City of Garland, TX USE OF RIGHT-OF-WAY BY PUBLIC UTILITIES

In addition to any other remedies that may be available under the law or this article, any violation or failure to abide by, and comply with, any provision or requirement of this article shall be violation of the City Code, and shall be punished in accordance with section 10.05 of this Code.

Each day upon which there exists a violation of this article, or a failure to abide by, or comply with, any provision or requirement of this article, shall constitute a separate occurrence, and may subject the offender to separate criminal penalties.

Prosecution pursuant to this section is in addition to and does not supplant other remedies.

(Ordinance 5504, sec. 1, adopted 9/19/00)

§ 51.105 Civil penalties.

No person shall commence or continue with the construction, installation, maintenance, or operation of facilities or equipment within any right-of-way in the City except as provided by City Ordinance and the directives of the Director. All construction and maintenance activity within a City right-of-way must be in accordance with this Code, the Design Manual, and state and federal law.

In imposing the penalties and the amount, the City may weigh all applicable factors, such as damages caused by the violation, reasons for the violation, the seriousness of the violation, and all other factors.

Monetary civil penalties may be imposed in the manner prescribed by either local or state law.

In addition, the director may order specific performance of any actions required by this article or required by a franchise, license or permit, including the permit authorizing work to be performed in the right-of-way, or any other agreement or authorization.

(E)

Prior to initiation of enforcement litigation, the user shall be given the opportunity to correct the violation within the timeframe specified by the director.

(Ordinance 5504, sec. 1, adopted 9/19/00; Ordinance 6928, sec. 2, adopted 8/15/17)

§ 51.106 Right-of-way construction.

No person shall commence or continue with the construction, installation, maintenance or operation of facilities within the right-of-way in the City except as provided by the ordinances of the City and the directives of the director. All construction activity in City right-of-way will be in accordance with this article and all state and federal laws.

No person shall attach or continue the attachment of any equipment or facilities to City-owned utility poles, street lights, standards or other structures without entering into a separate pole attachment agreement with the City.

(Ordinance 5504, sec. 1, adopted 9/19/00)

§ 51.107 Registration and construction permits.

Registration.

In order to protect the public health, safety and welfare, all users constructing, installing, maintaining or operating facilities in the right-of-way will register with the director. Registration and permits will be issued in the name of the entity that owns or will own the facilities. Registration must be renewed before January 31 biennially after the effective date of this article. If a registration is not renewed and subject to thirty (30) days’ written notice, the facilities of the user will be deemed to have been abandoned. When any information provided for the registration changes, the user will inform the director in writing no more than thirty (30) days after the date the change is made.

Registration shall include:

(a)

The name of the user of the right-of-way;

(b)

The name, address and telephone number of people who will be contact person(s) for the user;

(c)

The name, address and telephone number of any contractor or subcontractor, if known, who will be working in the right-of-way on behalf of the user;

(d)

The name(s) and telephone number(s) of an emergency contact who shall be available 24 hours a day;

(e)

Proof of insurance and bonds, as follows:

(i)

An applicant must provide proof of liability insurance in the amount of six million dollars ($6,000,000.00); one million dollars ($1,000,000.00) primary plus five million dollars ($5,000,000.00) umbrella or other securities as acceptable to the director.

(ii)

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, and workers compensation insurance in the amounts required by law.

(iii)

Each policy must include a cancellation provision in which the insurance company is required to notify the director in writing not fewer than thirty (30) days before canceling, failing to renew, or reducing policy limits.

(iv)

The applicant shall file, with the director, the required original certificate of insurance showing the City as an additional insured prior to any commencement of work. The certificate shall state the policy number; name of the insurance company; name, address and telephone number of the agent or authorized representative of the insurance company; name, address and telephone number of insured; policy expiration date; and specific coverage amounts.

(v)

Applicant shall file a surety bond, which will be valid prior to the commencement of any construction through two full years after the completion of the construction and satisfactory restoration of the right-of-way, from a surety company authorized to do business in the state (and acceptable to the City) in the amount of the estimated amount of the value of the work to be performed that year, but in no case less than $100,000.00, to guarantee that the restoration of the right-of-way in the event the applicant leaves a job site in the right-of-way unfinished, incomplete or unsafe.

(vi)

Proof of insurance requirements may be met by utilities with a current franchise or license agreement that provides for insurance or bonds in at least the amounts enumerated above.

(vii)

Self-insurance.

With respect to the user’s obligation to comply with the requirements to provide proof of liability insurance coverage, the City may allow the user to self-insure upon annual production of evidence that is satisfactory to the City’s risk manager.

Construction permits.

No person shall perform any construction, maintenance or installation of facilities, whether aboveground or underground, in the right-of-way without first obtaining a construction permit, except as provided herein. The permit will be in the name of the person who owns or will own the facilities to be constructed, maintained, repaired, or upgraded. The permit application must be completed and signed by a representative of the owner of the facilities to be constructed.

(a)

Emergency responses related to existing facilities may be undertaken without first obtaining a permit; however, the director shall be notified in writing, on a form approved by the director, on the next business day of any construction related to an emergency response; including a reasonable detailed description of the work performed in the right-of-way and an updated map of any facilities that were moved or repaired.

(b)

The phrase “construction, maintenance or installation of facilities” does not include the installation of facilities necessary to initiate service from the right-of-way directly adjoining a customer’s property to the customer’s property, or repair or maintenance of existing facilities unless such repair or maintenance requires the breaking or cutting of pavement, the closure of a nonresidential traffic lane, or excavation within the right-of-way or boring.

The permit shall state to whom it is issued, location of work, location of facilities, dates and times work is to take place and any other conditions set out by the director.

The person requesting a permit will provide the director with documentation in the format specified by director, including:

(a)

The proposed, approximate location and route of all facilities to be constructed, installed or maintained and the applicant’s plan for right-of-way construction.

(b)

Unless otherwise approved by the director, five (5) sets of engineering plans signed and sealed by an engineer licensed to practice in the state, at a scale not to exceed one inch (1") equals fifty feet (50'). These plans shall include, but not be limited to:

(i)

Details of the location of all right-of-way and utility easements that applicant plans to use.

(ii)

Details of all existing City and non-City utilities and facilities in relationship to applicant’s proposed route.

(iii)

Details of what applicant proposes to install, such as pipe size, valves, etc.

(iv)

Details of plans to remove and replace asphalt or concrete in streets, driveways, alleys and sidewalks.

(v)

Drawings of any bores, trenches, handholes, manholes, switch gear, transformers, pedestals, etc. including depth.

(vi)

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

(vii)

Complete legend of drawings submitted by applicant. Applicant may submit a standard legend for all permit applications, provided the applicant submits updated or revised versions of the standard details.

(viii)

A traffic-control plan.

(ix)

Compliance with the City’s NPDES stormwater permit requirements and other provisions of the Federal Clean Water Act.

(x)

Any other information as required by the director or his directives.

(c)

The name, address and phone numbers of the contractor and subcontractor who will perform the actual construction, including the name and telephone number of an individual with the contractor who will be available at all times during construction. Such information shall be required prior to the commencement of any work.

(d)

The construction and installation methods and materials to be employed for the protection of existing structures, fixtures, and facilities within or adjacent to the right-of-way, and the dates and times work will occur, all of which (methods, dates, times, etc.) are subject to approval of the director.

(e)

A statement that proof of insurance, bond or other required financial information is current and on file.

(f)

Detailed emergency procedures and a list of “on-call” contacts.

(g)

A statement that all necessary and applicable state and federal permits have been obtained for the project and that the user is in compliance with those permits.

All construction, installation and maintenance in the right-of-way shall be in accordance with the permit for the facilities and the ordinances of the City. The director shall be provided access to the work and to such further information as he may reasonably require to ensure compliance with the permit. The director may order the immediate cessation of work under a permit if he determines that this article or the permit has been or is being violated. This order may be given orally to persons working in the right-of-way pursuant to the permit, who shall cease further work until approved by the director.

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 at all times when construction or installation work is occurring.

All construction, installation and maintenance 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, the right-of-way user may request an extension from the director. Approval of extensions shall be at the discretion of the director. Failure to complete the work within the time specified in the construction permit, or within any applicable period of extension, shall constitute a violation of sections 51.104 and 51.105 of this article and subject the violator to the civil and criminal penalties set forth therein.

(7)

A copy of any permit or approval issued by federal or state authorities for work in federal or state rights-of-way located in the City shall be maintained at the construction site and made available for inspection by the director at all times when construction or installation work is occurring.

(8)

A request for a permit, complete with all information required under this section, must be submitted at least fifteen (15) working days before the proposed commencement of work proposed in the request, unless waived by the director or in an emergency, or as provided in subsection (B)(1)(a) of this section.

(9)

The director may require a preconstruction meeting with the right-of-way user and the user’s construction contractor.

(10)

Requests for permits will be approved or disapproved by the director within a reasonable time after receiving all necessary information.

(11)

Permit applications are required for construction on new, replacement or upgrading of company’s facilities in the right-of-way, whether aerial or underground.

Any person performing work in the City’s rights-of-way shall pay an annual license fee in the amount designated in the Master Fee and Rate Schedule, Article VII, Section 10.85, of Chapter 10. This licensing requirement shall not apply to:

Employees of a certificated telecommunications provider (“CTP”) performing work on behalf of the employing CTP;

Employees of wireless network providers constructing, maintaining, or operating a network node or transport facilities;

Employees of a holder of a state-issued certificate of franchise authority performing work on behalf of the holder;

Employees of a person having a franchise agreement with the City while performing work on behalf of that person;

Persons working in the City’s rights-of-way on behalf of the City; and

Persons performing minor landscaping, maintenance, irrigation, or similar activities as determined by the director.

Application fees.

A wireless network provider desiring to construct, maintain, or operate a network node, pole, or transport facility within a City right-of-way shall pay the amounts designated in the Master Fee and Rate Schedule, Article VII, Section 10.85, of Chapter 10 for each application covering up to five network nodes, for each additional network node per application, and for each application for each pole.

(E)

Annual right-of-way rates for network nodes.

Wireless network providers constructing, maintaining, or operating a network node in a right-of-way within the City shall pay an annual public right-of-way rate the amounts designated in the Master Fee and Rate Schedule, Article VII, Section 10.85, of Chapter 10, or the maximum amount allowed under state law, as amended, including any consumer price index adjustments. The annual public right-of-way fee shall be due no later than January 31st of each year. For new installations, the annual public right-of-way fee shall be pro-rated as of the date of the permit.

(F)

Monthly right-of-way rate for transport facilities.

Wireless network providers constructing, maintaining, or operating transport facilities, as defined by chapter 284 of the Texas Local Government Code, as amended, in a right-of-way within the City shall pay a monthly right-of-way use rate in the amount designated in the Master Fee and Rate Schedule, Article VII, Section 10.85, of Chapter 10, multiplied by the number of the network provider’s network nodes located in the public right-of-way for which the installed transport facilities provide backhaul unless or until the time the network provider’s payment of fees to the City exceed its monthly aggregate per-node compensation to the City, or the maximum amount allowed under state law. The fee will be assessed at the time the electric meter servicing the network node is activated.

(G)

Annual service pole rate.

Wireless network providers desiring to construct, maintain, or operate network nodes on service poles, as defined by chapter 284 of the Texas Local Government code, must enter into a service pole collocation agreement with the City, and pay a service pole rate in the amount designated in the Master Fee and Rate Schedule, Article VII, Section 10.85, of Chapter 10, or the maximum amount allowed under state law. The service pole rate is in addition to any other public right-of-way rate authorized under this chapter or state law.

(H)

Permits are not transferable to another user or another location, unless authorized by state or federal law.

(Ordinance 5504, sec. 1, adopted 9/19/00; Ordinance 6054, sec. 9, adopted 9/19/06; Ordinance 6928, sec. 3, adopted 8/15/17; Ordinance 7363 adopted 9/6/2022)

§ 51.108 Construction standards.

No person shall construct or install, or cause to be constructed or installed, facilities within the right-of-way which constitute a threat or hazard to public safety, either for vehicular or pedestrian traffic.

Unless otherwise specifically allowed in writing by the director, all excavations within the right-of-way shall be filled and compacted within twenty-four (24) hours of completion of work and no excavation shall remain open for longer than 96 hours. Restoration of the area, including streets, alleys, sidewalks, paving and landscaping shall be completely restored within fourteen (14) days of completion of work. In special circumstances, the director may require more prompt restoration to avoid hazards to vehicular or pedestrian traffic.

The director must be notified twenty four (24) hours in advance that construction is ready to proceed by either the right-of-way user or user’s contractor or representative. Notification shall include the reference number assigned to the excavation by the one-call system, and the permit number.

All construction shall be in conformance with the directives of the director, all City codes and applicable local, state and federal laws.

(E)

Three feet by three feet information signs, stating the identity of the person doing the work on the facilities, telephone number and user’s identity and telephone number, shall be placed in the right-of-way at a location clearly visible to the public on each approach to the location where construction is to occur twenty-four (24) hours prior to the beginning of work in the right-of-way and shall continue to be posted at the location during the entire time the work is occurring. Each person working in the right-of-way shall wear an employee identification bearing his name and the name of his employer in a manner which is clearly visible from the front. In addition, all vehicles and construction equipment shall be clearly marked with the user’s name or the name of the contractor.

(F)

Erosion control measures and traffic-control devices must be in place before work begins.

(G)

Proper nighttime traffic-control devices must be restored at the end of each day.

(H)

The right-of-way user shall be responsible for the workmanship and any damages by their contractors and subcontractors. A responsible representative of the user will be available to the director at all times during construction.

(I)

The right-of-way user shall be responsible for stormwater management and erosion control that complies with City, state and federal guidelines.

(J)

User or user’s contractor or subcontractor shall notify the director and the affected utility immediately of any damage to other utilities, whether owned by City or privately owned. Failure to notify shall constitute a violation of the permit and shall subject the violator to the penalties set forth in sections 51.104 and 51.105 of this article.

(K)

User must not interfere with City utilities, in particular gravity dependent facilities.

(L)

When a street, alley or sidewalk cut is required, prior approval must be obtained from the director and all of the director’s requirements shall be followed. Repair of all street, alley and sidewalk removals must be made promptly to avoid safety hazards to vehicle and pedestrian traffic.

(M)

Cutting or excavation of street, alley or sidewalk surfaces that are less than five (5) years old is prohibited, unless approved by director.

(N)

All directional boring shall have locator place bore marks and depths while bore is in progress. Locator shall place mark at each stem with paint dot and depth at least every other stem.

(O)

Except in emergency situations, lane closures in school zones or on streets other than residential streets will be limited to after 8:30 a.m. and before 4:00 p.m. unless prior approval is obtained from the director. Arrow boards will be required on lane closures, with all barricades, advanced warning signs and reflector cones placed according to the specifications contained in chapter 33 of this Code, part 6 of the Texas Manual on Uniform Traffic-Control Devices, or as otherwise required by the director.

(P)

Except in an emergency situation, working hours in the rights-of-way not involving traffic lane closures are 7:00 a.m. to 6:00 p.m., Monday through Friday. Work which must be performed before 7:00 a.m. or after 6:00 p.m. Monday through Friday must be approved by the director in advance. Any work performed outside the above work hours must be approved twenty-four (24) hours in advance by the director. Directional boring is permitted only Monday through Thursday from 7:00 a.m. to 6:00 p.m., and on Friday from 7:00 a.m. to 2:00 p.m., unless approved by the director in advance. No work may be done, except for emergencies, on City holidays.

(Q)

Users are responsible for obtaining line locations from all affected utilities at least forty-eight (48) hours prior to any excavation. Use of a geographic information system or the plans of record does not satisfy this requirement.

(R)

Right-of-way user will be responsible for verifying both the horizontal and vertical location of all affected facilities whether by pot holing or hand digging prior to any excavation or boring with the exception of work involving lane closures, as discussed above.

(S)

Placement of all handholes, manholes or other access facilities must be approved in advance by the director. Handholes or manholes will not be located in sidewalks, unless approved by the director.

(T)

New facilities must be installed to a depth approved by the director.

(U)

Locate flags shall not be removed from a location while facilities are being constructed.

(V)

Holes, pits or other hazards shall be properly barricaded to protect vehicular and pedestrian traffic.

(Ordinance 5504, sec. 1, adopted 9/19/00)

§ 51.109 “Plans of record” plans.

Right-of-way users will provide the director with “plans of record” within thirty (30) days of completion of facilities in the right-of-way. Users with existing facilities in the rights-of-way as of the effective date of this article shall submit within thirty (30) days of the effective date of this article, a plan to provide complete plans of record in not more than three hundred (300) days after the effective date of this article. The plans of record shall be provided to the City in the format specified by the director and contain as much detail and accuracy as required by the director. All the criteria specified for plans submitted for the initial permit may be required for the plans of record. Submittal of plans of record shall be in digital format as well as written. Right-of-way users shall, not later than January 31 of each year, submit updated plans of record which incorporate all changes, additions, abandonments, and relocations of facilities completed in the previous calendar year. The annual update of the plans of record shall be in the format prescribed by the director.

(Ordinance 5504, sec. 1, adopted 9/19/00)

§ 51.110 Conformance with public improvements.

Whenever by reason of reconstruction, widening or straightening of streets, replacement of water or sewer lines, traffic signals, traffic signs and markings or any other public works projects, (e.g. install or improve storm drains, water lines, sewer lines, traffic signals, traffic signs and markings, etc.) it shall be deemed necessary by the director to remove, alter, change, adapt, or conform the underground or overhead facilities of a right-of-way user, such alterations shall be made by the owner of the facilities at the owner’s expense within thirty (30) days from issuance of notice to the user to make the alterations unless a different schedule has been approved by the director. Facilities not moved after thirty (30) days notice or within the approved schedule shall be deemed abandoned

The director may require the removal of facilities which have been abandoned.

(Ordinance 5504, sec. 1, adopted 9/19/00)

§ 51.111 Improperly installed, repaired, or maintained facilities.

Any user of the City right-of-way shall properly install, repair, upgrade and maintain facilities. The director may determine if any facilities are not in compliance with this article and may require the user to bring the facilities into compliance within a specified period of time. The director may require removal of facilities from the right-of-way that have been abandoned or not used for a period of one (1) year or longer.

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

The installation, repair, upgrade or maintenance endangers public health, safety or welfare.

The facilities encroach upon private property or extend outside the right-of-way location.

Unless approved by the director, above ground facilities located within the right-of-way that are less than 1.5 feet from the face of a curb or the edge of street or alley pavement, or within six (6) inches of a sidewalk.

The facilities do not meet the applicable state, federal, or local laws.

The facilities are not capable of being located or maintained using standard practices.

The facilities are placed in an area that interferes with another user’s facilities. Nothing in this section shall diminish the authority of the director to require specific placement of specific lines.

(Ordinance 5504, sec. 1, adopted 9/19/00)

§ 51.112 Type of facilities.

The director may require or approve the location of facilities underground.

When poles are used, the type of poles, location, depth, upgrades, etc. shall be subject to the approval of the director. The director shall consult with and obtain the recommendation of the Managing Director of the Electric Utility of the City, or his designee, prior to making a determination.

The director shall approve the size of facilities to be installed or require user to prove its need to install any particular size of facilities, which are the subject of user’s request for a permit.

(Ordinance 5504, sec. 1, adopted 9/19/00)

§ 51.113 Restoration of property.

Users of the right-of-way shall restore property affected by construction, repair, maintenance, installation, or upgrade of facilities to a condition that is equal to or better than the most recent specification of the City’s public works design guidelines and construction standard. Restoration must be approved by the director.

Restoration must be to the satisfaction of the director and in compliance with the City’s specifications. The restoration shall include, but not be limited to:

Replacing all ground cover equal to the type of ground cover damage during work or better either by sodding or seeding as required by director.

Installation of all manholes and handholes, as required.

Street and sidewalk repair.

Leveling of all trenches and backhoe lines.

Restoration of excavation site to City’s specifications.

Restoration of all landscaping, ground cover, and sprinkler systems.

All locate flags shall be removed during the clean up process by the right-of-way user or right-of-way user’s contractor at the completion of the work.

Restoration activity must be commenced upon completion of construction or within 14 calendar days upon receiving written notification from the City. In the event restoration work does not meet the minimum requirements of this section 51.113 and the applicable provisions of the Wireless Utilities in Public Rights-of-Way Design Manual, or is not performed within a reasonable time as determined by the Director, all work in progress, except that related to the problem, including all work previously permitted but not commenced or completed, may be halted and a hold may be placed on any permits not approved until all restoration activity is complete. In addition, the City shall be entitled to claim against user’s surety bond, if any, to effect the restoration without further notice to user.

(Ordinance 5504, sec. 1, adopted 9/19/00; Ordinance 6928, sec. 4, adopted 8/15/17)

§ 51.114 Revocation or denial of permit/appeal.

If any of the provisions of this article are not followed, a permit may be revoked by the director. If a user has not followed the terms and conditions of this article in work done pursuant to a prior permit, new permits may be denied or additional terms required.