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; and
(9)
Protect
the safety, security, appearance, and condition of the public rights-of-way.
(Ordinance O2005-04-04 adopted 5/17/05)
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 law,
including, but not limited to, cable providers, in accordance with
the Federal Cable Act, 47 USC Section 541, et seq.; for certificated
telecommunication providers, Chapter 283 of the Texas Local Government
Code; for distributors of natural gas or water or wastewater or as
otherwise applicable, Texas Tax Code Section 182.025; for electric
utilities, Section 33.008, Texas Utilities Code; and/or in accordance
with written franchise agreements or Tex. Civil Statute, Art. 1175(1),
all as applicable.
(Ordinance O2005-04-04 adopted 5/17/05)
In this article, the following words, terms and phrases shall
have the following meanings:
Any on or above-grade structure including buildings and additions
to buildings, bridges, viaducts, streets, arterial and highway improvements,
park developments, landscaping, fencing gages, lamp standards, signs,
street furniture, and all similar installations including below-grade
structures which are regularly visible to the public including tunnels,
arcades and underground passageways, to be erected on land belonging
to the city, financed in whole or in part with city funds, or subject
to the approval of the city.
The same as defined in Tex. Loc. Gov’t 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 Texas Public Utility Commission
to offer local exchange telephone service.]
The City of Hillsboro, 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 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.
City director of the public works department or such director’s
designee.
Any and all of the 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.
The initial authorization, or renewal thereof, issued by
the franchising authority, whether such authorization is designated
as a franchise, ordinance, permit, contract, certificate, or agreement.
A natural person (an individual), corporation, company, association,
partnership, firm, limited liability company, joint venture, joint
stock company or association, and other such entity.
The same as defined in Tex. Loc. Gov’t Code Section
283.002(6), [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.]
The term does not include city property.
(Ordinance O2005-04-04 adopted 5/17/05)
(a)
(1)
Any
person seeking to place facilities on, in or over the public rights-of-way,
shall, in addition to obtaining all necessary franchises or other
authorizations to do so, pay a construction permit application fee
in an amount that allows the city to recover its costs (except Certified
Telecommunications Providers and their contractors to the extent exempted
by Tex. Loc. Gov’t Code, Chapter 283), and 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.
(2)
With
such application, applicants shall submit to the director of the department
of public works 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 3.1806(4) below.
(b)
Any person
except a Certified Telecommunications Provider, 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 at the time of this article takes effect shall continue
to operate under and comply with that grant 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. To the
extent that the provisions can be reconciled, both the grant and this
article shall be given effect. In the event the provisions cannot
be reconciled, this article shall control.
(d)
In order
for the city to know which 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: Person’s
name, address, and 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.
For entities with a current franchise or license, the franchise or
license shall be evidence of renewal registration.
(Ordinance O2005-04-04 adopted 5/17/05)
(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.
(Ordinance O2005-04-04 adopted 5/17/05)
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, but
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 within the public rights-of-way underground
according to 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
undergrounding of facilities is encouraged. In any event, facilities
shall be installed underground where existing utilities are already
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 depth of twenty-four inches (24") 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 the curb line unless otherwise
directed by the city.
(C)
Conduits
and ducts shall be installed parallel with the curb line 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 driveway crossings to avoid motor vehicle interruptions, 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 rights-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
rights-of-way shall be conducted so as to minimize interference with
the use of public and private property. Overhead facilities shall
be installed in such a manner as to follow prescribed industry standards.
(3)
(A)
A
person must obtain a permit, as reasonably required by applicable
city codes, including subsection (3)(C) below, prior to any excavation,
construction, installation, expansion, reconstruction, relocation,
alteration, removal, maintenance or repair of the person’s facilities.
(B)
Bonding
will be required as in subsection (11) of this section, and insurance
as in Section 3.1808.
(C)
(i)
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 8:30 a.m. and 4:30 p.m. to 6:30 p.m. on weekdays. 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 (11) 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
90 calendar days of issuance, their 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.
(ii)
At least fifteen (15) business days prior to submission of an application
for construction permit 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 public
works, showing the location and plans and specifications for the capital
improvements project. A person may submit an application for a permit
for construction of a capital improvements project 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.
(iii)
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 project and shall furnish the director
with construction plans and maps using the standard format adopted
by the department of public works, showing the location and proposed
routing of the excavation, construction, installation, expansion,
reconstruction, relocation, alteration, removal, maintenance or repair
unless 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.
(iv)
The construction permit application
shall include the following:
(aa)
The name of the user to be working within the
public rights-of-way;
(bb)
The name, address, and telephone number of the contact person
or persons for the user;
(cc)
The name of the owner of the facilities;
(dd)
The signature of an authorized representative of the user;
(ee)
The date of commencement and the estimated completion time for
the work;
(ff)
Three sets of construction plans that include the following:
1.
The proposed location and route of all facilities within public rights-of-way
to be constructed, installed, expanded, replaced, removed or maintained.
2.
The location of all public rights-of-way boundaries at the proposed
facilities.
3.
A description of all existing town utilities that could potentially
conflict with applicant’s proposed route.
4.
A description of the type and size of facilities the applicant proposes
to install.
5.
A description of any bores or trenches the applicant proposes to
dig, and any handholes, manholes, switchgear, transformers, pedestals,
etc. the applicant proposes to install, showing the approximate depth
of such construction and installations along with any variance from
standard city trenching details.
6.
A description of plans to remove and replace pavement if such plans
differ from the city construction requirements.
7.
A typical section of all equipment (pedestals, transformers, etc.)
to be set, including pad sizes if required.
8.
A traffic control plan, unless demonstrated not applicable.
9.
The construction and installation methods to be employed for the
protection of existing structures, fixtures, and facilities within
or adjacent to the public rights-of-way, and the dates and times work
will occur.
10.
A complete legend of drawings submitted by applicant.
11.
An erosion control plan, to the extent required by the city
department of public works.
(gg)
Certificate of insurance unless a current certificate is on
file with the city.
(v)
The engineering services division or permittee may request a pre-construction
meeting.
(vi)
All details of the construction plans are subject to the approval
of the engineering services division.
(D)
To
the extent known, plans for ongoing repair, maintenance, and improvements
which involve cutting into paved city roads or streets shall be submitted
to the department of public works 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 appropriate representative
of public works each calendar quarter to provide such plans to the
extent known.
(E)
Once
a permit is issued, the departments of public works shall be notified
via electronic communication 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
or signage on trucks stating similar criteria.
(F)
A
person shall be responsible for stormwater management and erosion
control that complies with city, state, and federal guidelines. Requirements
shall include, but not be limited to, silt fencing around any excavation
that will be left overnight, silt fencing in erosion areas until reasonable
vegetation is established, barricade fencing around open holes, and
high erosion areas will require backed silt fencing. Upon request,
the permittee may be required to furnish documentation submitted or
received from the federal or state government. Erosion control facilities
shall be in place prior to commencement of construction.
(G)
Lane
closures on major thoroughfares will be limited to between 8:30 a.m.
and 4:30 p.m. unless the department of public works grants prior approval.
All lane closures shall comply with the Texas Manual on Uniform Traffic
Control Devices for Streets and Highways. 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
on Saturday must be approved by the departments of public works 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.
(H)
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.
(4)
(A)
Within
fourteen (14) days of completion of 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 section 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, relay and/or repair in 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, 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 video tape of the public rights-of-way
before the construction, the condition of the public rights-of-way
before the 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 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 public
works for approval, no later than 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 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 day
period. Upon receipt of an invoice from the city, the person shall
reimburse the city for the cost so incurred within thirty (30) calendar
days from the date of the city invoice.
(6)
Should
the director 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.
(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 within
a reasonable timeframe, 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 or persons (“emergency conditions”), a person
may not excavate the pavements of a street or public rights-of-way
without first complying with the city requirements. The city department
of public works shall be notified via electronic communication or
facsimile 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. 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 “design plans” with any “as
built” change 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, 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)
To
the extent the person’s customary as-built format will confirm
without economic impracticability, 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 scale of 1 in.
equals 100 ft.
(C)
A
person shall provide the department of public works with “record
drawings” within ninety (90) days of completion of construction.
The “record drawings” shall be in a format used by the
permittees in their ordinary course of business, but shall exclude
customer specific, proprietary or confidential information. If the
release of the location of any utility, including water and sewer
or of the “record drawings” submitted under this section
would jeopardize public safety, the information shall be considered
confidential. In addition, if “record drawings” submitted
under this section include information expressly designated by the
user as a trade secret or other confidential information protected
form disclosure by state law, the town may not disclose the information
to the public without consent of the user, unless otherwise compelled
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.
(11)
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 timelines of construction. The city
may in a nondiscriminatory 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
year history of no claims, or damages to city property by the city,
or of prompt payment on such claims or is a franchised utility.
(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 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 O2005-04-04 adopted 5/17/05)
(a)
In the
exercise of governmental functions, as lawfully authorized by state
and federal law, the city has first priority over all other persons
in the public rights-of-way. The city reserves the right to construct
sewer, gas, water, and other pipe lines or cables and conduits, to
do underground and overhead work and or change aerial facilities,
in across, along, over or under a public street, alley, or public
rights-of-way occupied by a person, and to change the curb, sidewalk
or the grade of the streets in accordance with state and federal law.
(b)
The city
shall assign the location in or over the public rights-of-way among
known persons of the public rights-of-way with due consideration to
the public health and safety considerations of each type of persons
and to the extent the city can demonstrate that there is limited space
available for additional persons, may limit new persons, as allowed
under state or federal law.
(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 authorized
person of the public rights-of-way. If the city closes or abandons
a public rights-of-way that contains a portion of a person’s
facilities, the city shall close or abandon such public rights-of-way
subject to the rights of the person.
(d)
Subject
to applicable state law, whenever the city has determined that removal,
relocation, change, or alteration of a persons facilities in the public
rights-of-way is reasonably necessary for the widening or straightening
of a street, upon written notice by the city, a person shall, at its
own expense, temporarily or permanently, remove, relocate, change
or alter the position of the 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. Prior to
relocation, the city shall provide a suitable location within a public
right-of-way, property or place for relocated facilities sufficient
to maintain service. For projects expected to take longer than one
hundred twenty (120) days to remove, change, or relocate, the city
will confer with the person before determining the removal, relocation,
change, or alteration is deemed by the user to impose a significant
financial hardship, the user shall have the right to present alternative
proposals to the person and town shall give due consideration to any
such alternative proposals. This section shall not be construed to
prevent persons recovery of the cost of relocation or removal from
private third parties who initiate the request for relocation or removal.
If the person fails to relocate facilities in the time allowed by
the city in this section, the person may be subject to legal action
by the city or to a liability to the city for such delay, as may be
set forth in the codes of ordinance, now or hereinafter enacted. Not
withstanding anything in this subsection, the city department of public
works a person may agree in writing to different time frames than
those provided above if circumstances reasonably warrant such change.
Such circumstances may include, but are not limited to, weather conditions,
emergency conditions, accuracy and completeness of engineering plans
or change in design, relocation, coordination and other criteria which
may delay project.
(e)
A permittee
may trim trees in or over the public rights-of-way 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 including the prohibition of tree topping. Should a person,
its contractor or agent fail to remove such trimmings within twenty-four
(24) hours under routine circumstances, or up to 10 business days,
or until all service restoration activities have been completed because
of emergency conditions, the city may remove the trimmings or have
them removed, and upon receipt of a bill from the city, a person shall
promptly reimburse the town for all costs incurred within thirty (30)
working days.
(f)
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) work 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.
(g)
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 O2005-04-04 adopted 5/17/05)
(a)
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 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. For purposes of this
section the city will accept certificates of self-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 require adjustment of the 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 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
resources to be a self-insured entity as reasonably determined by
the city, based on financial information requested by and furnished
to the city. The city’s current insurance requirements are described
in Exhibit “A,” on file in the office of the city secretary.
(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 deletions, revision or modification of particular
policy terms, conditions, limitations, or exclusions, unless the policy
provisions are establish by law or regulation binding the city, 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 uninsured for all applicable coverage;
(2)
Provide
for 30 days notice to the city for cancellation, non-renewal, or material
change; and
(3)
Provide
that 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 coverages 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 damages covered by the policy.
(Ordinance O2005-04-04 adopted 5/17/05)
(a)
Except
as to certificated telecommunications providers as provided in Chapter
283 of the Local Government Code, 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, 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 ages, 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 omission of the person, its agents,
employees, and/or subcontractors, in the performance of activities
pursuant to or authorized under this article.
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
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.
(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 or grant any rights, contractual or otherwise,
to any other person or entity.
(d)
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 O2005-04-04 adopted 5/17/05)
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, subject to
the city’s ongoing authority to adopt reasonable police power
based regulations to manage its public rights-of-way, pursuant to
Sections 3.1806 and 3.1807 or as otherwise provided by law.
(Ordinance O2005-04-04 adopted 5/17/05)
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. Any person violating any
of the provisions or terms of this article shall be deemed guilty
of a misdemeanor and upon conviction thereof shall be fined in accordance
with the general penalty provision found in Section 1.109 of this
code, for each violation, and each day that such violation shall continue
to exist constitutes a separate offense.
(Ordinance O2005-04-04 adopted 5/17/05)
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), hereby agree to use the city’s rights-of-way
under the terms and conditions approved by the City of Hillsboro by
City Public rights-of-way Management Ordinance (Ordinance No. 2005-04-04).”
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Name
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Title
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Date
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(Ordinance O2005-04-04 adopted 5/17/05)
