ARTICLE III USE OF PUBLIC RIGHTS-OF-WAY [1]

Public and private uses of public right-of-way for location of facilities employed in the provision of public services should, in the interests of the general welfare, be accommodated; however, the city must ensure that the primary purpose of the rights-of-way, passage of pedestrian and vehicular traffic, is maintained to the greatest extent possible. In addition, the value of other public and private installations, roadways, city utility system, facilities and properties should be protected, competing uses must be reconciled, and the public safety preserved. The use of the public right-of-way corridors by private users is secondary to these public objectives and to the movement of traffic. This article is intended to strike a balance between the public need for efficient, safe transportation routes and the use of public rights-of-way for location of public and private facilities. The article thus has several objectives:

To ensure that the public safety is maintained and that public inconvenience is minimized.

To protect the city’s infrastructure investment by establishing repair standards for the pavement, facilities, and property in the public rights-of-way, when work is accomplished.

To facilitate work within the public right-of-way through the standardization of regulations.

To maintain an efficient permit process.

To conserve and fairly apportion the limited physical capacity of the public right-of-way held in public trust by the city.

(6)

To establish a public policy for enabling the city to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition, and technological development.

(7)

To promote cooperation among the service providers and the city in the occupation of the public right-of-way, and work therein, in order to eliminate duplication that is wasteful, unnecessary or unsightly, lower the service providers’ and the city’s costs of providing services to the public, and preserve the physical integrity of the streets, alleys, easements and highways by minimizing pavement cuts.

(8)

To assure that the city can continue to fairly and responsibly protect the public health, safety, and welfare.

This article does not grant any rights to use or occupy the city’s right-of-way but is intended to impose reasonable regulations on the use of the public right-of-way by persons authorized by license and hold harmless agreements, franchises and/or by law to place and maintain equipment and facilities within the public right-of-way.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-257 Definitions.

The following words, terms, and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.

Antenna.

Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

Applicable codes.

Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; and

Collocate and collocation.

Local amendments to those codes to the extent not inconsistent with this chapter.

Backfill.

The placement of new dirt, select fill, or other material in an Excavation, or the return of Excavated dirt, select fill or other material to an Excavation.

City.

The City of Wichita Falls, its officers, employees and departments.

City engineer.

The city engineer or his/her designee(s).

Closure.

A complete or partial closing of one or more lanes of traffic for any period of time.

The installation, mounting, maintenance, modification, operation, or replacement of network nodes in a public right-of-way on or adjacent to a pole.

Construction.

Any of the following activities performed by any person within a public right-of-way:

Installation, reconstruction, laying, placement, repair, upgrade, maintenance or relocation of facilities or other improvements;

Modification or alteration to any surface, subsurface or aerial space within the public right-of-way;

Performance, restoration, or repair of pavement cuts or excavations; or

Other similar construction work.

Contractor.

A person hired or retained to do construction for a service provider.

Decorative pole.

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 municipal codes.

Design district.

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.

Drainage easement.

Easement solely for the conveyance of stormwater and shall not be combined with utility easements and/or access easements

Duct or conduit.

A single enclosed raceway for cables, fiber optics, wires or other similar facilities.

Emergency.

Any event which may threaten public health or safety, including, but not limited to, damaged or leaking water or gas piping systems, damaged, plugged, or leaking sanitary sewers or storm sewers, damaged electrical and telecommunications facilities, unsafe overhead pole structures or any other condition that requires immediate repair or replacement of facilities to restore service to a customer.

Emergency activity.

Circumstances requiring immediate construction or operations to:

Prevent imminent damage or injury to the health or safety of any person or to the public right(s)-of-way;

Restore service; or

Municipally owned utility pole.

Prevent the loss of service.

Excavate or excavation.

To dig into or in any way remove or penetrate any part of a right-of-way.

Facilities.

Any and all of the wires, cables, fibers, duct spaces, manholes, poles, conduits, pipes, connections, underground and overhead passageways and other equipment, structures, plants, and appurtenances and all associated physical equipment placed in, on, or under the public right-of-way of the city. Facilities specifically exclude landscaping materials, irrigation systems and materials used by the United States Postal Service or any other governmental entity.

Historic district.

An area that is zoned or otherwise designated as a historic district under municipal, state, or federal law.

Law.

Common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance.

Macro tower.

A guyed or self-supported pole or monopole greater than the height parameters prescribed by Section 284.103 of the Texas Local Government Code and that supports or is capable of supporting antennas.

Micro network node.

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.

A utility pole owned or operated by a municipally owned utility, as defined by Section 11.003, Texas Utilities Code, and located in a public right-of-way.

Municipal park.

An area that is zoned or otherwise designated by municipal code as a public park for the purpose of recreational activity.

Network node.

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

Does not include:

An electric generator;

A pole; or

A macro tower.

Node support pole.

A pole installed by a network provider for the primary purpose of supporting a network node.

Pavement cut.

An excavation in a sidewalk or improved surface of the public right-of-way to include the street, alley, drive-approaches and parking areas.

Permit.

A written authorization for the use of the public right-of-way required from a municipality before any person, service provider or contractor may perform an action or initiate, continue, or complete a project over which the municipality has police power authority.

Person.

An individual, corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company or association, and other such entity who owns, installs, maintains, or controls facilities or service lines.

Pole.

A service pole, municipally owned utility pole, node support pole, or utility pole.

Private easement.

An easement or other real property right that is only for the benefit of the grantor and grantee and their successors and assigns.

Public right-of-way.

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:

A private easement;

A drainage easement; or

Public right-of-way management ordinance.

The airwaves above a public right-of-way with regard to wireless telecommunications.

An ordinance that complies with an ordinance that complies with Texas Local Government Code 284, Subchapter C.

Public right-of-way rate.

An annual rental charge paid by a network provider to a municipality related to the construction, maintenance, or operation of network nodes within a public right-of-way in the municipality.

Service line.

Line connecting the service provider’s utility or meter to the customer’s point of utilization or consumption.

Service pole.

A pole, other than a municipally owned utility pole, owned or operated by a municipality and located in a public right-of-way, including:

A pole that supports traffic control functions;

A structure for signage;

A pole that supports lighting, other than a decorative pole; and

A pole or similar structure owned or operated by a municipality and supporting only network nodes.

Service provider.

Any person using the public right-of-way including, but not limited to, any wholesale or retail electric utility, gas utility, telecommunications company, cable company, wireless service provider, water utility, storm water utility, wastewater utility, or a person that does not provide wireless services but builds or installs on behalf of a wireless service provider for network nodes, or node support poles, regardless of whether or not the service provider is publicly or privately owned or required to operate within the city pursuant to a franchise. The term “service provider” does not include persons performing installation or maintenance of service lines not owned by a service provider.

Thoroughfare.

A public right-of-way that is a public traffic arterial or collector street.

Transport facility.

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.

Utility pole.

A pole that provides:

Electric distribution with a voltage rating of not more than 34.5 kilovolts; or

Wireless service provider.

Services of a telecommunications provider, as defined by Section 51.002, Utilities Code.

Wireless service.

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.

A person that provides wireless service to the public.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-258 Public rights-of-way construction.

No person shall commence or continue with the construction of facilities within the public rights-of-way in the city except as provided by the ordinances of the city. All construction activity in public rights-of-way will be in accordance with this article.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-259 Registration of service provider.

A service provider with existing facilities within the public right-of-way must register with the city within 60 days of the effective date of this chapter. Any service provider who does not have existing facilities within the public right-of-way and who wishes to install new facilities must first register with the city. Registration shall be in accordance with the following requirements:

Prior to registration, a service provider must be either a certificated telecommunications provider under Texas Local Government Code Chapter 283, have a certificate of convenience and necessity under Texas Water Code Chapter 13, have a franchise, interlocal or license agreement with the city or be authorized by state statute to operate facilities within the public right-of-way. Registration shall otherwise be denied.

The registration must be on a form furnished by the director of community development and made in the name of the service provider that owns the facilities. The form must be filled out completely and accurately. Any omissions or inaccuracies on the form may be cause for denial of the registration at the city’s discretion.

If information provided as part of the registration changes, the service provider must inform the director of community development in writing not more than 30 days after the date the change occurs.

The service provider shall include the following with the registration:

The name of the public service provider using the public right-of-way, including any business name, assumed name, or trade name the service provider operates under, or has operated under within the past five years.

If the public service provider is a certificated telecommunications provider, a copy of the certification issued by the Texas Public Utilities Commission to provide local exchange telephone service.

A copy of any franchise, agreement or license issued by the city or statute authorizing the service provider to use the public right-of-way.

The name and mailing address of the officer or agent designated as the person authorized to receive service of process on behalf of the service provider.

§ 94-260 Service provider insurance requirements.

The service provider must provide proof of insurance and appropriate bonds. The requirements for insurance and bonds are provided in section below.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

A service provider shall obtain and maintain insurance throughout the time it has facilities in public rights-of-way. The city reserves the right to review the insurance requirements, and to reasonably adjust insurance coverage and limits when the city attorney determines that changes in statutory law, court decisions, or the claims history of the industry or the public service provider require adjustment of the coverage. Insurance policies shall meet the following minimum requirements:

Workers’ Compensation and Employer’s Liability Insurance
Workers’ Compensation	Statutory Limit
Employer’s Liability	$100,000.00 Each Accident
- $100,000.00 Disease	- Each Employee
- $500,000.00 Disease	- Policy Limit
(Employer’s Liability not required if policy limit is greater than $10,000,000.00)

Liability Insurance
Commercial General Liability	$1,000,000.00 Per Occurrence
(No standard coverages are to be excluded by endorsement) The policy shall provide blanket contractual liability insurance for all written contracts and shall include coverage for products and completed operations liability, independent contractor’s liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage.

Automobile Liability Insurance
Commercial Auto Liability Policy	$500,000.00 Combined Single Limit
(Including coverage for owned, hired, and non-owned autos)

Umbrella Liability
(Following Form and Drop Down Provisions Included)	$5,000,000.00 Each Occurrence

In addition to the above requirements, the insurance required under this section shall:

Be written with the City of Wichita Falls as an additional insured, except on worker’s compensation and employer’s liability insurance, using an endorsement Form GC 20 26 or broader;

Provide for a 30-day notice of cancellation to the city, for nonpayment of premium, material change, or any other cause;

Be written through companies duly authorized to transact that class of insurance in the State of Texas. Insurance is to be placed with insurers with a Best Rating of no less than A-:VII;

Waive subrogation rights for loss or damage so that insurers have no right to recovery or subrogation against the City of Wichita Falls, it being the intention that the required insurance policies shall protect the city, its officers, and employees and be primary coverage for all losses covered by the policies; and

Provide that notice of claims shall be provided to the director of community development by certified mail.

The policy clause “Other Insurance” shall not apply to the city if the city is an additional insured under the policy.

For purposes of this section, the city will accept a self-insurance program of the public service provider if the approved in advance by the city and:

Provides the equivalent coverage as required herein if the service provider demonstrates by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the city; or

In the case of a cable service provider who holds a state-issued certificate of authority and is self-insured under the provisions of state law, such self-insurance program provides the same defense and claims processing as required by this section.

A certificate of insurance providing proof of coverage shall be provided to the director with the registration form.

If a public service provider is subject to statutory limitations for damages resulting from liability less than the minimum coverages provided in division (B)(1) above, the public service provider shall not be required to provide proof of insurance coverages in excess of the statutory requirements.

The requirements for insurance may be satisfied by service providers with a current franchise or license or other agreement if their current franchise or license adequately provides for insurance coverage which will afford equivalent protection for the city. The requirements for bonds may be satisfied by service providers with a current franchise, interlocal or license agreement if the agreement adequately provides for bonds.

§ 94-261 Service provider bonding requirements.

After registration has been completed, a separate construction permit for each work location must be obtained from the director of community development. Nothing in this section relieves a service provider from obtaining a construction permit under this chapter to perform work in the public right-of-way, except as otherwise provided in this chapter.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

A service provider that has assets in excess of $20,000,000.00 may annually submit a written request for a waiver from the bonding requirements. The request for a waiver shall be filed not later than the November 1 before the calendar year for which the waiver is sought.

The request shall set forth in detail the basis for the request including but not limited to:

The service provider’s performance history in the city;

Documentation, in a form acceptable to the city, that demonstrates that the public service provider has assets in excess of $20,000,000.00; and

Documentation, in a form acceptable to the city, that demonstrates that the public service provider has assets or reserves sufficient to cover the amount of the bonds.

Within 30 business days of receipt of a written request for a waiver, the director of community development, with good cause, may grant a waiver to the bonding requirements. In making this decision, the Director shall take into account, among other things:

The service provider’s record of performance in the city’s right-of-way;

The service provider’s record of compliance with this chapter;

A showing of financial responsibility by the service provider to complete the proposed project; and,

Any other factors deemed relevant to management of the city’s right-of-way.

§ 94-262 Persons other than service provider bond requirements.

A bond may not be required from a service provider for any work consisting of aerial construction except that a bond as provided for herein may be required of a provider that cannot demonstrate a record of at least four years’ performance of work in any municipal public right-of-way free of currently unsatisfied claims by a municipality for damage to the right-of-way.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

A bond shall accompany an application for a permit required under this division. The bond shall be payable to the city and shall be approved by the city attorney as to form and sufficiency.

The bond shall be conditioned as follows:

All sidewalks, curbs, curb cuts, driveways, or streets on the public right-of-way which are to be constructed, reconstructed, or repaired by such person, during the time for which the bond is written, shall be done and completed in accordance with plans and specifications and all ordinances relating thereto and to the satisfaction of the director of public works.

The quality of materials used in the construction of all such curbs, curb cuts, driveways or streets on the public right-of-way shall be such as is prescribed by the specifications governing each improvement, and such sidewalks, curbs, curb cuts, driveways, or streets on the public right-of-way shall stand the ordinary wear and tear of traffic without deterioration for a term of two years from the completion thereof.

The city shall be held harmless from any and all losses, damages, judgments or decrees that the city may sustain or be subjected to, directly or indirectly, because of any faulty construction of such sidewalks, curbs, curb cuts, driveways, or streets on the public right-of-way or work connected therewith or for the failure of such obligor, his agents or employees to guard and light properly all openings and obstructions that may be made or placed in the street or where the work is to be constructed, during the time that the work is being done or in connection therewith.

The obligor, upon the completion of each sidewalk, driveway, curbing, curb cut or street on the public right-of-way, shall remove all building material and accumulation of debris from the street in which any sidewalk, curb, curb cut, or street on the public right-of-way is built arising through or in connection with such construction.

The city is authorized to bring suit in the name of the city for the use and benefit of such person against the obligor of such bond and to prosecute the action to final judgment and execution, provided that such action, if done at the insistence of any person, shall involve the city in no expense. No more than one bond of the amount specified in this section shall be required of any one person during the term of the bond, unless recovery shall be had upon such bond in any action at law as provided in this section so as to exhaust the obligation contained in such bond, in which event, the mayor shall require a new bond to be executed. Such new bond shall be governed by the same formalities and conditions as prescribed in this section, provided that nothing in this section shall be construed to relieve such person from complying with the city specifications which are on file in the office of the department of public works and state law.

If the work is to consist of sidewalks, curbs, curb cuts, or driveways only, the amount of the bond shall be $2,000.00. If the work is to consist of any other type of paving, the amount of the bond shall be $10,000.00. However, the city shall have the right to require an additional bond on any work done under contract for the city, provided the additional bond is required in the special instructions to bidders.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-263 Construction permit.

Prior to any construction in the public right-of-way by a service provider or any other person, a construction permit shall be obtained, except as provided herein, or as waived by the director of public works. The permit will be issued in the name of the person who owns or will own the facilities to be constructed. The permit application must be completed and signed by the owner of the facilities to be constructed.

Emergency repairs related to existing facilities may be undertaken without first obtaining a permit in accordance with section 94-273 below.

A construction permit is not required if the activity in the public right-of-way consists exclusively of:

Installation and maintenance of a service line if the connection does not require a pavement cut in the right-of-way; or

Replacing or upgrading a network node or network node support pole to the same size; or

If installation of micro network node is strung on lines between poles or node support poles; or

The replacement of a single damaged pole and associated work within a 10-foot radius of the damaged pole; or

Installation of aerial lines on existing poles; or

Repair and maintenance of existing facilities unless such repair or maintenance requires a pavement cut, the closure of a traffic lane for a period greater than eight hours, excavation or boring.

An applicant for a permit required under this division shall file with the director of community development an application showing the following:

The name and address of the owner or agent in charge of the property abutting the proposed work area.

The name and address of the party doing the work.

Plans shall provide the following information, except when only replacing existing drive approaches, sidewalk or curb and gutter.

The proposed location and route of all facilities to be constructed or installed and the design plan for public right-of-way construction.

ii.

Plans shall be on a scale acceptable to the city engineer.

iii.

Detail of the location of all right-of-way and utility easements which applicant plans to use.

iv.

Detail of all known facilities in approximate relationship to applicant’s proposed route.

Detail of what applicant proposes to install, such as conduits, ducts, pipe and duct size, number of interducts, valves, pull boxes, etc.

vi.

Detail of plans to remove and replace asphalt, brick or concrete in streets, alleys, and easements. Plans shall include city standard construction details.

vii.

Drawings of any bores, trenches, handholes, manholes, switch gear, transformers, pedestals, etc. including depth located in public rights-of-way.

viii.

Handholes and/or manholes typical of the type of manholes and/or handholes applicant plans to use or access.

ix.

Complete legend for drawings submitted by applicant, or a legend standard may be filed with city engineer for reference.

The Construction methods to be employed for the protection of existing structures, fixtures, and facilities within or adjacent to the public right-of-way, and the dates and times work will occur, all (methods, dates, times, etc.) are subject to approval of the city engineer.

xi.

A written schedule identifying the planned work and, anticipated phasing if applicable.

xii.

If required by law, two sets of plans prepared by a licensed professional engineer must be submitted with permit application.

An estimate of the cost of the operation.

Such other information as the director of community development shall find reasonably necessary to the determination of whether a permit shall be issued.

All construction in the public right-of-way shall be in accordance with the construction permit and the requirements of this article. The director of public works shall have access to the work and to such further information as the director of public works may reasonably require to ensure compliance with the permit.

Prior to commencement of any work under the permit service provider shall provide the director of public works with the name, address and phone number of the contractor(s) and subcontractor(s) who will perform the actual construction together with the name and phone number of an individual with the contractor(s) and subcontractor(s) who will be available at all times during construction.

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 at all times when construction work is occurring.

All construction 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, an extension from the director of public works may be requested. If the request for an extension is made prior to the expiration of the permit, work under the permit may continue while the request for an extension is pending.

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, must be provided if the work will extend into the public right-of-way.

An application for a permit must be submitted before the commencement of the proposed work as follows:

Twenty-one days for projects requiring no permanent structure(s) and less than 1,000 linear feet of facilities; and

Sixty-days for all other projects.

The required time periods may be waived by the director of public works.

The city shall advise the service provider in writing of its final decision, and, if denied, the basis for that denial, including specific provisions of this Code or applicable law on which the denial was based, and send the documentation to the service provider on or before the day the city denies the application. The service provider may cure the deficiencies identified by the city and resubmit the application within 30-days of the denial without paying an additional application fee. The city shall approve or deny the revised application within 90-days of receipt of the amended application. The subsequent review by the city shall be limited to the deficiencies cited in the original denial.

(i)

The director of public works or the applicant may request a pre-construction meeting with the construction contractor.

(j)

If the city fails to act on an application within the review period specified in this section, the application shall be deemed approved.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-264 Service line permit.

It shall be unlawful for any person except service provider’s registered under section 94-259 to excavate and/or make pavement cuts in any public right-of-way for the purpose of service line installation or maintenance without first:

Making application for a service line permit from the director of community development agreeing to the repair and restoration of the public right-of-way in accordance with the prescribed city specifications;

Providing a plan for the service line excavation and restoration of said public right-of-way;

Providing the bond requirements detailed in this article; and

Providing evidence of insurance as required by the permit application.

The director of public works upon investigation of the location, purpose, extent and time of the disturbance of the surface of the public right-of-way may grant or, for an expressed reason, refuse permission for the service line permit.

All excavations and/or pavement cuts in public right-of-way shall be maintained and repaired in accordance with this article and city standards.

The person doing the excavation and/or pavement cuts shall be fully responsible for safeguarding persons and property from damages or injury.

§ 94-266 General public rights-of-way use and construction.

If applicable, any persons doing excavation and/or pavement cuts shall minimize disruptions to access to adjacent property by coordinating their schedule with other persons in the vicinity working in the public right-of-way. When coordination conflicts occur, the director of public works shall coordinate the work to reduce access problems.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-265 Fees.

Before any permit shall be granted under this division, a fee as provided by separate ordinance shall be paid by the applicable person, service provider, or contractor to the director of community.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

Minimal interference.

Work in the public right-of-way shall be done in a manner that causes the least interference with the rights and reasonable convenience of adjacent property users, owners, and residents. Service provider’s facilities shall be constructed or maintained in such a manner as not to interfere with sewers, water pipes, or any other property of the city, or with any other pipes, wires, conduits, pedestals, structures, or other facilities that have been constructed in the public right-of-way by, or under, the city’s authority. The service provider’s facilities shall be located, erected, and maintained so as not to endanger or interfere with the lives of persons, obstruct the free use of the public right-of-way or other public property, and shall not interfere with the travel and use of public places by the public during the construction, repair, or removal thereof except as authorized by this article or the director of public works. This subsection shall not be construed to require relocation of any facility that was completed or under construction on the effective date of this article, provided nothing in this subsection reduces or restricts the city’s right to require a service provider to relocate facilities as required by other law.

Locations and notifications:

A permit does not relieve a person or service provider of the responsibility to coordinate with other utilities and to protect existing facilities. Any person or service provider working in the public right-of-way is responsible for obtaining line locates from all affected utilities or others with facilities in the public right-of-way prior to any excavation.

Any person or service provider shall be responsible for verifying the location, both horizontal and vertical, of all facilities. When required by the director of public works, any person or service provider shall verify location by potholing, hand digging or another method approved by the director prior to any excavation or boring.

Before beginning excavation in any public right-of-way, a service provider shall contact the Texas Underground Facility Notification Corporation to the extent required by V.T.C.A., Utilities Code Ch. 251, make inquiries of all ditch companies, utility companies, districts, local governments, and all other service providers that might have facilities in the area of work to determine possible conflicts.

Any person or service provider shall support and protect all pipes, conduits, ducts, poles, wires, structures, pavement, other apparatus and equipment and property improvements and landscaping which may be affected by the work from damage during construction or settlement of trenches subsequent to construction.

Underground construction versus use of poles.

In areas where all facilities are installed underground at the time of service provider’s construction, all service provider’s facilities shall also be placed underground at no expense to the city, unless otherwise approved by the director of public works or designee. Related equipment, such as pedestals, must be placed in accordance with the city’s applicable code requirements and rules, including all visibility easement requirements. However, related equipment in city alleys, utility easements, or in front of residential structures must be placed underground or flush mount with the ground surface by means of a hand-hole, junction box, pull box, or vault. Flush mounted hand-holes must be no larger than 24" wide by 24" long by 24" deep and must be rated for vehicular traffic when placed within the right-of-way or alleys. Flush mounted hand-holes must not be placed to hinder the use of the sidewalk or within three feet horizontally from existing city utilities (water, sewer, drainage). Where such underground requirement is not suitable, upon written request, modification may be allowed by the director of public works or designee. If existing equipment is removed or replaced, such new equipment shall be in accordance with these regulations. In areas where existing facilities are aerial, the service provider may install aerial facilities.

For above-ground facilities, the service provider shall utilize existing poles wherever reasonable.

Wireless network nodes.

Prior to the installation of any wireless network node within the incorporated boundary of the city, a network provider shall enter into an agreement with the city. All wireless network nodes shall meet the requirements of Texas Local Government Code Chapter 284.

Collocate network nodes.

A network provider seeking to collocate network nodes may, at the network provider’s discretion, file a consolidated application and receive permits for up to 30 network nodes. Provided, however, the city’s denial of any node within a single application shall not affect other nodes submitted in the same application. The city shall grant permits for any and all nodes in a single application that it does not deny, subject to the requirements of this section.

Historic district.

A network provider shall obtain advance approval from the landmark commission prior to collocating network nodes; or installing new node support poles in areas designated as a historic district if the district has decorative poles. As a condition of approval, the landmark commission may require new network nodes or new node support poles to be concealed in such a way as they do not detract from the historic nature of the district.

Access and use of municipal owned utility poles.

Prior to the installation of any network node on city owned service poles, a network provider shall enter into a wireless network node city service pole agreement with the city.

The service provider must provide a design load analysis for all network nodes to be installed on city service poles.

The network node shall be removed or relocated at the owner’s expense as required to allow for the relocation or maintenance of city service poles.

§ 94-267 Minimizing the impacts of work in the public rights-of-way.

Private easements.

Any person, service provider and network provider shall comply with private deed restrictions and other private restrictions in areas that apply to those facilities.

(i)

Excavation safety.

On construction projects in which excavation exceeds a depth of four feet, the service provider must have detailed plans and specifications for excavation safety systems. The term excavation includes trenches, structural or any construction that has earthen excavation subject to collapse. The excavation safety plan shall be designed in conformance with state law and Occupational Safety and Health Administration (OSHA) standards and regulations.

(j)

Erosion control.

The service provider shall be responsible for providing stormwater management and erosion control that complies with city, state and federal guidelines.

(Ordinance 35-2017, sec. 1, adopted 9/5/17; Ordinance 63-2021 adopted 11/16/21)

Any person, service provider or contractor shall conduct work in such manner as to avoid unnecessary inconvenience and annoyance to the general public and occupants of neighboring property. In the performance of the work, any person, service provider or contractor shall take appropriate measures to reduce noise, dust, and unsightly debris. No work shall be done between the hours of 9:00 p.m. and 7:00 a.m. in residential areas, except with the written permission of the director of public works, or in case of an emergency.

Any person, service provider or contractor shall maintain the work site so that:

Solid waste and construction materials are contained on the construction site.

Solid waste is removed from a construction site daily so that it does not become a health, fire, or safety hazard.

Solid waste receptacles and storage or construction trailers shall not be placed in any public right-of-way without specific approval of the director of public works.

Any person, service provider or contractor shall protect trees, landscape, and landscape features. All protective measures shall be provided at the expense of the person, service provider or contractor.

Any person, service provider or contractor shall protect from injury any public right-of-way and adjoining property by taking all necessary measures. Service provider or contractor shall, at its own expense, shore up and protect all buildings, walls, fences, or other property likely to be damaged during the work and shall be responsible for all damage to public or private property resulting from failure to properly protect and carry out work in the public right-of-way.

As the work progresses, all public right-of-way and private property shall be thoroughly cleaned of all rubbish, excess dirt, rock, and other debris. All clean-up operations shall be done at the expense of the person, service provider or contractor. Any person, service provider or contractor shall restore any disturbed area to its original condition.

Any person, service provider or contractor shall ensure neighborhood parking adjacent to a work site is not adversely impacted and maintain a public walkway approved by the director of public works around a construction site that blocks a public sidewalk or path.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-268 Facility locations.

All facilities in new developments shall be located in accordance with the subdivision and development regulations unless an alternative location has been approved by the director of public works. Such utility locations are hereby adopted as standard locations for utilities in new developments. The intent of these items is that they serve as a standard for service providers whose routine business requires the installation, repair, or relocation of utilities.

Facilities to be installed in previously developed streets and alleys should be located the same as in new developments when possible. If the location shown cannot be used by the service provider, the new or replacement facilities shall be a minimum of four feet horizontal from the outer pipe of existing water, sewer or stormwater utilities. If crossing city facilities, other facilities shall be two feet below the outer pipe of existing water, sewer or stormwater utilities. Other locations must be approved by the director of public works.

Underground facilities shall have a minimum 24 inches of cover. When placed under pavement structures, the facility shall be a minimum 24 inches below the bottom of the pavement structure. Facilities and service lines shall cross perpendicular to the pavement and have a minimum two-foot separation from the pavement structure if running longitudinal. All underground facilities shall be traceable by standard practices.

Guy wires, anchors, and other above-ground facilities shall not be less than 16 feet in height as it crosses any street or 14 feet as it crosses any alley, eight feet in height over a sidewalk area and shall be located not less than two feet from the back of street curbs or edge of street paving. If an encroachment is less than eight feet in height over a sidewalk area, the sidewalk must be widened at the service provider or contractors expense to provide the necessary clearance as approved by the director of public works. All aerial facilities shall be located above or behind all traffic signal heads with no impact on the visibility of the traffic signal head.

All poles shall be located a minimum of two feet behind the back of the curb and gutter.

Network node. A network node minimum spacing shall be 300 feet. Network node poles shall be located within two feet of the ROW unless located in a dedicated utility easement. Network node poles shall not encroach into or block the sidewalk. Sidewalk relocation shall be approved by the director of public works at the expense of the network provider as required. All network pole mounted node equipment shall be placed eight feet above the ground. Each network node shall be identified with a four-inch by six-inch metal tag with the service provider name and contact information.

A network provider shall ensure that each new, modified, or replacement utility pole or node support pole installed in a public right-of-way in relation to which the network provider received approval of a permit application does not exceed the lesser of:

Ten feet in height above the tallest existing utility pole located within 500 linear feet of the new pole in the same public right-of-way; or

Fifty-five feet above ground level.

A network provider may not install a new node support pole in a public right-of-way without the municipality’s discretionary, nondiscriminatory, and written consent if the public right-of-way is in a municipal park or adjacent to a street or thoroughfare that is:

Not more than 50 feet wide; and

Adjacent to single-family residential lots or other multifamily residences or undeveloped land that is designated for residential use by zoning or deed restrictions.

(i)

Any person, service provider or contractor replacing, repairing or adding a drive approach must comply with the requirements set in section 94-98 of this chapter and meet the city standards.

(j)

Any person, service provider or contractor replacing, repairing or adding curb and gutter must comply with the requirements set in section 94-100 of this chapter and meet the city standards.

(k)

Any person, service provider or contractor replacing, repairing or adding sidewalk must comply with the requirements set in section 94-127 of this chapter and meet the city standards.

(l)

Any person, service provider or contractor replacing, repairing or adding alley pavement must comply with the city standards as approved by the director of public works.

(m)

Any person, service provider or contractor replacing, repairing or adding medians or making a median cut must comply with the requirements set in article II division 5–Median Cuts of this chapter and meet the city standards.

(n)

Temporary facilities may be located in nonstandard locations as authorized by the director of public works.

(o)

Any encroachment of a facility within the sidewalk or path area of a public right-of-way must comply with all requirements of the Americans with Disabilities Act at the expense of service provider.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-269 Traffic control.

Except as otherwise provided herein, no person, service provider or contractor may partially or completely close or obstruct a public street or alley without approval for a temporary street closure from the traffic engineering division at the time an application for either a construction or service line permit, unless an emergency exists.

All traffic control barricading and methods shall comply with the most recent version of the Texas Manual on Uniform Traffic Control devices or any successive publication thereto. No person, service provider or contractor shall block access to and from private property, block vehicles, block access to fire hydrants, fire stations, fire escapes, water valves, underground vaults, valve housing structures, or any other vital equipment unless the person, service provider or contractor provides the director of public works with written verification of written notice delivered to the owner or occupant of the facility, equipment, or property at least 48 hours in advance, except in case of an emergency.

§ 94-270 Requirements for excavations and pavement cuts.

When necessary for public safety the service provider or contractor shall employ flag persons whose duties shall be to control traffic around or through the construction site.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

Permanent repairs of pavement cuts in the right-of-way shall be completed by the person, service provider or contractor in accordance with city standard specifications for utility construction in city right-of-way and easements. Failure to comply within 14 days of notification by the city shall result in the use of the person’s or service provider’s bond and the requirement of additional bond(s) and/or the denial of future permits.

The person, service provider or contractor shall be responsible for maintaining all excavations and pavement cuts in such a manner as to avoid a hazard to vehicular and pedestrian traffic until permanently repaired.

Any person, service provider or contractor shall be required to maintain the interim repairs until final repairs are completed.

When further repairs are deemed necessary by the director of public works to correct a hazardous situation the person, service provider or contractor responsible for the excavations and/or pavement cuts shall be notified immediately. If the person, service provider or contractor does not make the repair or provide an acceptable schedule within eight hours of being notified, the repairs can be performed by the city and billed to the person, service provider or contractor.

All damage caused directly or indirectly to the street surface or subsurface outside the pavement cut area shall be regarded as a part of the pavement cut. These areas, as established by the director of public works, will be included in the total area repaired.

The person, service provider or contractor shall notify the director of public works immediately of any damage to other facilities as well as the owner of the affected facility.

All excavations, pavement cuts, and refilling or repairing done in pursuance of this article shall be made under the supervision of the director of public works. It shall be the duty of the director of public works to require the work to be done in compliance with the city standards, requirements of this article and all other sections of this Code and city ordinances.

§ 94-271 Construction and restoration standards for newly constructed or overlayed streets and alleys.

The person, service provider or contractor who shall dig any hole, ditch or trench or make any excavation in any of the city streets or alleys shall not leave such excavation, hole, ditch, or trench open at any time after sundown of any day without having the hole, ditch or trench properly guarded by placing approved warning devices in accordance with the Texas Uniform Manual of Traffic Control Devices and may be required to put up a temporary fence or other obstruction so as to prevent persons or animals falling into such excavation.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

No service provider or contractor shall be allowed to open trench excavation or potholing of facilities in the pavement or pavement structures of any public right-of-way for a period of three years from the completion of new street construction or overlay of streets except in compliance with the provision of this section.

Any application for a construction permit to excavate in public right-of-way subject to the requirements of this section shall contain the following information:

A detailed and dimensional engineering plan that identifies and accurately represents the public right-of-way and property that will be impacted by the proposed excavation, as well as adjacent streets, and the method of construction.

The street or alley width including curb and gutter over the total length of each city block that will be impacted by the proposed construction.

The location, width, length, and depth of the proposed excavation.

The total area of existing street or alley pavement, and/or improved surfaces in each individual city block that will be impacted by the proposed excavation.

A written statement addressing the criteria for approval set forth in subsection (c) below.

No construction permits for excavation in the public right-of-way that effects a newly constructed or overlayed street or alley shall be approved unless the director of public works finds that all of the following have been met:

Boring or jacking without disturbing the pavement is not practical due to physical characteristics of the street or alley or other facilities.

Alternative facilities alignments that do not involve excavating the street or alley are found to be impracticable.

The proposed construction cannot reasonably be delayed until after the three-year deferment period has lapsed.

The streets or alleys shall be restored and repaired in accordance with design and construction standards provided by the director of public works or as established and adopted by the city.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-272 Abandonment of facilities.

Any service provider that intends to abandon its use of any facilities within the public right-of-way shall notify the director of public works in writing of the intent to abandon facilities. Such notice shall describe the facilities to be abandoned, a date of abandonment, and the method of removal of the facilities and for restoration of the public right-of-way.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-273 Emergency procedures.

Any service provider maintaining facilities in the public right-of-way may proceed with emergency repairs upon existing facilities without a permit when circumstances demand that the work be done. Emergency maintenance operations shall be limited to circumstances involving the preservation of life, property, or the restoration of customer service. Any service provider or contractor commencing operations under this section shall submit detailed construction locations and repair methods no later than ten business days after initiating the emergency maintenance operation to the director of public works.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-274 Record plans.

If installations do not follow the plans originally submitted under section 94-263 above, the service provider shall provide the director of public works with updated construction drawings within 90-days of completion of facilities in the public right-of-way. The plans shall be provided to the city with as much detail and accuracy as available to the service provider. The detail and accuracy must concern issues such as location, size of facilities, materials used, and any other health, safety and welfare concerns. The detail will not include matters such as capacity of lines, customers, or competitively sensitive details. If information submitted includes information designated as trade secrets or as confidential, the information may not be disclosed by the city without the consent of the public service provider unless it is compelled to disclose the information by the Texas Attorney General pursuant to the Texas Public Information Act or by a court order.

§ 94-275 Conformance with public improvements.

This requirement, or portions of this requirement, may be waived by the director of public works.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

Whenever by reasons of widening or improvements to public right-of-way, water or sewer line projects, drainage improvements, or other public works projects, it shall be deemed necessary by the city to remove, alter, change, adapt, or conform the underground or overhead facilities of a public right-of-way user to another part of the public right-of-way, such alterations shall be made by the owner of the facilities at its expense unless provided otherwise by state law or a franchise agreement within the time limits set by the director of public works working in conjunction with the owner of the facilities. Facilities not moved within the approved schedule set by the director of public works, shall be moved by city at facility owner’s expense.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-276 Improperly installed facilities.

Any person doing work in the public right-of-way shall properly install, repair, upgrade and maintain facilities in accordance with this article.

Facilities shall be considered to be improperly installed, repaired, upgraded or maintained if:

The installation, repairs, upgrade or maintenance endangers people or property;

At the time of installation the facilities did not meet applicable city, state or federal codes;

The facilities are not capable of being located using standard practices;

The facilities are not located in the proper place at the time of construction in accordance with the permit and engineering plans approved by the director of public works.

Facilities determined by the director of public works to have been improperly installed, repaired, upgraded or maintained shall be properly installed, repaired, upgraded or maintained immediately upon receipt of notice from the director of public works.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-277 Restoration of property.

Users of the public 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 work.

Restoration must be to the reasonable satisfaction of the Director of Public Works. The restoration shall include, but not be limited to:

Replacing city parks department maintained landscaping with the type of ground cover and other landscaping damaged during work, or better, either by planting, sodding, or seeding, as directed;

Installation of all manholes and handholes, as required;

All bore pits, potholes, trenches or any other holes shall be filled in, covered, or barricaded daily, unless other safety requirements are approved;

Compaction and leveling of all trenches and excavations;

Restoration of site to city specifications;

(6)

Restoration of all city maintained sprinkler systems, retaining walls, planters, and other public improvements.

All locate flags shall be removed during the cleanup process by the service provider or contractor at the completion of the work.

Restoration must be made in a timely manner as specified by the director of public works. If restoration is not satisfactory or performed in a timely manner all work in progress, except that related to the problem, including all work previously permitted but not completed may be halted and a hold may be placed on any permits not approved until all restoration is complete.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-278 Indemnification.

Except as to certificated telecommunication providers, or a public service provider whose current franchise contains an indemnity which provides that it is controlling over this provision, each person and public service provider installing, maintaining, removing or repairing 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 including any and all claims, lawsuit, judgments, costs, liens, losses expenses, fees (including reasonable attorney’s fees and costs of defense) proceedings, actions demands, causes of action, liability, and suits of any kind and nature, including personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought, that is found by a court of competent jurisdiction to be caused solely by the negligent act, error, or omission of the public service provider or any agent, officer, director, representative, employee, affiliate, or subcontractor of the public service provider or their respective officers, agents, employees, directors, or representatives, or any other person while installing, repairing, maintaining, or removing facilities in a public right-of-way.

The indemnity provided by this section does not apply to any liability resulting from the negligence of the city or its officers, employees, contractors, or subcontractors. If the public service provider and the city are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the city under state law and without waving any defenses of the parties under state law.

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.

§ 94-279 Denial, suspension, revocation, or extension of permit.

A permittee who is a certificated telecommunication provider as defined in Texas Local Government Code Chapter 283, as amended, shall give the city the indemnity provided in Texas Local Government Code sec. 283.057, as amended.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

Denial of a permit.

A permit (construction and service line) may be denied for any of the following reasons:

Not having proper insurance for the required amounts.

Consistently failing to perform in accordance with the requirements of this article.

Requesting to cut a city-maintained street that can be crossed by jacking, boring or tunneling.

Proposing barricading, channelizing, signing, warning or other traffic control procedures or equipment that does not comply with the requirements of the Texas Manual on Uniform Traffic Control Devices.

The activity or the manner in which it is to be performed shall violate a city ordinance or a state or federal law.

(6)

Failure to furnish all of the information required under this article or, except for good cause shown, to file the registration or construction or service line permit applications within the time prescribed.

(7)

Misrepresenting or falsifying any information in the registration or construction or service line permit applications.

(8)

Failing to provide a surety bond or other acceptable security or comply with the performance guarantee.

(9)

Owing outstanding debts to the city.

(10)

Lack of available space in the public right-of-way.

(11)

Proposed activity will substantially interfere with vehicular or pedestrian traffic and no procedures have been implemented to minimize the interference.

Suspension of a permit.

The director of public works may suspend any or all permits granted to allow work in the public right-of-way for the following reasons subject to the procedural guidelines noted in this article and any agreement that applies to the service provider, or its contractors, using the public right-of-way, as well as any limitations imposed by federal or state law:

Failing to comply with an order; or

The recognition that a permit was issued in error; or

Failing to comply with restrictions or requirements placed on the permit; or

Any safety violation which create peril to the public; or

Violating any provision of this article.

The director of public works may reinstate a previously suspended permit when the conditions that caused such permit to be suspended are remedied to the satisfaction of the director.

§ 94-280 Authority; enforcement; offenses.

Revocation of a permit.

If no work has begun on a permitted project within 30 calendar days of issuance of the permit, the permit shall be null and void, and a new permit shall be required.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

The director of public works is authorized to administer and enforce the provisions of this article and to promulgate regulations to aid in its administration and enforcement that are not in conflict with other provisions of this Code, or state or federal law.

The director of public works is authorized to enter upon a construction site for which a permit is granted or, where necessary, private property adjacent to the construction site, for purposes of inspection to determine compliance with the provisions of the permit and this article.

(Ordinance 35-2017, sec. 1, adopted 9/5/17)

§ 94-281 Penalty and injunction.

Any violation of a provision of this article is declared to be a violation of an ordinance involving health and safety. Accordingly, it shall be punishable by a fine in an amount as provided by section 1-14 of this Code.