This article shall be known, and may be cited, as the right-of-way
management ordinance of the city.
(Ordinance O-15-12-17-6E adopted 12/17/15)
For the purpose of this article, the following definitions shall
apply unless the context clearly indicates or requires a different
meaning. Terms defined herein shall be construed in accordance with
customary usage.
Property owned by the city such as parks in the corporate
limits or extraterritorial district of the city.
A natural person, partnership, cooperative association or
corporation, corporation whether or not organized for profit, and
governmental entity, and specifically includes the contractor and
subcontractor performing work for a public utility.
Grass, trees, shrubs, flowers, vines, and other ground cover.
A public street, highway, alley, and public easement in the
corporate limits of the city.
Any person, not an agent or representative of the city, who
installs, constructs, or maintains facilities in the corporate limits
of the city to provide electric, gas, water, sewer, telecommunication,
or cable television service to members of the public, whether residing
in or out of the corporate limits; provided that it includes any person
who constructs, installs, or maintains facilities in the city for
intrastate or interstate telecommunication services.
Digging, excavating, tunneling, or boring in or under any
public right-of-way, or cutting or breaking the paved surface in any
public right-of-way, in connection with the construction, repair,
or maintenance of utility facilities; provided that work directly
and specifically required for the construction, repair, or maintenance
of overhead and utilities and service line connections to individual
customers is not included in this definition.
(Ordinance O-15-12-17-6E adopted 12/17/15)
The public utility and its contractors and subcontractors are
individually and jointly responsible, both civilly and criminally,
for compliance with this article and with any work permit issued pursuant
to this article.
(Ordinance O-15-12-17-6E adopted 12/17/15)
(a)
A permit issued by the city engineer is required as a condition to
performance of work by a public utility or person in the public right-of-way
or city-owned property, except in the case of emergency work. There
is a fee for a permit in the amount of five hundred dollars ($500.00).
If there are additional direct costs to the city in processing the
applications, the city may recover those costs from the applicant
prior to the issuance of the construction permit. A fee is not required
for city-initiated projects that require utility companies to place,
replace, or alter facilities on, in, under or over the public rights-of-way
and city-owned property.
(b)
Any utility company with a current and unexpired consent, franchise
agreement or other authorization from the city (“grant”)
to use the public rights-of-way that is in effect at the time this
article, rights-of-way management ordinance, is adopted, shall continue
to operate under and comply with that grant (except to the extent
the police power regulations in such grant are inconsistent with this
article, in which event, this article will control) until the grant
expires or until it is terminated by mutual agreement of the city
and the utility company, or is terminated as otherwise provided for
in law.
(c)
A public utility requiring a permit shall file a written, dated application
with the city engineer on a form provided by the city. The application
shall include the following:
(1)
The contractor’s name and contact information;
(2)
The nature and location of the work being proposed;
(3)
The dates and hours the work is proposed to be performed;
(4)
The nature of the surface of the right-of-way;
(5)
An erosion control plan;
(6)
A restoration plan, including designation of the time within which
the applicant plans to complete the restoration in accordance with
the requirements of this chapter;
(7)
Cost estimate;
(8)
Insurance and bonding will be required in accordance with this section;
and
(9)
Such other information as may be required by the city engineer.
(d)
If the work proposed by the applicant entails the traversing of a
paved roadway, boring under the street shall be required rather than
cutting the pavement, provided that the city engineer may authorize
pavement cuts in lieu of boring, upon review and recommendation of
the city inspector, where boring is found not to be feasible.
(e)
The city engineer shall issue the permit if, based upon all information
made available to him, he is satisfied that:
(f)
In the event a public utility does work as an emergency, it shall,
as soon as practicable, notify the city engineer of the work, and
make an application for such work. The emergency work may be performed
subject to issuance of a permit therefor, and must comply with all
provisions of this article.
(g)
A permit granted by the city engineer may vary from the application
and may be modified by the city engineer at any time while the work
is in progress.
(h)
A permit shall be issued for a specified period of time. Work authorized
thereunder may be performed only during such specified period. The
city engineer may, upon application by the public utility or contractor,
grant an extension of the work permit period.
(Ordinance O-15-12-17-6E adopted 12/17/15)
(a)
The following regulations apply to public utilities performing work
in the public right-of-way and city-owned property:
(1)
Not more than one traffic lane of a public right-of-way shall be
closed at any time.
(2)
No public right-of-way shall be completely closed to traffic.
(3)
Work shall not be performed during hours of darkness.
(5)
All unnecessary equipment and debris shall be kept off the public
right-of-way and the work shall be performed so as to facilitate the
normal flow of traffic.
(6)
Excavations and pavement cuts shall be maintained so as to avoid
a hazard to vehicles and pedestrian traffic until permanent repairs
are completed.
(7)
Barricades, signs, lights, warnings, and traffic-control procedures
shall be utilized in accordance with the current requirements of the
Texas Manual on Uniform Traffic-Control Devices, adopted by the state
department of highways and public transportation.
(8)
All applicable state and municipal trench safety standards shall
be met.
(9)
All work in the public right-of-way shall be diligently conducted
and completed as soon as practicable.
(b)
The city engineer may exempt the public utility from any of the above
regulations for good cause, and, where alternate arrangements are
required to protect the public interest, such alternate arrangements
are noted on the face of the permit.
(Ordinance O-15-12-17-6E adopted 12/17/15)
(a)
Upon completion of work, each public utility shall remove all debris and excess spoil, permanently repair any paving in the public right-of-way that has been cut, broken, or damaged, and restore the public right-of-way and any plant material that has been disturbed to the condition existing prior to the work in accordance with the requirements set out in subsection (b), below.
(b)
If grass is used in the restoration, all planting shall be done between
May 1st and September 15th except as specifically authorized in writing.
If planting, is authorized to be done outside the dates specified,
the seed shall be planted with the addition of winter fescue (Kentucky
31) at a rate of 100 lbs/acre. Grass shall be common Bermuda grass,
hulled, minimum 82% pure live seed. All grass seed shall be free from
noxious weed, grade “A” recent crop, cleaned and treated
with appropriate fungicide at time of mixing. Seed shall be furnished
in sealed, standard containers with dealer’s guaranteed analysis.
(c)
Plant material shall be considered to be restored when at least one
and half (1-1/2") inches of growth covers at least 95% of the area
disturbed by the work; provided that no barren areas larger than ten
square feet remain. Trees, sod, shrubs, and larger plants shall be
replaced.
(d)
The city shall, within ten days from receipt of a written request
to inspect from a public utility, perform an inspection. There is
a fee for inspection. The fee is $500.00 or 3% of construction estimate
for work performed in the right-of-way whichever greater. The $500.00
application fee will be applied to the inspection fee. If all the
requirements of this article have been met, the city engineer shall
issue a certificate of completion with the date of approval set forth
thereon. If the city fails to start its inspection within such ten-day
period, any certificate of completion issued shall bear the date of
receipt of the written inspection request.
(e)
Upon completion and city’s certificate of completion for the
improvements, the surety amount will be refunded.
(f)
The public utility shall maintain such repairs and restoration, other
than grass that subsequently dies, in good condition for a period
of two (2) years from the date of the certificate of completion. Nothing
herein is intended to absolve the public utility from responsibility
for the proper installation, repair, and maintenance of any work;
the two-year maintenance period applies only to the repair and restoration.
Contractor will give the city a two-year maintenance bond for the
repair and restoration.
(g)
The city shall notify the public utility in writing if, during the
two-year maintenance period, the repairs or restoration are or become
in need of maintenance, or if the plant material replaced by the public
utility, other than grass, dies. If such maintenance is not performed
within a scheduled time period agreed upon by the public utility and
the city, or if no agreement is reached as to a schedule within 60
days after notice from the city, or if no response is received by
the city within two weeks after such notification, the city may have
such maintenance performed and bill the costs to the public utility
which shall be liable for such costs or process a claim on the contractor’s
maintenance bond.
(Ordinance O-15-12-17-6E adopted 12/17/15)
(a)
Insurance.
(1)
A utility company shall obtain and maintain insurance in the amounts provided in subsection (a)(2) of this section with an insurance company licensed to do business in the state, with an AM Best rating of at least A-. A utility company shall file and maintain proof of insurance with the city engineer at the time of the request for permits and prior to any commencement of work. The city’s current insurance forms and requirements may be obtained from the development services department.
(2)
A utility company shall furnish to the city engineer, at no cost
to the city, a certificate of insurance on forms provided by the city,
showing proof of liability insurance in the total amount of $1,000,000.00.
(3)
The insurance certificate required under subsection (a)(1) of this section shall:
(A)
Include a cancellation provision in which the insurance company is
required to provide the city a 30-day written notice before a cancellation,
nonrenewal, reduction of policy limits, or other material change;
and
(B)
Provide that notice of claims related to public rights-of-way construction
shall be provided to the city engineer by certified mail.
(4)
The coverage must be on an occurrence basis and must include coverage
for personal injury, contractual liability, premises liability, medical
damages, underground, explosion and collapse hazards.
(5)
An insurance certificate obtained in compliance with this section
is subject to city attorney approval. A utility company shall immediately
advise the city of actual or potential litigation that may develop
and may affect an existing carrier’s obligation to defend and
indemnify.
(6)
The policy clause “other insurance” shall not apply to
the city if the city is an insured under the policy.
(7)
A utility company shall pay premiums and assessments for the insurance
required under this article. The insurance shall be primary coverage
for losses covered by the policies. A company that issues an insurance
policy has no recourse against the city for payment of a premium or
assessment. Insurance policies obtained by a utility company 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.
(8)
The city will accept certificates of self-insurance issued by the
state, or letters written by the utility company in those instances
where the state does not issue such certificates, which provide the
same coverage as required herein. The city has the right to require
proof of financial stability prior to accepting the proof of self-insurance,
provided that defense of the city shall be comparable as provided
by an insurance carrier. The defense and claims processing required
of holders of a state-issued certificate of franchising authority
to provide cable or video services shall be in accordance with V.T.C.A.,
Utilities Code ch. 66.
(b)
Bonds.
(1)
Unless otherwise provided for by a utility company’s valid
franchise, the city engineer shall require reasonable bonding requirements
of a utility company, as are required of other entities that place
facilities in the public rights-of-way. Such bonding amounts will
be reasonably determined by the city engineer depending on several
factors as to public safety and risk of harm to persons and property.
Such factors include, but are not limited to:
(2)
The utility company shall file an annual surety bond which will be
valid each year construction will occur through two (2) full years
after the completion of the construction from a surety company authorized
to do business in the state, and must be on forms provided by the
city. Such surety bond will be in the amount of the estimated cost
to restore the public rights-of-way for the work anticipated to be
done in that year and to relocate facilities pursuant to this article.
If the city engineer determines that the annual surety bond on file
is insufficient to restore the public rights-of-way and to relocate
facilities related to a specific project for which a permit application
has been filed, then the city engineer may require the utility company
to file an additional surety bond for such project.
(3)
The city may either waive or reduce the amount of the bond in the event the utility company provides written documentation as to reserves available to compensate the city for damages, and has a two (2) year history of no claims, or damages to city property by the city, or of prompt payment on such claims. Further, notwithstanding subsection (b)(1) of this section, a bond shall not be required of a utility company that can demonstrate a record of at least four (4) years of work in the public rights-of-way in the city and to the extent applicable, in all other municipalities it has performed such work, free of unsatisfied claims. No bonds for aerial construction will be required of holders of a state-issued certificate of franchising authority to provide cable or video services, in accordance with V.T.C.A, Utilities Code ch. 66.
(4)
Alternate compliance methods.
The above requirements
may be met by utilities with a current franchise or license if their
current franchise or license adequately provides for insurance or
bonds or provides an indemnity in favor of the city.
(Ordinance O-15-12-17-6E adopted 12/17/15)
(a)
If repairs to the public right-of-way are deemed necessary by the
city in order to correct a hazardous condition and the need for such
repairs is caused by work (including defective repairs or failure
to repair) by a public utility, the city shall notify the public utility.
If the public utility does not provide an acceptable schedule for
making the repairs within 24 hours after receipt of such notice, the
city may have such repairs done.
(Ordinance O-15-12-17-6E adopted 12/17/15)
(a)
All utility companies who have facilities in the public rights-of-way
existing as of the adoption date of the ordinance from which this
article is derived shall provide a system map of their facilities
to the city in a digital format commercially available, nonproprietary
software no later than one (1) year after the passage of this article,
unless the utility company demonstrates an economic impracticality
to provide such system map in the above format. An updated system
map shall also be provided to the city on an annual basis to include
new facilities.
(b)
Information provided to the city pursuant to this section may be
designated confidential by the providing utility company and will
be kept confidential by the city to the extent allowed by law.
(Ordinance O-15-12-17-6E adopted 12/17/15)
If a utility company violates the terms and conditions contained
herein, a permit may be revoked by the city engineer or designee.
(Ordinance O-15-12-17-6E adopted 12/17/15)
Appeal from revocation or denial of a permit or from the decision
of the city engineer shall be to the city manager. Appeal shall be
filed with the city secretary within 15 days from the date of the
decision being appealed.
(Ordinance O-15-12-17-6E adopted 12/17/15)
(a)
Except as to certificated telecommunications providers, as provided
in V.T.C.A., Local Government Code ch. 283, and holders of a state-issued
certificate of franchising authority to provide cable or video services,
in accordance with V.T.C.A, Utilities Code ch. 66, each utility company
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, claims, demands, suits, causes of action,
judgments or expenses arising out of, incident to, concerning or resulting
from the negligent or willful acts or omissions of the utility company,
its agents, employees, and subcontractors, in the performance of activities
pursuant to or authorized under this article for the repair, replacement
or restoration of the city’s property, equipment, materials,
structures and facilities that are damaged, destroyed or found to
be defective; damage to or loss of the property of any utility company,
including but not limited to the utility company, its agents, officers,
employees and subcontractors, city’s agents, officers and employees,
and third parties; and 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 utility
company, utility company’s subcontractors and city, and third
parties.
(b)
Upon commencement of any suit, proceeding at law or in equity against
the city relating to or covering any matter covered by this indemnity,
for which the utility company is obligated to indemnify and hold the
city harmless, or to pay said final judgment and costs, as the case
may be, the city shall give the utility company reasonable notice
of such suit or proceeding. The utility company shall promptly provide
a defense to any such suit or suits, including any appellate proceedings
brought in connection therewith, and pay any final judgment or judgments
that may be rendered against the city by reason of such damage suit.
Upon failure of the utility company to comply with the provisions
of this article, after reasonable notice to the city, the city shall
have the right to defend the same and in addition to being reimbursed
for any such judgment that may be rendered against the city, together
with all court costs incurred therein, the utility company shall promptly
reimburse the city for attorney’s fees, including those employed
by the city in such case or cases, as well as all expenses incurred
by the city by reason of undertaking the defense of such suit or suits,
whether such suit or suits are successfully defended, settled, compromised,
or fully adjudicated against the city.
(c)
This indemnity provision shall not apply to any liability resulting
from the negligence of the city, its officers, employees, agents,
contractors or subcontractors.
(d)
The provisions of this indemnity are solely for the benefit of the
city and are not intended to create or grant any rights, contractual
or otherwise, to any other person or entity.
(e)
To the fullest extent permitted by law, a utility company shall pay
all expenses incurred by the city in defending itself with regard
to all damages and penalties provided in this article. These expenses
shall include all out-of-pocket expenses such as attorney’s
fees, and shall also include the reasonable value of any services
rendered by any employees of the city. In the event the city is compelled
to undertake the defense of any such suit by reason of a utility company’s
failure to provide a defense as hereinabove provided, the city shall
have full right and authority to make or enter into any settlement
or compromise of such adjudication as the city council shall deem
in the best interest of the city, without the prior approval or consent
of the utility company with respect to the terms of such compromise
or settlement.
(Ordinance O-15-12-17-6E adopted 12/17/15)
This article shall be construed in accordance with the city
code(s) in effect on the date of passage of this article, to the extent
that such code(s) are not in conflict with or in violation of the
constitution and laws of the United States or the state, subject to
the city’s ongoing authority to adopt reasonable police power
based regulations to manage its public rights-of-way, pursuant to
this article or as otherwise provided by law.
(Ordinance O-15-12-17-6E adopted 12/17/15)
