For the purposes of this article the following words, terms, and phrases shall have the meanings ascribed thereto, unless the context of their usage clearly indicates otherwise.
Building official
shall mean the building official of the city or his designee.
City
shall mean the City of El Lago, Texas, a general law municipal corporation of the State of Texas.
City council
shall mean the governing body of the city.
Emergency
shall mean a situation which, unless immediate remedial action is taken, will likely result in harm to public health, safety, and/or welfare.
Facilities or facility
shall mean and include, but shall not be limited to, pipes, conduits, wires, cables, towers, switches, amplifiers, transformers, fiber optic lines, antennae, poles, ducts, conductors, lines, mains, vaults, appliances, attachments, equipment, structures, manholes, fixtures, appurtenances, dumpsters, recycle bins, trailers, junk, items for sale, and such other objects, devices, or other items of tangible personal property, which are designed, constructed, installed, placed, used or operated in, upon, over, across, above, or below public rights-of-way. Notwithstanding the foregoing, structures designed and constructed for the support and passage of vehicular and pedestrian traffic, such as streets, alleys, highways, driveways, and sidewalks, whether at, below, or above grade, shall not be deemed to be facilities. Provided, further, a private, individually owned, connection and/or attendant downstream service line or device, through which a utility service is received by the end user owning same, for which required permits have been issued under applicable building, plumbing, electrical, or other codes of the city, shall not be deemed as facilities hereunder. Provided, further, that the term facilities shall not include any utility service owned and operated by the Harris County Water Control and Improvement District No. 50.
Mayor
shall mean the mayor of the city or his designee.
Person
shall mean an individual, corporation, association, partnership, joint venture, firm, limited liability partnership, joint stock company, association, governmental entity other than city or any other public or private entity.
Public rights-of-way or public right-of-way
shall mean the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, easement, or similar property within the corporate limits of the city, and in which the city holds a property interest (fee title, easement or otherwise), or over which the city holds and exercises a right of management or control, and which, consistent with the purposes for which it was acquired or dedicated, may be used for the installation and maintenance of facilities.
User
shall mean a person having facilities within a public right(s)-of-way.
(Ordinance 352, sec. 2, adopted 9/11/06)
(a) 
Except as otherwise specifically provided by law, this article, or any other ordinance of the city applicable thereto, it shall be unlawful for any person to cause or permit the placement, construction, operation or maintenance of any facility within public rights-of-way, unless authorization has been granted by the city in accordance herewith or in accordance with such other ordinance of the city applicable thereto. Provided, further, nothing herein shall be construed as superseding or preempting any provision of the city’s zoning regulations, including zoning or regulations applicable to wireless telecommunications facilities.
(b) 
Except as otherwise specifically provided by law, this article, or any other ordinance of the city applicable thereto, a person commits an offense if the person causes, creates or maintains any obstruction of any public rights-of-way.
(c) 
A person commits an offense if the person uses any street, sidewalk, or other public place as space for the display of goods or merchandise for sale, or writes or makes any sign or advertisement on any pavement within said street or public rights-of-way.
(d) 
A person commits an offense if the person erects or maintains any building or structure that encroaches upon the public rights-of-way.
(1) 
It is an affirmative defense to prosecution under this section that: the person has a city permit for said activity;
(2) 
This section shall not apply to legally parked vehicles.
(Ordinance 352, sec. 3, adopted 9/11/06)
(a) 
It shall be unlawful for any person to place facilities within public rights-of-way without having first filed with the city an application for registration therefor. Applications for registration shall be filed with the city secretary of the city. The city secretary shall issue a registration certificate to each person successfully completing and filing such application. Each registration certificate shall be issued in the name of the user. Registration certificates shall be renewed every sixty (60) months. When information provided in an application for a registration certificate is no longer correct, the user shall inform the city, in writing, within thirty (30) days following the date of such change. Additionally, all persons with facilities within the public rights-of-way at the time of the adoption of this article shall file an application for registration therefor within sixty (60) days of said adoption.
(b) 
Each application for registration shall include:
(1) 
The name and legal status of the user;
(2) 
The name, address, telephone number, e-mail address, and fax number of the individual(s) who will be the contact(s) for the user;
(3) 
The name, address, telephone number, e-mail address, and fax number of the individual(s) who will be the contact(s) for field location of facilities;
(4) 
The name, address, telephone number, email address and fax number of an emergency contact who shall be available twenty-four (24) hours a day;
(5) 
Proof of insurance and bonding, as otherwise required herein; and
(6) 
A description of the nature of the services provided and the state certificates, if any, authorizing such services.
(Ordinance 352, sec. 4, adopted 9/11/06)
It shall be unlawful for any person to cause or permit the construction or installation of facilities within public rights-of-way within the city, except as provided by this article and any other ordinance of the city applicable thereto.
(Ordinance 352, sec. 5, adopted 9/11/06)
All excavations and other construction in the public rights-of-way shall be performed in accordance with all applicable state, federal, and city regulations.
(Ordinance 352, sec. 6, adopted 9/11/06)
All construction within public rights-of-way shall be undertaken so as to minimize interference with the use of public and private property and in accordance with any lawful direction given by the city under the police and regulatory powers of the city.
(Ordinance 352, sec. 7, adopted 9/11/06)
(a) 
Except as provided by section 15-38 and section 15-41, it shall be unlawful for any person to cause or permit any work which involves the construction, disturbance, expansion, installation, interference, maintenance, removal or repair of facilities within public rights-of-way without having first applied for and obtained from the city a construction permit therefor.
(1) 
It shall be presumed that any cutting or penetration of a street surface or within five (5) feet of the street surface will involve the disturbance or interference with the public rights-of-way.
(2) 
The city generally does not allow cutting or penetrating of the street surface or excavation within five (5) feet of the street surface. When such action is absolutely required, the permittee shall present the city plans and specifications prepared by a registered professional engineer licensed to practice in the State of Texas that details the method of repair and restoration of the street surface and/or the adjacent five (5) feet to the street surface. No construction shall be initiated until the drawings and plans are approved by the building official.
(b) 
Each construction permit application shall include a written work description, including construction drawings, showing the facilities’ location (or proposed location) and the estimated depth of the facilities (existing and proposed) in the immediate area of the proposed new construction, and the name, address and telephone number of the contractor and subcontractors who will perform the work described. Such drawings shall be reviewed by the city and, if disapproved, returned with comments setting forth the reasons for such disapproval. Approvals shall not be unreasonably withheld or delayed. The city may request a preconstruction meeting with the applicant and its contractor(s) prior to construction.
(c) 
Except as otherwise specifically provided herein, work shall not commence until applicable construction permits have been approved therefor. Review and approval by the city of construction permits as provided herein shall not constitute any representation or warranty regarding the sufficiency of design or construction of such facilities. All such work shall be in conformance with the approved construction permit. A copy of the construction permit, approved construction plans, and traffic control plans shall be maintained at the construction site and made available for inspection by the building official at all times when construction or installation work is occurring. All work performed in the public rights-of-way shall be done in a good, professional, workmanlike, timely, expeditious manner. The user is ultimately responsible for the workmanship of and damages by its employees, contractors, or subcontractors.
(d) 
Work for which a permit is required may be performed at any time; provided however, any such permitted work performed within five hundred (500) feet of any residential structure may only be performed between the hours of 7:00 a.m. and 6:00 p.m. Any permitted work performed outside of the above working hours must be approved in advance by the building official.
(e) 
Provided further, all such construction and/or installation work shall be completed in the time specified in the construction permit. If the work cannot be completed within the specified time period, the user may request an extension from the building official, which extension shall not be unreasonably withheld.
(f) 
For any project permitted for more than five (5) working days, the permittee shall place at least two (2) information signs at least three (3) feet by three (3) feet at the location where construction is to occur prior to the beginning of work in the right-of-way. The information sign shall state the identity and telephone number of the person doing the work, and the permittee’s identity and telephone number. Such signs shall continue to be posted at the location during the entire time work is occurring. The signs shall be posted on a public right(s)-of-way about one hundred (100) feet before and after such construction, unless otherwise approved or required by the building official in writing.
(Ordinance 352, sec. 8, adopted 9/11/06)
Notwithstanding the foregoing section 15-37, during an emergency where, in the good faith judgment of the user, failure to act immediately could jeopardize public health, safety, or general welfare, or in situations where a repair is necessary to restore service to a customer, such user may perform repairs to facilities within public rights-of-way, which involve the alteration or disturbance of the surface of such public rights-of-way, without prior notification to, or acquisition of, a construction permit from, the city. In such cases, the user shall notify the building official as promptly as possible after beginning the work, but in no event later than the close of business on the next business day, stating the nature of such repairs and, if not completed, the length of time estimated to complete same. The user shall apply for the required approvals as soon as reasonably practicable, and any work performed that is not consistent with then applicable city standards shall be corrected upon notice thereof from the city.
(Ordinance 352, sec. 9, adopted 9/11/06)
Users may excavate public rights-of-way only for the purpose of, and to the extent reasonably required for, the construction, installation, expansion, repair, removal, or maintenance of its facilities.
Upon completion of work, the user shall promptly restore the surface of the affected public rights-of-way to a condition that equals or exceeds its condition prior to such construction. To such end, the restoration shall comply with the following requirements:
(1) 
Replacing all ground cover equal to or better than the type of ground cover damaged during work, either by sodding or seeding;
(2) 
Installation of all manholes, hand-holes, vaults, access covers and appurtenances shall, to the extent reasonably practicable, be level with the surrounding terrain so as to not protrude above the surface;
(3) 
All bore pits, potholes, trenches or any other holes shall be filled in or covered daily, or properly barricaded, unless other safety requirements are approved by the building official;
(4) 
Leveling of all trenches and backhoe lines;
(5) 
Restoration of all landscaping and other affected structures such as sprinkler systems and mailboxes; and
(6) 
Ongoing maintenance of stormwater quality management plan as required by the Texas Commission on Environmental Quality.
(Ordinance 352, sec. 10, adopted 9/11/06)
All restoration work shall be maintained by the user to the satisfaction of city for a period of one hundred eighty (180) days from the date of completion of such restoration work. No public rights-of-way shall be encumbered by construction, maintenance, removal, restoration, or repair work for a longer period than shall be necessary to execute such work. If there is an unreasonable delay by the user in restoring and maintaining the public rights-of-way or restoring such public rights-of-way after such excavations, construction, installation or repairs have been made, the city shall notify the user in writing that if such restoration or maintenance is not performed within five (5) days of receipt of such notice, the city shall have the right to restore or repair the same and to require the user to pay the reasonable cost of such restoration or repair. Furthermore, if restoration is not satisfactory and performed in a timely manner, all work in progress, except that related to the problem, including all work previously permitted but not complete, may be halted and a hold may be placed on any permits not approved until all restoration is complete.
(Ordinance 352, sec. 11, adopted 9/11/06)
Routine maintenance on facilities approved for installation within the public rights-of-way, and that does not require the disturbance of the road surface or the public rights-of-way within five (5) feet of the nearest road surface shall not require a construction permit, but shall be conducted in a manner that is consistent with applicable city regulations governing such work, if any.
(Ordinance 352, sec. 12, adopted 9/11/06)
(a) 
Any road closure resulting from construction or repair activities to facilities, other than for emergency repairs, shall require prior notification to the building official and mayor of the city.
(b) 
Any work involving the obstruction of vehicular or pedestrian traffic shall be performed in a manner calculated to cause the least inconvenience to the city and the public as is reasonably possible under the circumstances. When a user performs or causes to be performed any work over or across a public street or sidewalk, or so closely adjacent thereto as to create hazards for the public or itself, the user shall provide construction and maintenance signs and sufficient barricades and flagmen at such sites as are reasonably necessary to protect the public and the user’s equipment and workers. The application of such traffic control devices shall be consistent with the standards and provisions of the latest edition of the Texas Manual on Uniform Traffic Control Devices. Appropriate warning lights shall be used at all construction and maintenance zones where one (1) or more traffic lanes are being obstructed during nighttime conditions. Where work is proposed on a designed thoroughfare, the user shall submit a written traffic control plan seven (7) days in advance of the proposed obstruction.
(c) 
The mayor may authorize the temporary closing of a public street or sidewalk to allow the user to complete such emergency repairs if, in the opinion of the mayor, such closing is necessary to protect the safety of the general public.
(Ordinance 352, sec. 13, adopted 9/11/06)
Within one hundred twenty (120) days following completion of construction, or within one hundred twenty (120) days following any material alteration or modification thereto, the user shall supply the city with a complete set of construction drawings for the work, or for the material alteration or modification thereof, unless the user certifies to the city, in writing, that such construction was completed in accordance with the construction plans filed pursuant to section 15-37 above, in which case, such construction plans shall be marked accordingly by the city and filed as the “permanent construction drawings.” For the purposes hereof, a material alteration or modification of a facility shall be deemed to have occurred if such alteration or modification would render the existing construction drawings inaccurate and/or misleading regarding the location of a structural component thereof. Such drawings shall be of sufficient detail to allow the city to determine the location of the facilities with reasonable accuracy. In lieu of print documents, a user may, upon advance reasonable request, provide such drawings and maps by other mediums, including electronic mediums, provided the city has the capability to access such information.
(Ordinance 352, sec. 15, adopted 9/11/06)
(a) 
To the extent the city may be authorized by state or federal law to do so, and to the extent reasonable under the circumstances then existing, the city may require a user to attach portions of its facilities to other facilities within the public rights-of-way owned and maintained by other persons. A user shall not be required to attach its facilities to the facilities of such other persons if it is shown that such user would be subjected thereby to increased risks of interruption to its service, to increased liability for accidents, or to unreasonable delays in construction or availability of service, or if the facilities of such other person are not of the character, design, or construction required by, or are not being maintained in accordance with, current practice, or are not available to the user on reasonable terms, including, without limitation, reasonable fees.
(b) 
Insofar as is practical to do so, users shall use existing facilities in the provision of their services; provided, however, nothing contained herein shall be construed as limiting a user from expanding its facilities to accommodate future growth and development. Users shall provide information to the city relating to the location and/or operation of their facilities or services as may be reasonably necessary for municipal planning purposes.
(Ordinance 352, sec. 16, adopted 9/11/06)
(a) 
To the extent the city may be authorized by law to do so, a user may be required to lower, place underground, relocate, or remove any facility within any public rights-of-way, without cost to the city, if reasonably necessary, as determined by the city council, to abate a condition actually or potentially dangerous to public health or safety, or as may be reasonably necessary to accommodate the construction, repair, maintenance, removal, or installation of any publicly funded city project within the city in, upon, or under public rights-of-way, including, without limitation, street construction and widening, water, sanitary sewer, storm drains, street lights, and traffic signal conduits, or any other public facilities in, upon, or under the public rights-of-way. In the alternative, where the city council determines it to be feasible, a user may be allowed to pay the additional costs incurred for the design and/or construction of any such publicly funded city project in a manner that would avoid the necessity of relocation or removal of the facilities. A user shall be provided the opportunity to collaborate in advance with the city and/or propose alternatives in order to minimize cost, better schedule the work, and accommodate suitable refinements and/or joint work with others.
(b) 
In the event of any such requirement for lowering, placing underground, relocating, or removing facilities as herein provided, the user shall complete same as soon as is reasonably practicable following written notice thereof by the city, but no longer than one hundred eighty (180) days after such written notice.
(Ordinance 352, sec. 17, adopted 9/11/06)
Users shall remove facilities from the public rights-of-way when such facilities are obsolete, are no longer in service, and create either visual blight or a nuisance to the public; provided however, a user shall not be required to remove any facility for which renovation or restoration is planned by the user, and which renovation or restoration is completed within a reasonable period of time. When permanent structures in public rights-of-way are removed, the city shall be notified in writing of such removal within one hundred eighty (180) days of said removal.
(Ordinance 352, sec. 18, adopted 9/11/06)
All users other than governmental units shall comply with all applicable regulations of the city relating to the provision of bonds or other security which may be required in connection with work in public rights-of-way.
(Ordinance 352, sec. 19, adopted 9/11/06)
Upon request, a user shall remove or raise or lower its aerial facilities temporarily to permit the moving of houses or other bulky structures. The expense of such temporary rearrangements shall be paid by the party or parties requesting same, excluding requests by the city. The user may require payment in advance. The user shall be given a reasonable amount of advance notice to provide for such rearrangement.
(Ordinance 352, sec. 20, adopted 9/11/06)
Users shall comply with all applicable rules and regulations of the city governing the trimming, grooming, or removal of trees or other similar vegetative matter.
(Ordinance 352, sec. 21, adopted 9/11/06)
The user shall comply with stormwater management erosion controls that comply with city, state and federal laws, regulations, and guidelines. Requirements may include, but shall not be limited to, silt fencing around any excavation that will be left overnight, silt fencing in erosion areas until reasonable vegetation is established and barricade fencing around open holes. High erosion areas shall require wire-backed silt fencing.
(Ordinance 352, sec. 22, adopted 9/11/06)
All facilities constructed or installed on or after the effective date hereof shall be buried underground where possible. Except as otherwise provided hereinafter, all facilities constructed or installed above ground shall be approved by the city. Pedestals, junction boxes, metering facilities and similar appurtenances may be placed above ground. Users shall not place facilities within public rights-of-way in such a manner as to unreasonably interfere with existing electrical, cable, or telecommunications fixtures, water hydrants or mains, or drainage or sanitary sewer facilities, and all such facilities shall be placed in such manner as not to interfere with usual travel or public and/or municipal use of the public rights-of-way. The city shall have the right to direct the location of facilities in the public rights-of-way. The installation, repair, construction, maintenance, and replacement of facilities in the rights-of-way shall be subject to inspection and approval by the city. Users shall cooperate fully with the city in conducting inspections. Users shall promptly perform remedial action required by the city pursuant to such inspection.
(Ordinance 352, sec. 23, adopted 9/11/06)
Users shall be responsible for obtaining line locations from the Texas One-Call System, the city, and all affected utilities and others with facilities in public rights-of-way, prior to any excavation. When required by the building official, a user shall verify locations of potential conflicts with existing facilities by pot holding, hand digging, or other similar method, prior to any excavation or boring. Location flags shall not be removed while facilities are being constructed. All location flags shall be removed during the cleanup process by the user at completion of the work. The user, or his agent, contractor, or subcontractor, shall notify the building official immediately of any damage to other utilities.
(Ordinance 352, sec. 24, adopted 9/11/06)
(a) 
Users shall apprise the city of existing and planned construction, maintenance, and other activities of the user within public rights-of-way. Except for emergencies, users shall coordinate all installations and construction within the public rights-of-way with the city’s capital improvement programs.
(b) 
Within sixty (60) days following receipt of the city’s list of improvement projects each user shall provide a written report to the city identifying and describing generally the existing facilities that are within or cross through the boundaries of each project identified by the city.
(c) 
The city and the user shall provide to each other the names of their respective designated officials who will serve as representatives for coordination of the exchange of information and planning on any such project.
(Ordinance 352, sec. 25, adopted 9/11/06)
Except as provided in section 15-38 hereof, each user, at the time of submission of its initial and each renewal registration application, shall file with the city a guarantee of performance of the user’s obligations hereunder, whether to be performed by the user or any other person on behalf of the user, to complete the installation of its facilities within the public rights-of-way, in accordance with the permits and approved plans and specifications therefor. Such guarantee shall be payable to the city, in the amount of fifty thousand dollars ($50,000.00); provided, however, in the event a user applies for a permit for work in which the estimated cost of restoration will exceed fifty thousand dollars ($50,000.00), such user shall file a supplemental guarantee for such additional reconstruction costs. Such guarantee may take the form of a bond, an irrevocable letter of credit, or a statement of fiscal responsibility, as set forth below:
(1) 
A corporate surety bond issued by a corporate surety authorized to do business in the State of Texas. The bond shall contain the following endorsement: “It is hereby understood and agreed that this bond may not be canceled by the surety, nor may any intention not to renew be exercised by the surety until sixty (60) days after receipt by the City, by registered or certified mail or written notice, of such intent to cancel or to not renew.” The rights reserved to the city with respect to the bond are in addition to all other rights of the city and no action, proceeding, or exercise of a right with respect to such bond shall affect any other rights of the city; or
(2) 
An irrevocable letter of credit, in a form satisfactory to the mayor and the city attorney. The letter of credit shall be issued by a federally insured commercial lending institution with a credit rating of BAA or BBB+ or higher. The federally insured commercial institution on which the irrevocable letter of credit is to be drawn shall be acceptable to the city. The irrevocable letter of credit shall contain the following endorsement: “At least sixty (60) days’ prior written notice shall be given to the Mayor by the financial institution of any intention to cancel, replace, fail to renew, or materially alter this irrevocable letter of credit. Such notice shall be given by certified mail to the Mayor and city attorney. The City of El Lago, Texas, may draw upon this irrevocable letter of credit by presentation of a draft at sight, accompanied by a written certificate signed by the Mayor of the city, certifying that (user) has failed to comply with provisions of ordinances applicable to (user’s) use of public rights-of-way within the City of El Lago, Texas.”
After providing a user with thirty (30) days’ advanced written notice of any amount due and owing, and the user’s failure to pay such amounts, the city may draw upon the irrevocable letter of credit by presentation of a draft at sight, on the lending institution, accompanied by a written certificate signed by the mayor certifying that the user has failed to comply with the provisions of this article.
The user shall structure the irrevocable letter of credit in such a manner that if the city draws upon the irrevocable letter of credit and reduces the amount of available credit to an amount below fifty thousand dollars ($50,000.00), the user shall replenish the irrevocable letter of credit to a minimum of fifty thousand dollars ($50,000.00) within five (5) calendar days after the available credit is reduced to an amount below fifty thousand dollars ($50,000.00). The intent of this section is to ensure that the credit available to the city shall at no time fall below fifty thousand dollars ($50,000.00); or
(3) 
Statement of fiscal responsibility.
Written evidence, if a publicly traded company, in the form of its most recent audited financial statement showing assets or reserves sufficient to cover the amount of the guarantee required by this section, if the user’s assets or reserves are no longer adequate to comply with the amounts required by this section, the user shall immediately notify the city and shall obtain a bond or letter of credit as set forth above. The rights reserved to the city with respect to the financial guarantees provided for in this section are in addition to all other rights of the city, whether reserved by this article or otherwise authorized by law, and no action, proceeding, or right with respect to the guarantee shall affect any other right the city has or may have.
(Ordinance 352, sec. 26, adopted 9/11/06)
(a) 
Insurance.
A user shall procure and maintain insurance in full force and effect at all times while its facilities are located in the public rights-of-way. The insurance shall cover all risks associated with the use and occupancy of such rights-of-way. Coverages shall be on an “occurrence basis”. The insurance requirements applicable to a user under this section shall be applicable to all persons performing work within public rights-of-way on behalf of such user unless such person is covered, or named as an additional insured, under the policies of insurance supplied by the user pursuant hereto. If any person other than a user is required to provide such insurance, the provisions referring to a user herein below shall be construed to mean such person.
(1) 
Risks and limits of/liability.
The insurance, at a minimum, must include the following coverages and limits of liability:
Coverage
Limit of Liability
Workers’ Compensation and Employer’s Liability
Statutory
Employer’s Liability
Bodily Injury $1,000,000 (each occurrence)
Commercial General Liability:
Combined single limit for bodily injury and property damage of $1,000,000 per occurrence and $1,000,000 aggregate
(a) All premises/operations
 
(b) Independent contractors
 
(c) Products/completed operations
 
(d) Personal and advertising injury
 
(e) Contractual liability
 
(f) Explosion, collapse and underground hazards
 
Comprehensive Automobile Liability, including coverage for loading and unloading hazards for:
Combined single limit for bodily injury and property damage of $1,000,000 per occurrence
(a) Owned/leased vehicles
 
(b) Nonowned vehicles
 
(c) Hired automobiles
 
Excess Coverage
$5,000,000 per occurrence/combined aggregate in excess of limits specified for Employer’s Liability, Commercial General Liability, and Automobile Liability
Note: Aggregate limits are for a twelve-month policy period, unless otherwise indicated
(2) 
Form of policies.
The insurance may be in one (1) or more policies of insurance, the form of which must be approved by the Texas Insurance Commission.
(3) 
Issuers of policies.
The issuer of any policy shall be authorized to transact insurance business in the State of Texas.
(4) 
Insured parties.
Each policy shall name the user and the city (and the officers, agents and employees of the city) as insured parties.
(5) 
Deductibles.
The user shall assume and bear any claims or losses to the extent of any deductible amounts and waives any claims it may ever have for the deductible amounts against the city, its officers, agents or employees.
(6) 
Cancellation.
Each policy shall expressly state that it may not be canceled or nonrenewed unless thirty (30) days’ advanced notice of cancellation or nonrenewal is given in writing to the city.
(7) 
Subrogation.
Each policy shall contain an endorsement to the effect that the issuer waives any claim or right in the nature of subrogation to recover against the city, its officers, agents or employees.
(8) 
Liability for premium.
If any of the policies referred to above do not have a flat premium rate, and such premium has not been paid in full, such policy shall have a rider or other appropriate certificate or waiver sufficient to establish that the issuer is entitled to look only to the user for any further premium payment and has no right to recover any premiums from the city.
(9) 
“Other insurance” clause.
The insurance policy(ies) shall provide that the “other insurance” clause does not apply to the city where the city is shown on the policy as an additional insured.
(10) 
Delivery of policies.
The originals of all policies referred to above, or copies thereof certified by the agent or attorney-in-fact issuing them, together with written proof that the premiums have been paid, shall be deposited by the user with the city secretary prior to commencement of any work. Failure on the part of the user to furnish a new policy or certified copy thereof before the expiration date of any such policy, or failure to obtain a new policy before the date fixed for the cancellation of an existing policy, so that the insurance referred to shall be continuously in effect, shall constitute a violation hereunder.
(11) 
Liability of user.
The city’s approval, disapproval, or failure to act regarding any insurance supplied by a user shall not relieve such person from full responsibility or liability for damages and accidents arising out of use or occupancy of public rights-of-way. Neither bankruptcy, insolvency nor denial of liability by the insurance company shall exonerate the user from liability.
(12) 
Self-insurance.
A user may elect to self-insure to provide the insurance coverage required hereunder, subject to the restrictions set forth in this subsection, provided the user submits to the city copies of its certificates of self-insurance from the Texas Department of Insurance, and its most recent audited financial statements showing self-insurance reserves or other assets sufficient to pay judgments equal to the limits set forth above. A user shall also provide to the city documentation evidencing its process for reviewing and paying claims. The city shall be protected by a user’s self-insurance to the same extent as an additional insured on a policy issued by an insurance company. If a user’s self-insurance program ceases, or a user’s assets or reserves are no longer sufficient to comply with the above coverage requirements, the user shall immediately notify the city of such lapse of coverage, and the user shall obtain commercial insurance, in accordance with the above requirements, within thirty (30) days following such notice.
(b) 
Indemnity.
To the extent permitted by law, each user, and each person performing work within a public right(s)-of-way as a contractor on behalf of a user, shall indemnify and hold the city harmless as set forth below. If any person other than a user is required to provide such indemnity, the provisions referring to a user herein below shall be construed to mean such person.
The user shall promptly defend, indemnify, and hold the city harmless from and against all damages, costs, losses, or expenses (i) for the repair, replacement, or restoration of city’s property, equipment, materials, structures, and facilities which are damaged, destroyed, or found to be defective solely as a result of the user’s acts or omissions; and (ii) 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 user, its agents, officers, employees, and subcontractors, and the city, its 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 officers, agents, and employees of the user, the user’s contractors, and the city’s officers, agents, and employees, and third parties), arising out of, incident to, concerning, or resulting from, the negligent or willful acts or omissions of the user, its officers, agents, employees, and/or subcontractors, in the performance of activities pursuant to this article.
This indemnity provision is intended to include liability arising from the city’s alleged negligence, but only to the extent such liability arises out of a claim or claims that the city was negligent in authorizing the user to use or occupy the public rights-of-way, in regulating the conduct of the user, or in failing to prevent the user from acting in a negligent or wrongful manner.
For purposes of this indemnification provision, acts or omissions of the officer, agents, employees and contractors of the user shall be considered the acts and omissions of the user. The indemnity provision set forth above is solely for the benefit of the city and the user and is not intended to create or grant any rights, contractual or otherwise, to any other person.
(Ordinance 352, sec. 27, adopted 9/11/06)
If any provision of this article is not followed, a permit for the construction of facilities may be revoked. If a person has not followed the terms and conditions of this article with respect to work done pursuant to a prior permit, new permits may be denied or additional terms may be required.
(Ordinance 352, sec. 28, adopted 9/11/06)
Appeals from denials or revocations of permits shall be to the city council. Appeals shall be filed with the city secretary within fifteen (15) days from the date of the denial or revocation. A hearing shall be held within thirty (30) days of the date the appeal is filed with the city secretary.
(Ordinance 352, sec. 29, adopted 9/11/06)
Any notice required to be given to city hereunder shall be given in writing, and may be effected by (i) personal delivery if delivered to the mayor or his designee, (ii) by facsimile or electronic mail, if delivered to the said mayor or his designee and to the city secretary, or (ii) by United States mail, postage prepaid, registered or certified, return receipt requested, addressed to the mayor or his designee and the city secretary. No notice shall be deemed given until actual receipt by city as hereinabove set forth.
(Ordinance 352, sec. 31, adopted 9/11/06)
(a) 
Criminal penalty.
Any person who shall violate any provision of this article shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined in an amount not to exceed two thousand dollars ($2,000.00). Each day of violation shall constitute a separate offense. Prosecution for, and imposition of, criminal penalties under this subsection shall not bar the city from seeking other additional remedies as may be provided in this section, by law, or in equity.
(b) 
Civil penalties.
Civil penalties may be imposed for violation of any provision of this section, as follows:
(1) 
Up to one thousand dollars ($1,000.00) for each violation, and each day of a continuing violation may be considered a new violation; and/or
(2) 
Revocation of any or all permits granted to allow work in public rights-of-way, subject to procedural guidelines provided in this section, any agreement which applies to the person subject to the complaint, and subject to any limitation imposed by federal or state law.
(Ordinance 352, sec. 32, adopted 9/11/06)