Registration shall include:
1.
The
name of the user of the right-of-way;
2.
The
names, addresses, and telephone numbers of people who will be contact
person(s) for the user;
3.
The
name, address, and telephone number of any contractor or subcontractor,
if known, who will be working in the right-of-way on behalf of the
user;
4.
The
name(s) and telephone number of an emergency contact who shall be
available 24 hours a day;
5.
Proof
of insurance and bonds;
(i)
An applicant shall obtain and maintain insurance in the following
amounts with a company authorized to do business in the State of Texas
acceptable to the city:
|
TYPE OF INSURANCE
|
LIMIT
(in $ millions)
|
|---|---|
|
General Liability (including contractural liability) written
on an occurrence basis
|
• General aggregate 2
|
|
• Prod./Comp. Op. Agg. 2
| |
|
• Personal & Adv. Injury 1
| |
|
• Each Occurrence 1
| |
|
Automobile Liability, including any auto, hired autos and nonowned
autos
|
• Combined single limit 1
|
|
Excess liability, umbrella form
|
• Each occurrence 2
|
|
• Aggregate 2
| |
|
Worker’s compensation and employer’s liability
|
• Each accident .5
|
|
• Disease-policy limit .5
| |
|
• Disease-Each employee .5
|
(ii)
The city reserves the right to review the insurance requirements
during the effective period of any franchise or municipal consent
agreement, 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 provider require
adjustment of the coverage. For purposes of this section, the city
will accept certificates of self-insurance issued by the State of
Texas or letters written by the applicant in those instances where
the state does not issue such letters, which provide the same coverage
required herein. However, for the city to accept such letters, the
applicant must demonstrate by written information 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.
(iii)
Each policy must include a cancellation provision in which the insurance
company is required to notify the city in writing, not fewer than
30 days before canceling, failing to renew, or reducing policy limits.
Each policy shall provide that notice of claims shall be provided
to the city manager by certified mail.
(iv)
The applicant shall file the required original certificate of insurance
prior to any commencement of work. The certificate shall state the
policy number; name of insurance company; name and address of the
agent or authorized representative of the insurance company; name,
address and telephone number of insured; policy expiration date; and
specific coverage amounts. The certificate shall name the city and
its officers, employees, board members and elected representatives
as additional insureds for all applicable coverage. The city may request
the deletion, revision or modification of particular policy terms,
conditions, limitations or exclusions, unless the policy provisions
are established by law or regulation binding the city, the applicant
or the underwriter. If the city requests a deletion, revision or modification,
the applicant shall exercise reasonable efforts to pay for and to
accomplish the change.
(v)
Applicant shall obtain and maintain, at its sole cost and expense,
and file with the city secretary, a corporate surety bond in the amount
of $100,000.00 both to guarantee timely construction and faithful
adherence to all requirements of this section. The bond amount may
be reduced to $50,000.00 after a period of two years provided applicant
has complied with all terms and conditions herein. The bond shall
contain the following endorsement: “It is hereby understood
and agreed that this bond may not be cancelled by the surety nor any
intention not to renew be exercised by the surety until 30 days after
receipt by the city of such written notice of such intent.”
The bond shall provide, but not be limited to, the following condition:
There shall be recoverable by the city, jointly and severally from
the principal and the surety, any and all damages, loss or costs suffered
by the city resulting from the failure of the applicant to satisfactorily
construct facilities and adherence to all the requirements of this
ordinance. The rights reserved to the city with respect to the bond
are in addition to all other rights of the city, whether reserved
by this section, or authorized by law; and no action, proceeding or
exercise of a right with respect to such bond shall affect any other
rights the city may have.
(vi)
The city manager or his designee may waive or reduce the above requirements,
taking into consideration both that the applicant has furnished the
city with reasonable documentation to evidence adequate financial
resources substantially greater than the insurance and bonding requirements,
and has demonstrated in prior right-of-way construction activity,
prompt resolution of any claims and substantial compliance with all
required applicable codes and ordinances.
(vii)
The above financial and insurance requirements may be met by applicants
with a current franchise or license and applicants governed by Chapter
283 of the Texas Local Government Code if the current franchise, license
or statutory indemnity adequately provides for insurance or bonds
or provides an indemnity in favor of the city.
b.
Construction
permits.
1.
Permit
applications are required for construction or installation of new,
replacement or upgraded facilities in rights-of-way and easements,
whether aerial or underground, except as provided herein. The permit
will be in the name of the person who will own the facilities to be
constructed. The permit must be completed and signed by a representative
of the owner of the facilities to be constructed.
(i)
Emergency responses related to existing facilities may be undertaken
without first obtaining a permit; however the public works department
should be notified in writing as promptly as possible, though in no
event later than two business days of any construction related to
an emergency response and shall as soon as reasonably practicable
apply for and obtain the permits required herein.
(ii)
The phrase “construction or installation of new, replacement
or upgraded facilities” does not include repair or maintenance
of existing facilities unless such repair or maintenance requires
the following: the breaking of pavement; the closure of a nonresidential
traffic lane, excavation or boring.
2.
The
permit shall state to whom it is issued, location of work, location
of facilities, dates and times work is to take place and any other
conditions set out by the director of public works or designee.
3.
The
person requesting a permit will provide the director of public works
or designee with documentation describing:
(i)
The proposed, approximate location and route of all facilities to
be constructed or installed and the applicant’s plan for right-of-way
construction.
(ii)
Engineering plans which shall be submitted on a scale not to exceed
one inch equals 100 feet unless otherwise approved by public works
department.
(iii)
Detail or description of the location of all rights-of-way and utility
easements which applicant plans to use.
(iv)
Detail or description of all existing city utilities in relationship
to applicant’s proposed route.
(v)
Detail or description of what applicant proposes to install.
(vi)
Detail of plans to remove and replace asphalt or concrete in streets
(include city standard construction details for pavement patching
types A and/or B).
(vii)
Drawings of any bores, trenches, handholes, manholes, switch gear,
transformers, pedestals, etc. including depth, when available.
(viii)
Handhole and/or manhole typical of type of manholes and/or handholes
applicant plans to use or access.
(ix)
Complete legend of drawings submitted by applicant, which may be
provided by reference to previously submitted documents on file with
the city.
(x)
Three sets of engineering plans must be submitted with the permit
application.
(xi)
The name, address, and phone numbers of the contractor or subcontractor
who will perform the actual construction, including the name and telephone
number of an individual with the contractor who will be available
at all times during construction. Such information, if known, shall
be required prior to the commencement of any work.
(xii)
The construction and installation methods to be employed for the
protection of existing structures, fixtures, and facilities within
or adjacent to the right-of-way, and the estimated dates and times
work will occur, all of which (methods, dates, times, etc.) are subject
to approval of the director of public works or designee.
(xiii)
A statement that the requirements of subsection (1)a.5. are
met.
4.
All
construction and installation in the rights-of-way and easements shall
be in accordance with the permit for the facilities. The director
of public works or designee shall be provided access to the work and
to such further information as may reasonably be required to ensure
compliance with the permit.
5.
A copy
of the construction permit and approved engineering plans shall be
maintained at the construction site and made available for inspection
by the director of public works or designee at all times when construction
or installation work is occurring.
6.
All
construction or installation work authorized by permit must be completed
in the time specified in the construction permit. If the work cannot
be completed in the specified time periods, the permittee may request
an extension from the director of public works or designee. The director
of public works or designee will use best efforts to approve or disapprove
a request for permit as soon as possible. If no construction has commenced
under a permit within the time specified, and any extensions, the
permit becomes null and void and a new permit is required before construction
may be performed.
7.
A copy
of any permit or approval issued by federal or state authorities for
work in federal or state right-of-way located in the city shall be
provided, if requested by the public works department.
8.
A request
for a permit must be submitted at least five working days before the
proposed commencement of work in the request, unless waived by the
director of public works or designee. Permit requests for large projects
may require additional review time.
9.
Requests
for permits will be approved or disapproved by the director of public
works or designee within a reasonable time of receiving all the information.
The director of public works or designee will use best efforts to
approve or disapprove a request for permit as soon as possible.
10.
The
public works department or the applicant can request a pre-construction
meeting with the permittee and their construction contractor.
(2)
Construction
standards.
a.
Department
of public works must be notified 24 hours in advance that construction
is ready to proceed by either the right-of-way user, their contractor
or representative. At the time of notification, the right-of-way user
will inform the public works department of the number (or other information)
assigned from the one-call system.
b.
All construction
shall be in conformance with all city codes and standard details for
construction and all applicable local, state and federal laws. Backfilling
shall meet or exceed city standards for construction within streets.
c.
Erosion
control measures (e.g. silt fence) and advance warning signs, markers,
cones and barricades must be in place before work begins, if applicable.
d.
Lane
closures on major thoroughfares may occur only between 8:30 a.m. and
4:00 p.m. unless the public works department grants prior approval.
Barricades and signage shall be installed in accordance with the Texas
Manual of Uniform Traffic-control Devices.
e.
Without
affecting the legal relationship between permittee and its contractors,
permittees are responsible for the workmanship and any damages by
its contractor or subcontractors. Permittees are responsible for maintaining
jobsite and roadway cleanliness. A responsible representative of the
permittee will be available to the public works department at all
times during construction.
f.
Permittee
shall comply with city, state and federal guidelines applicable to
permittee.
g.
Permittee,
contractor or subcontractor will notify the public works department
immediately of any damage to other utilities, either city or privately
owned.
h.
It is
the city's policy not to cut streets or sidewalks; however, when a
street or sidewalk cut is required, prior approval must be obtained
from the public works department and all requirements of the public
works department shall be followed. Repair of all street and sidewalk
removals must be made promptly to avoid safety hazards to vehicle
and pedestrian traffic.
i.
Installation
of facilities must not interfere with city utilities, in particular
gravity dependent facilities.
j.
New facilities
must be installed to a depth in conformance with applicable state
and federal guidelines. In the absence of state and federal guidelines,
new facilities shall be installed to a depth approved by the director
of public works.
k.
New facilities,
including new service drops, shall be placed underground unless the
facility owner, developer or affected property owner has shown to
the satisfaction of the director of public works that this requirement
is not technically, environmentally or economically feasible. All
appurtenances and equipment and, if permitted, above-ground facilities
shall be placed along rear lot or tract lines unless the facility
owner, developer or affected property owner has shown to the satisfaction
of the director of public works that such placement is not feasible.
In the event there is a difference in cost associated with utility
locations, i.e.: (front lot vs. rear lot), such cost shall be borne
by the developer or property owner requesting such service. Furthermore,
electrical transformers on rear lot sites must be accessible by a
seven-foot wide dedicated utility easement extending parallel with
the side yard from front of lot to back of lot. Fire hydrants and
traffic signal controllers are exempted from the rear lot or tract
line requirement with passage of this section. City will work diligently
with facility owner, developer and affected property owners during
the zoning and platting processes of new subdivisions to ensure reasonable
equipment access to facilities along rear lot or tract lines will
be available. When facilities are to be placed along rear lot or tract
lines, before construction of facilities commences, the easement shall
be reduced to final grade, at developer’s sole cost and expense.
Additionally, if such easement is located within a floodplain, the
entire surface of the easement shall be raised above the floodplain
elevation, at developer’s sole cost and expense, before construction
of the facilities commences. The necessity for removal of minimal
fencing and/or landscaping within easements to permit the replacement
of facilities, appurtenances, and equipment is considered to be within
the definition of reasonable access. Where no such access can be made
available, facility owner and developer shall make reasonable efforts
to place above-ground facilities, appurtenances and equipment in the
least visible areas of the street rights-of-way and street yards that
are consistent with reasonable city standards and as approved by the
director of public works. Sight visibility easements and horizontal
clear triangles are not appropriate locations for the placement of
above-ground facilities, appurtenances and equipment as they would
create safety concerns by blocking or impairing the visibility of
vehicular traffic.
l.
All directional
boring shall have locator place bore marks and depths while bore is
in progress. Locator shall place a mark at each stem with paint dot
and depth at least every other stem.
m.
The working
hours in the rights-of-way are 7:00 a.m. to 6:00 p.m., Monday through
Friday. Work that needs to be performed after 6:00 p.m. Monday through
Friday must be approved in advance. Any work performed on outside
these times must be approved 24 hours in advance by the public works
department. Directional boring is permitted only Monday through Friday
7:00 a.m. to 6:00 p.m., unless approved in advance. No work will be
done, except for emergencies, on city holidays. All work shall be
performed in compliance with city noise and nuisance code requirements.
n.
Contractors
will be responsible for physically verifying the location both horizontal
and vertical of all potentially affected facilities, whether by pot
holing, hand digging or other method approved by the public works
department prior to any excavation or boring with the exception of
work involving lane closures, as discussed above.
o.
Placement
of all manholes and/or hand holes must be approved in advance by the
public works department. Handholes or manholes will not be located
in sidewalks, unless approved by the director of public works or designee.
p.
Locate
flags shall not be removed from a location while facilities are being
constructed.
q.
Construction
that requires pumping of water or mud shall be contained in accordance
with federal and state law.
r.
Permittee
may trim trees in or over the rights-of-way and easements for the
safe and reliable operation, use and maintenance of its facilities.
All trimming in rights-of-way and easements shall be in accordance
with guidelines established by the National Arborist Association and
International Society of Arboriculture, and should by done in such
a manner to preserve as much vegetation and natural shape of trees
as reasonably possible, and still accomplish a safe and effective
tree trimming program. Reasonable efforts shall be made to contact
affected property owners prior to necessary tree trimming operations.
Should utility provider or entity, its contractor or agent, fail to
remove tree trimmings within 24 hours after completion of a trimming
project, unless a longer period is required for extraordinary conditions
and conditions beyond the control of provider, the city may remove
the trimmings or have them removed, and upon receipt of a bill from
the city, the utility provider or entity shall reimburse the city
for all costs incurred within 30 working days. Utility provider or
entity shall not be responsible for tree trimming or removal above
the work required to maintain or restore utility service.
s.
The permittee
and any person responsible for construction shall protect the public
right-of-way surface, and all existing facilities and improvements
both above and below ground from excavated materials, equipment operations,
and other construction activities. Particular attention must be paid
to ensure that no excavated material or contamination of any type
is allowed to enter or remain in a water or wastewater main or access
structure, drainage facility, or natural drainage feature.
(3)
“As-built”
plans.
a.
Right-of-way
users will provide the director of public works or designee with “as-built”
plans within 90 days of completion of facilities in the right-of-way.
The plans shall be provided to the city in a format used in the ordinary
course of user’s business to the extent they are prepared in
the ordinary course of business, but excluding customer specific,
proprietary or confidential information and as reasonably prescribed
by the city, and as allowed by law.
b.
The director
of public works or designee for good cause may waive this requirement,
or portions of this requirement. Determination of good cause shall
include an assessment of 1) the right-of-way user’s ability
to feasibly and economically remove customer specific, proprietary
or confidential information from its plans and 2) the right-of-way
user’s standard business practice relative to the preparation
of construction and as-built plans. The director of public works or
designee may reassess waivers from time to time to determine whether
right-of-way user’s ability to provide as-built plans has changed.
(4)
Conformance
with public improvements.
a.
Whenever,
by reasons of widening or straightening of streets, water or wastewater
main projects, traffic signal projects, storm drainage projects or
any other public works projects (e.g. sidewalk ADA ramp installations,
storm drain upgrades, water main upgrades, waste water main upgrades,
etc.) it shall be deemed necessary by the governing body of the city
to remove, alter, change or conform the underground or overhead facilities
of a right-of-way user to another part of the right-of-way, such alterations
shall be made by the owner of the facilities at their expense, unless
provided for by state law, or an existing franchise expires or is
otherwise terminated.
b.
The city
shall give a right-of-way user written notice as to when a right-of-way
user’s facilities must be relocated, removed, altered or changed
due to construction of a city project. It is strongly recommended
that right-of-way users and the city collaborate on projects via “utility
coordination meetings”. The city director of public works or
his/her designee shall endeavor to develop the scope and detail of
the proposed city project and notify right-of-way users of a utility
coordination meeting. Right-of-way users shall work in conjunction
with the city to develop a schedule for the relocation, removal, alteration
or change of a right-of-way user’s facilities based on the nature
and extent of the city project.
c.
Upon
development of an acceptable schedule to relocate, remove, alter or
change a right-of-way user’s facilities, the right-of-way user
shall enter into a written “memorandum of understanding”,
listing the project details and proposed completion dates with the
city to accomplish the relocation, removal, alteration, and changes
to the right-of-way user’s facilities. If the right-of-way user
fails to properly relocate, remove, alter or change its facilities
within the timeframe contained in the memorandum, has failed to attend
utility coordination meetings, failed to notify the city of schedule
changes beyond the right-of-way user’s control or other circumstances,
the right-of-way user shall potentially be liable for any and all
damages incurred by the city that are attributable to the right-of-way
user’s failure to relocate, remove, alter or change its facilities
within the timeframe contained in the memorandum.
d.
In as
much as a right-of-way user has failed to comply with subsection c.
and the city upon finding of fact has determined a right-of-way user
is liable; the city may file written claim against a right-of-way
user for restitution of the dollar amount associated with the damages
incurred.
e.
The city
or its designee shall act as project manager for the purpose of coordinating
the conformance of facilities located in the public rights-of-way
to public improvement projects. The project manager shall have the
responsibility to establish utility coordination meetings, provide
the scope and detail of the proposed city project, manage the relocation
process, establish a reasonable schedule for relocations, and communicate
with and among right-of-way users of the public right-of-way. In the
event that the project manager fails to satisfactorily execute the
duties as outlined in subsection d), the city shall hold the user’s
of the public right-of-way harmless for any and all damages incurred
by the city that may be attributable to the right-of-way user’s
failure to relocate, remove, alter or change its facilities.
f.
If no
acceptable schedule for the relocation, removal, alteration or change
of a right-of-way user’s facilities can be determined between
the director of public works or his/her designee and the right-of-way
user, the city may send written notice to the right-of-way user directing
the right-of-way user to relocate, remove, alter or change its facilities
within a reasonable time frame with not less than 60 days prior written
notification. Pursuant to written notification, the right-of-way user
shall have 120 days to accommodate a city project.
g.
The right-of-way
user shall not be held responsible for any delay or failure in performance
of any part of its obligations to relocate, remove, alter or change
its facilities if the delay or failure is caused by circumstances
outside the reasonable control of the right-of-way-user, including
without limitation (1) the failure of the city or another right-of-way
user to move or adjust its facilities as necessary to allow timely
completion of such right-of-way users relocation, removal, alteration
or change of its facilities under the project, or (2) fire, flood,
storm, or other weather conditions, work stoppage or other strike,
or act of God or force majeure event.
(5)
Improperly
installed facilities.
a.
Any person
doing work in the city right-of-way shall properly install, repair,
upgrade and maintain facilities.
b.
Facilities
installed after the effective date of this chapter shall be considered
to be improperly installed, repaired, upgraded or maintained if:
1.
The
installation, repairs, upgrade or maintenance endangers people;
2.
The
facilities do not meet the applicable city codes;
3.
The
facilities are not capable of being located using standard practices;
4.
The
facilities are not located in the proper place at the time of construction
in accordance with the directions provided by the public works department.
(6)
Restoration
of property.
a.
Users
of the right-of-way shall restore property affected by construction
of facilities to a condition that is equal to or better than the condition
of the property prior to the performance of the work.
b.
Restoration
must be to the reasonable satisfaction of the public works department
and the property owner. The restoration shall include, but not be
limited to:
1.
Replacing
all ground cover with the type of ground cover damaged during work
either by sodding or seeding, as directed by the public works department.
2.
Installation
of all manholes and handholes, as required:
3.
Backfilling
all bore pits, potholes, trenches or any other holes shall be filled
in or covered daily, unless other state or federal safety requirements
are followed.
4.
Leveling
of all trenches and backhoe lines;
5.
Restoration
of excavation site to city specifications; and
6.
Restoration
of all landscaping, ground cover, and sprinkler systems.
c.
All locate
flags and information signs shall be removed during the clean up process
by the permittee or contractor at the completion of the work.
d.
Restoration
must be made in a timely manner as specified by approved public works
schedules and to the satisfaction of director of public works or designee.
If restoration is not satisfactory and performed in a timely manner
all work in progress, except that related to the problem, including
all work previously permitted but not complete may be halted and a
hold may be placed on any permits not approved until all restoration
is complete.
(7)
Revocation
or denial of permit.
If any of the provisions of this
chapter are not followed, a permit may be revoked by the director
of public works or designee. If a person has not followed the terms
and conditions of this ordinance in work done pursuant to a prior
permit, new permits may be denied or additional terms required.
(8)
Appeal
from denial or revocation of permit.
Appeal from denial
or revocation of permit or from the decision of the director of director
of public works or designee shall be to the city council. Appeal shall
be filed with the city secretary within 15 days.
(9)
Violation
of ordinance.
a.
A person
commits an offense if they:
1.
Perform,
authorize, direct, or supervise construction without a valid permit
issued under this section;
2.
Fail
to comply with restrictions or requirements of a permit issued under
this section;
3.
Fail
to comply with a lawful order or regulation of the director issued
pursuant to this section; or
4.
Violate
any other provision of this section.
b.
A person
commits an offense if, in connection with the performance of construction
in the public right-of-way, they:
1.
Damage
the public right-of-way beyond what is incidental or necessary to
the performance of the construction:
2.
Damage
public or private facilities within the public right-of-way;
3.
Fail
to immediately clear debris associated with the construction from
a public right-of-way after the construction is completed; or
4.
Fail
to stabilize any disturbed area from erosion within 14 days after
construction is completed, unless an alternative timeframe is approved
by the director of public works or designee.
c.
A culpable
mental state is not required to prove an offense under this chapter.
A person who violates a provision of this section is guilty of a separate
offense for each day or portion of a day during which the violation
is committed, continued, authorized, or directed. An offense under
subsection (9)b.3. is punishable by a fine of not less than $500.00
or more than $2,000.00. Any other offense under this section is punishable
by a fine of $500.00.
d.
This
section may be enforced by a civil court action in accordance with
state or federal law, in addition to any other remedies, civil or
criminal, the city has for a violation of this section.
e.
Prior
to initiation of civil enforcement litigation, the permittee, or any
other person who has violated a provision of this section, shall be
given the opportunity to correct the violation within a timeframe
specified by the director of public works or designee. This subsection
does not prohibit the director of public works, designee, or the city
from taking enforcement action as to past or present violation of
this section, notwithstanding their correction.
f.
If a
permittee has been convicted of an offense under this section in municipal
court, no additional permits will be granted to the public service
provider and/or the permittee until the offense has been corrected
and any direct or indirect costs incurred by the city have been reimbursed.
(Ordinance 1659, § I, 10-6-04)
(a)
Except
as to certified telecommunications providers, each person placing
facilities in the public right-of-way shall 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 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; and
(2)
From
and against any and all claims, damages, 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 this ordinance.
(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 are not
intended to create any rights, contractual or otherwise, to any person
or entity.
(d)
A permittee
who is a certified telecommunication provider as defined in V.T.C.A.,
Local Government Code, chapter 283, as amended, shall give the city
the indemnity provided in V.T.C.A., Local Government Code, §
283.057, as amended.
(Ordinance 1659, § III, 10-6-04)
The purpose of this division is to:
(1)
Assist
the city in the competitively neutral and nondiscriminatory management
of the physical use, occupancy and maintenance of its public rights-of-way
by wireless network providers;
(2)
Secure
fair and reasonable compensation for the physical use and occupancy
of the public rights-of-way by wireless network providers in a nondiscriminatory
and competitively neutral manner; and
(3)
Assist
the city in protecting the public health, safety, and welfare.
(Ordinance 2169, § 2, 9-12-17)
This division shall be construed in accordance with chapter
284 of the Texas Local Government Code (“the code”) to
the extent not in conflict with the Constitution and laws of the United
States or of the state.
(Ordinance 2169, § 2, 9-12-17)
For the purpose of this division, the definitions found in the
city design manual for the installation of network nodes and node
support poles (“the design manual”) are hereby incorporated
into this division and shall apply unless the context clearly indicates
or requires a different meaning. The following definitions as found
in the design manual are specifically applicable to this division:
means:
means the City of Euless, Texas.
means the municipal governing body of the City of Euless,
Texas.
means Texas Local Government Code, chapter 284.
means the mayor of the City of Euless, Texas, or designee.
means the Texas Local Government Code.
means the installation, mounting, maintenance, modification,
operation, or replacement of network nodes in a public right-of-way
on or adjacent to a pole.
means a streetlight pole specially designed and placed for
aesthetic purposes and on which no appurtenances or attachments, other
than specially designed informational or directional signage or temporary
holiday or special event attachments, have been placed or are permitted
to be placed according to nondiscriminatory city codes and ordinances.
means an area that is zoned, or otherwise designated by municipal
code, and for which the city maintains and enforces unique design
and aesthetic standards on a uniform and nondiscriminatory basis.
means and shall include any public easement or other compatible
use created by dedication, or by other means, to the city for public
utility purposes or any other purpose whatsoever. “Easement”
shall include a private easement used for the provision of utilities.
means the Federal Administrative Agency, or lawful successor,
authorized to oversee cable television and other multi-channel regulation
on a national level.
means right-of-way adjacent to a state or federal highway.
means common law or a federal, state, or local law, statute,
code, rule, regulation, order, or ordinance.
means within the geographical boundaries of the city.
means the city-approved and lawfully permitted location for
the network node.
means a network node that is not larger in dimension than
24 inches in length, 15 inches in width, and 12 inches in height,
and that has an exterior antenna, if any, not longer than 11 inches.
means an area that is zoned or otherwise designated by the
city as a public park for the purpose of recreational activity.
means equipment at a fixed location that enables wireless
communications between user equipment and a communications network.
The term:
Includes:
Equipment associated with wireless communications;
A radio transceiver, an antenna, a battery-only backup power
supply, and comparable equipment, regardless of technological configuration;
and
Coaxial or fiber-optic cable that is immediately adjacent to
and directly associated with a particular collocation; and
means:
means a pole installed by a network provider for the primary
purpose of supporting a network node.
means a written authorization for the use of the public right-of-way
or collocation on a service pole required from the city before a network
provider may perform an action or initiate, continue, or complete
a project over which the municipality has police power authority.
means a service pole, city-owned utility pole, node support
pole, or utility pole.
means an easement or other real property right that is only
for the benefit of the grantor and grantee and their successors and
assigns.
has the same meaning as “network provider.”
means the area on, below, or above a public roadway, highway,
street, public sidewalk, alley, waterway, or utility easement in which
the public has an interest. The term does not include:
means a pole, other than a city-owned utility pole, owned
or operated by the city and located in a public right-of-way, including:
means only the paved portion of the right-of-way used for
vehicular travel, being the area between the inside of the curb to
the inside of the opposite curb, or the area between the two parallel
edges of the paved roadway for vehicular travel where there is no
curb. A “street” is generally part of, but smaller in
width than the width of the entire right-of-way, while a right-of-way
may include sidewalks and utility easements. A “street”
does not include the curb or the sidewalk, if either are present at
the time of a permit application or if added later.
means any device, whether manually, electrically, or mechanically
operated by which traffic is alternately directed to stop and to proceed.
means each transmission path physically within a public right-of-way,
extending with a physical line from a network node directly to the
network, for the purpose of providing backhaul for network nodes.
means a person or organization that conducts a business over
facilities occupying the whole or a part of a public street or right-of-way,
depending on the context.
means a pole that provides:
means any service, using licensed or unlicensed wireless
spectrum, including the use of wi-fi, whether at a fixed location
or mobile, provided to the public using a network node.
means a person or entity that provides wireless service to
the public.
mean “micro network nodes,” “network nodes,”
and “node support poles” as defined in Texas Local Government
Code, chapter 284.
(Ordinance 2169, § 2, 9-12-17)
Pursuant to this division and subject to the design manual and
the code, a wireless network provider has the nonexclusive right to
use and occupy the public rights-of-way in the city for the purpose
of constructing, maintaining, and operating its facilities used in
the provision of wireless facilities. The terms of this division shall
apply to all wireless network providers’ facilities used, in
whole or part, in the provision of wireless services throughout the
city.
(Ordinance 2169, § 2, 9-12-17)
All wireless network providers shall comply with the terms of
this right-of-way management ordinance, city applicable codes, and
the terms and conditions of the city’s design manual.
(Ordinance 2169, § 2, 9-12-17)
A network provider shall construct and maintain network nodes
and network support poles described in the code in a manner that does
not:
(1)
Obstruct,
impede, or hinder the usual travel or public safety on a public right-of-way;
(2)
Obstruct
the legal use of a public right-of-way by other utility providers;
(3)
Violate
nondiscriminatory applicable codes;
(4)
Violate
or conflict with the city’s publicly disclosed public right-of-way
design specifications; or
(5)
Violate
the federal Americans with Disabilities Act of 1990 (ADA).
(Ordinance 2169, § 2, 9-12-17)
(1)
Except
as otherwise provided in chapter 284 of the code, a network provider
shall obtain a permit or permits from the city to install a network
node, node support pole, or transport facility in a public right-of-way.
(2)
A network
provider that intends to install or collocate multiple network nodes
inside the municipal limits of the city is entitled to file a consolidated
permit application with the city for not more than 30 network nodes
and upon payment of the applicable fee(s), receive a permit or permits
for the installation or collocation of those network nodes.
(3)
The network
provider shall provide the following information in its permit applications:
a.
Applicable
construction and engineering drawings and information to confirm that
the applicant will comply with the city’s design manual and
applicable codes;
b.
Any additional
information reasonably related to the network provider’s use
of the public rights-of-way to ensure compliance with the design manual
and this chapter;
c.
A certificate
that the network node(s) complies with applicable regulations of the
Federal Communications Commission; and certification that the proposed
network node(s) will be placed into active commercial service by or
for the network provider not later than the 60th day after the date
of construction and final testing of each network node is completed.
d.
A certificate
of insurance that provides that the network provider and its contractor
has at least $1,000,000.00 in general liability coverage.
(Ordinance 2169, § 2, 9-12-17)
A network provider must obtain advance written consent from
the city manager before collocating new network nodes or installing
new node support poles in an area of the city that has been zoned
or otherwise designated as a design district if the district has decorative
poles. The network provider shall be required to comply with the general
aesthetic requirements described in the city’s design manual.
The city has the authority to designate new design districts at a
future date.
(Ordinance 2169, § 2, 9-12-17)
A network provider may not install a new node support pole in
a public right-of-way without the city manager’s discretionary,
nondiscriminatory and written consent if the public right-of way:
(1)
Is in
a municipal park; or
(3)
In addition
to the above, a network provider installing a network node or node
support pole in a public right-of way shall comply with private deed
restrictions and other private restrictions in the area that apply
to those facilities.
(4)
The
network provider shall be further required to comply with guidelines
set out in the city’s design manual.
(Ordinance 2169, § 2, 9-12-17)
(1)
Determination
of application completeness:
The city shall determine
whether the permit application is complete and notify the applicant
of that determination:
(2)
Approval
or denial of application:
The city shall approve or deny
a completed application after the date it is submitted to the city:
(a)
For network nodes:
No later than 60 days after the date
the city receives the complete application.
(b)
For network support poles:
No later than 150 days after
the date the city receives the complete application.
(c)
For transport facilities:
No later than 21 days after
the city receives the complete application.
(3)
Basis
for denial of application:
If an application is denied
by the city, it shall document the basis for the denial, including
the specific applicable city code provisions or other city rules,
regulations, or other law on which the denial is based. The documentation
for the denial must be sent by electronic mail to the applicant on
or before the date that the city denies the application.
(4)
Resubmission
of denied application:
The applicant may cure the deficiencies
identified in the denial application.
(a)
The
applicant has 30 days from the date the city denies the completed
application to cure the deficiencies identified in the denial documentation
without paying an additional application fee, other than any fee for
actual costs incurred by the city.
(b)
The
city shall approve or deny the revised completed application after
a denial not later than the 90th day after the city receives the revised
completed application. The city’s review shall be limited to
the deficiencies cited in the denial documentation.
(5)
Nondiscriminatory
review:
Each completed application shall be processed
by the city on a nondiscriminatory basis.
(Ordinance 2169, § 2, 9-12-17)
A network provider shall begin installation for which a permit
is granted not later than six months after final approval of the application
and shall diligently pursue installation to completion. The city manager
may in his/her sole discretion grant reasonable extensions of time
as requested by the network provider.
(Ordinance 2169, § 2, 9-12-17)
(1)
As compensation
for the network provider’s use and occupancy of the city public
rights-of-way, the network provider shall pay application fees and
annual public right-of-way rental rates as set forth below, which
shall be in lieu of any lawful tax, license, charge, right-of-way
permit, use, construction, street cut or inspection fee; or other
right-of-way related charge or fee, whether charged to the network
provider or its contractor(s) within the city, except the usual general
ad valorem taxes, special assessments and sales tax levied in accordance
with state law and equally applicable to all general businesses in
the city.
(2)
Network
nodes.
a.
Annual
public right-of-way rate fee.
The annual public right-of-way
rate shall be $250.00 per network node installed in the city public
rights-of-way.
b.
Public
right-of-way rate adjustment.
As provided in section
284.054 of the code, the city may adjust the amount of the annual
public right-of-way rate not more than annually by an amount equal
to one-half the annual change, if any, in the consumer price index
(CPI). The city shall provide written notice to each network provider
of the new rate; and the rate shall apply to the first payment due
to the city on or after the 60th day following the written notice.
(3)
Transport
facilities.
The annual transport facility rental rate shall be $28.00 monthly for each network node site located in a public right-of-way. However, no rate is required if the network provider is already paying the city an amount equal to or greater than the amount of other city right-of-way fees for access lines under chapter 283 of the code or cable franchise fees under chapter 66 of the Texas Utility Code.
(4)
Collocation
of network nodes on service poles.
Subject to the city’s
pole service agreement, the collocation of network nodes on city service
poles shall be at a rate of $20.00 per year per service pole.
(5)
City-owned
municipal utility poles.
A network provider shall pay
an annual pole attachment rate for the collocation of a network node
supported by or installed on a city-owned utility pole based upon
the pole attachment rate consistent with section 54.024 of the Texas
Utilities Code, applied on a per-foot basis.
(Ordinance 2169, § 2, 9-12-17)
As provided in section 284.302 of the code, a wireless network
provider shall indemnify, defend, and hold the city harmless from
and against all liability, damages, cost, and expense, including reasonable
attorney’s fees, arising from injury to person or property proximately
caused by the negligent act or omission of the network provider. The
city shall promptly notify the network provider of any claims, demands,
or actions (“claims”) covered by this indemnity after
which the network provider shall defend the claims. The network provider
shall have the right to defend and compromise the claims. The city
shall cooperate in the defense of the claims. The foregoing indemnity
obligations shall not apply to claims arising solely from the negligence
of city; however, they shall apply in the case of all claims which
arise from the joint negligence of the network provider and the city;
provided that in such cases, the amount of the claims for which the
city shall be entitled to indemnification shall be limited to that
portion attributable to the network provider. Nothing in this section
shall be construed as waiving any governmental immunity available
to the city under state law or waiving any defenses of the parties
under state law.
(Ordinance 2169, § 2, 9-12-17)
Nothing in this division shall govern attachment of network
nodes on poles and other structures owned or operated by investor-owned
electric utilities, electric cooperatives, telephone cooperatives,
or telecommunication providers.
(Ordinance 2169, § 2, 9-12-17)
