A person who controls, is controlled by, or is under common
control with a provider.
Any entity that has been granted a certificate from the Texas
Public Utility Commission under chapter 54 of the Texas Utility Code
authorizing that entity to provide local exchange telephone service.
The City of Celina, Texas. As used throughout, the term city
also includes the designated agent of the city.
The city manager of the city or the city manager’s
designee.
All ordinances, law, rules, resolutions, and regulations
of the city that are not inconsistent with this division and that
are now in force or may hereafter be passed and adopted.
Any and all of the wires, cables, fibers, duct spaces, manholes,
poles, conduits, underground and overhead passageways and other equipment,
structures, plant and appurtenances and all associated physical equipment
placed in, on or under the public rights-of-way.
A natural person (an individual), corporation, company, association,
partnership, firm, limited liability company, joint venture, joint-stock
company, or association, and other such entity.
The area on, below or above a public roadway, highway, street,
public sidewalk, alley, waterway, or utility easement in which the
municipality has an interest. The term does not include the airwaves
above a public right-of-way with regard to wireless telecommunications.
(Ordinance 2012-03 adopted 1/9/12)
(a)
Any
person seeking to place a facility on, in or over the public rights-of-way,
shall first file an application for a building permit with the city
and shall abide by the terms and provisions of this division pertaining
to use of the public rights-of-way.
(b)
Any
person, except a certificated telecommunications provider, prior to
placing, reconstructing or altering facilities in, on or over the
public rights-of-way, must obtain separate municipal authorization
from the city.
(c)
Any
person with a current unexpired consent, franchise, agreement or other
authorization from the city (“grant”) to use the public
rights-of-way that is in effect at the same time this division takes
effect shall continue to operate under and comply with that grant
until the grant expires or until it is terminated by mutual agreement
of the city and the person, or terminated as otherwise provided by
law.
(Ordinance 2012-03 adopted 1/9/12)
(a)
The
city shall designate a person to administer and enforce compliance
with this division.
(b)
A
person shall report information related to the use of the public rights-of-way
that the city’s designee requires in the form and manner reasonably
prescribed by that designee.
(Ordinance 2012-03 adopted 1/9/12)
A person is subject to a reasonable police power regulation
of the city to manage its public rights-of-way in connection with
the construction, expansion, reconstruction, maintenance or repair
of facilities in the public rights-of-way, pursuant to the city’s
rights as a custodian of public property, based upon the city’s
historic right under state and federal laws. Such regulations include,
but are not limited to, the following:
(1)
At
the city’s request, a person shall furnish the city accurate
and complete information relating to the construction, reconstruction,
removal, maintenance operation and repair of facilities performed
by the person in the public right-of-way.
(2)
A
person may be required to place certain facilities within the public
rights-of-way underground according to applicable city requirements
absent a compelling demonstration by the person that, in any specific
instance, this requirement is not reasonable or feasible nor is it
equally applicable to other similar users of the public rights-of-way.
(3)
A
person shall perform operation, excavations and other construction
in the public rights-of-way in accordance with all applicable city
requirements, including the obligation to use trenchless technology
whenever commercially economical and practical and consistent with
obligations of other similar users of the public rights-of-way. The
city shall waive the requirement of trenchless technology if it determines
that the field conditions warrant the waiver, based upon information
provided to the city by the person. All excavations and other construction
in the public rights-of-way shall be conducted so as to minimize interference
with the use of public and private property. A person shall follow
all reasonable construction directions given by the city in order
to minimize any such interference.
(4)
A person must obtain a permit, as reasonably required by applicable city codes, prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the person’s facilities. Once a permit is issued, the person shall give to the city a minimum of forty-eight (48) hours notice (which could be at the time of issuance of the permit) prior to undertaking any of the above listed activities on its network in, on or under the public rights-of-way. The failure of the person to request and obtain a permit from the city prior to performing any of the above listed activities in, on or over any public rights-of-way, except in an emergency as provided for in subsection (10) below, will subject the person to a stop-work order from the city and enforcement action pursuant to this code. If the person failed to act upon any permit within 90 calendar days of issuance, the permit shall become invalid, and the person will be required to obtain another permit.
(5)
When
a person completes construction, expansion, reconstruction, removal,
excavation or other work, the person shall promptly restore the rights-of-way
in accordance with the applicable city requirements. A person shall
replace and properly relay and repair the surface, base, irrigation
system and landscape treatment of any public rights-of-way that may
be excavated or damaged by reason of the excavation, construction,
maintenance or repair of the person’s facilities within thirty
(30) calendar days after completion of the work in accordance with
the existing standards of the city in effect at the time of the work.
(6)
Upon
failure of a person to perform any such repair or replacement work,
and five (5) days after written notice has been given by the city
to the person, the city may repair such portion of the public rights-of-way
as may have been disturbed by the person, its contractors or agents.
Upon receipt of an invoice from the city, the person shall reimburse
the city for the costs so incurred within thirty (30) calendar days
from the date of the city invoice.
(7)
Should
the city reasonably determine, within two (2) years from the date
of the completion of the repair work, that the surface, base, irrigation
system or landscape treatment requires additional restoration work
to meet existing standards of the city, a person shall perform such
additional restoration work to the satisfaction of the city, subject
to all city remedies as provided herein.
(8)
Notwithstanding
the foregoing, if the city determines that the failure of a person
to properly repair or restore the public rights-of-ways constitutes
a safety hazard to the public, the city may undertake emergency repairs
and restoration efforts. A person shall promptly reimburse the city
for all costs incurred by the city within thirty (30) calendar days
from the date of the city invoice.
(9)
A
person shall furnish the city with construction plans and maps showing
the location and proposed routing of new construction or reconstruction
at least fifteen (15) days before beginning construction or reconstruction
that involves an alteration to the surface or subsurface of the public
rights-of-way. A person may not begin construction until the location
of new facilities and proposed routing of the new construction or
reconstruction and all required plans and drawings have been approved
in writing by the city, which approval will not be unreasonably withheld,
taking due consideration of the surrounding area and alternative locations
for the facilities and routing.
(10)
If the city’s designee declares an emergency with regard to
the health and safety of the citizens and requests by written notice
the removal or abatement of facilities, a person shall remove or abate
the facilities by the deadline provided in the city designee’s
request. The person and the city shall cooperate to the extent possible
to assure continuity of service. If the person, after notice, fails
or refuses to act, the city may remove or abate the facility, at the
sole cost and expense of the person, without paying compensation to
the person and without the city incurring liability for damages.
(11)
Except in the case of customer service interruptions and imminent
harm to property or person (“emergency conditions”), a
person may not excavate the pavement of a street or public right-of-way
without first complying with city requirements. The city’s designee
shall be notified immediately regarding work performed under such
emergency conditions, and the person shall comply with the requirements
of city standards for the restoration of the public rights-of-way.
(12)
Within sixty (60) days of completion of each new permitted section
of a person’s facilities, the person shall supply the city with
a complete set of “as-built” drawings for the segment
in a format used in the ordinary course of the person’s business
and as reasonably prescribed by the city, and as allowed by law.
(13)
The city may require reasonable bonding requirements of a person,
as are required of other entities that place facilities in the public
rights-of-way.
(Ordinance 2012-03 adopted 1/9/12)
(a)
In
the exercise of governmental functions, the city has first priority
over all other uses in the public rights-of-way. The city reserves
the right to lay sewer, gas, water, and other pipe lines or cables
and conduits, and to do underground and overhead work, and attachments,
restructuring or changes in aerial facilities in, across, along, over
or under a public street, alley or public right-of-way occupied by
a person, and to change the curb, sidewalks or the grade of streets.
(b)
The
city shall assign the location in or over the public rights-of-way
among competing users of the public rights-of-way with due consideration
to the public health and safety considerations of each user type,
and to the extent the city can demonstrate that there is limited space
available for additional users, may limit new users, as allowed under
state or federal law.
(c)
If
the city authorized abutting landowners to occupy space under the
surface of any public street, alley, or public rights-of-way, the
grant to an abutting landowner shall be subject to the rights of the
previously authorized user of the public rights-of-way that contains
a portion of a person’s facilities, the city shall close or
abandon such public right-of-way subject to the rights of the person.
(d)
(1)
If the city gives written notice, a person shall, at its own expense,
temporarily or permanently, remove, relocate, change or alter the
position of the person’s facilities that are in the public rights-of-way
within 120 days except in circumstances that require additional time
as reasonably determined by the city based upon information provided
by the person. For projects expected to take longer than 120 days
to remove, change or relocate, the city will confer with the person
before determining the alterations to be required and the timing thereof.
The city shall give notice whenever the city has determined that removal,
relocation, change or alteration is reasonably necessary for the construction,
operation, repair, maintenance or installation of a city or other
governmental public improvement in the public rights-of-way. This
section shall not be construed to prevent a person’s recovery
of the cost of relocation or removal from private third parties who
initiate the request for relocation or removal, nor shall it be required
if improvements are solely for beautification purposes without prior
joint deliberation and agreement with person.
(2)
If the person fails to relocate facilities in the time allowed by
the city in this section, the person may be subject to liability to
the city for such delay and as set forth in this code, now or hereafter
enacted.
(3)
Notwithstanding anything in this subsection, the city’s designee
and a person may agree in writing to different time frames than those
provided above if circumstances reasonably warrant such a change.
(e)
During
the term of its municipal consent, a person may trim trees in or over
the public rights-of-way for the safe and reliable operation, use
and maintenance of its facilities. All tree trimming shall be performed
in accordance with standards promulgated by the city. Should the person,
its contractor or agent, fail to remove such trimmings within twenty-four
(24) hours, the city may remove the trimmings or have them removed,
and upon receipt of a bill from the city, the person shall promptly
reimburse the city for all costs incurred within thirty (30) working
days.
(f)
A
person shall temporarily remove raise or lower its aerial facilities
to permit the moving of houses or other bulky structures if the city
gives written notice of no less than 48 hours. The expense of these
temporary rearrangements shall be paid by the party or parties requesting
and benefiting from the temporary rearrangements. Person may require
prepayment or prior posting of a bond from that party requesting temporary
move.
(Ordinance 2012-03 adopted 1/9/12)
(a)
A
person shall obtain and maintain insurance in the amounts reasonably
prescribed by the city with an insurance company licensed to do business
in the state acceptable to the city throughout the term of a municipal
consent conveyed under this division. A person shall furnish the city
with proof of insurance at the time of the request for building permits.
The city reserves the right to review the insurance requirements and
to reasonably adjust insurance coverage and limits when the city’s
designee determines that changes in statutory law, court decisions,
or the claims history of the industry or the person require adjustments
of the coverage. For purposes of this, the city will accept certificates
of self-insurance issued by the state or letters written by the person
in those instances where the state does not issue such letters, which
provide the same coverage as required herein. However, for the city
to accept such letters the person must demonstrate by written information
that it has adequate financial resources to be a self-insured entity
as reasonably determined by the city, based on financial information
requested by and furnished to the city. The person shall be subject
to the city’s insurance requirements as set forth in this code,
now or hereafter enacted.
(b)
A
person shall furnish, at no cost to the city, copies of the certificates
of insurance evidencing the coverage required by this section to the
city. The city may request the deletion, revision or modification
of particular policy terms, conditions, limitations or exclusions,
unless the policy provisions are established by a law or regulation
binding the city, the person, or the underwriter. If the city requests
a deletion, revision or modification, a person shall exercise reasonable
efforts to pay for and to accomplish the change.
(c)
An
insurance certificate shall contain the following required provisions:
(1)
Name the city and its officers, employees, board members and elected
representatives as additional insured’s for all applicable coverage;
(2)
Provide for 30 days notice to the city for cancellation, nonrenewal,
or material change; and
(3)
Provide that notice of claims shall be provided to the city by certified
mail.
(d)
A
person shall file and maintain proof of insurance with the city. An
insurance certificate obtained in compliance with this section is
subject to city approval. The city may require the certificate to
be changed to reflect changing liability limits. A person shall immediately
advise the city attorney of actual or potential litigation that may
develop which may affect an existing carrier’s obligation to
defend and indemnify.
(e)
An
insurer has no right of recovery against the city. The required insurance
policies shall protect the person and the city. The insurance shall
be primary coverage for losses covered by the policy.
(f)
The
policy clause “other insurance” shall not apply to the
city if the city is an insured under the policy.
(g)
The
person shall pay premiums and assessments. A company which issues
an insurance policy has no recourse against the city for payment of
a premium or assessment. Insurance policies obtained by a person must
provide that the issuing company waives all right of recovery by way
of subrogation against the city in connection with damage covered
by the policy.
(Ordinance 2012-03 adopted 1/9/12)
(a)
Except
as to certified telecommunications utilities, each person placing
facilities in the public rights-of-way shall agree to promptly defend,
indemnify and hold the city harmless from and against all damages,
costs, losses, or expenses (1) for the repair, replacement, or restoration
of city’s property, equipment, materials, structures and facilities
which are damaged, destroyed or found to be defective as a result
of the person’s acts or omissions; (2) from and against any
and all claims, demands, suits, causes of action, and judgments for
(A) damage to [or] loss of the property of any person (including,
but not limited to the person, its agents, officers, employees and
subcontractors, city’s agents, officers and employees, and third
parties); and/or (B) death, bodily injury, illness, disease, loss
of services, or loss of income or wages to any person (including,
but not limited to the agents, officers and employees of the person,
person’s subcontractors and city and third parties), arising
out of, incident to, concerning or resulting from the negligent or
willful act or omissions of the persons, its agents, employees, and/or
subcontractors, in the performance of activities pursuant to this
division;
(b)
This
indemnity provision shall not apply to any liability resulting from
the negligence of the city, its officers, employees, agents, contractors,
or subcontractor;
(c)
The
provision of this indemnity is solely for the benefit of the city
and is not intended to grant any rights, contractual or otherwise,
to any other person or entity; and
(d)
Certified
telecommunication utilities shall be governed by the indemnity provision
contained in section 283.057 of the Texas Local Government Code, as
amended.
(Ordinance 2012-03 adopted 1/9/12)
Any person violating or failing to comply with any provision
of this division shall be fined, upon conviction, in an amount not
more than two thousand dollars ($2,000.00), and separate offenses
shall be deemed committed each day during or on which a violation
occurs or continues. The penal provisions imposed under this division
shall not preclude the city from filing suit to enjoin the violation.
The city retains all legal rights and remedies available to it pursuant
to local, state, and federal law.
(Ordinance 2012-03 adopted 1/9/12)
