Whenever used in this division, the following terms shall have the following definitions and meanings, unless the text of the sentence in which they are used clearly indicates [otherwise. Words in the present tense include the] future tense, words in the plural number include the singular number and words in the single number include the plural number. The word “shall” is always mandatory and not merely directory.
Applicant.
The owner of facilities to be constructed in the rights-of-way who makes application for a construction permit hereunder.
Department.
The public works department of the city.
Director.
The city manager, or his/her designee.
Emergency.
A reasonably unforeseen situation presenting an imminent hazard to personal or public health, safety or property, and the work necessary to address a service interruption. Upgrading of facilities, new service installation and neighborhood improvement projects are not emergencies under this division.
Facilities.
Personal property owned by a provider of utility, telecommunications or cable television services, including but not limited to pipe, conduit, ducts, cables, wires, lines, towers, wave guides, optic fiber, microwave, any associated converters and all equipment located in the rights-of-way.
Permittee.
A person to whom a construction permit has been granted hereunder.
Person.
Natural persons (individuals), corporations, companies, associations, partnerships, firms, limited liability companies, joint ventures, joint stock companies or associations, and other such entities, and includes their lessors, trustees and receivers.
Public nuisance.
A condition dangerous to the health, safety or welfare of the general public.
Registered user.
A person who has complied with the registration provisions of this division.
Rights-of-way.
All present and future public streets, avenues, highways, alleys, sidewalks, boulevards, drives, tunnels, easements, bridges, and other such similar passageways, thoroughfares and public ways under the jurisdiction and control of the city.
Use and occupancy.
The acquisition, installation, construction, reconstruction, maintenance or repair of any facilities within the rights-of-way for any purpose whatsoever.
(2003 Code, sec. 3.2001)
(a) 
No person shall use or occupy the rights-of-way within the city for the purpose of providing utility, telecommunication or cable television services except in compliance with the provisions of this division. All construction activities in, on and under the rights-of-way shall be undertaken in compliance with the provisions of this division.
(b) 
The provisions of this division shall apply to the use and/or occupancy of the rights-of-way by a person under the authority granted by a franchise agreement or ordinance as if fully set forth in the franchise agreement or ordinance. The express terms of this division will prevail over conflicting or inconsistent provisions in a franchise agreement or ordinance unless such franchise agreement expresses an explicit intent to waive a requirement of this division.
(c) 
The provisions of this division shall be liberally construed in favor of the city in order to effectuate the purposes and objectives of this division and to promote the public interest.
(2003 Code, sec. 3.2002)
(a) 
Required.
All users and occupants of the rights-of-way shall register with the city pursuant to this section. For existing users and occupants, such registration shall be accomplished within thirty (30) days following the date of final adoption of this division (ordinance adopted March 20, 2007). For persons using and occupying the rights-of-way under a franchise, permit or license that is valid on the effective date of this division, such existing valid franchise, permit or license shall be considered such person’s initial registration hereunder. Persons seeking to use or occupy the rights-of-way after adoption of this division shall register with the city prior to initiating any such use or occupancy. All registrations must be renewed annually on or before January 31 of each calendar year using forms developed by and available from the city. For persons with a current franchise from the city, the franchise will be evidence of renewal. If a registration is not renewed, the facilities will be deemed to have been abandoned ninety (90) days after the date written notice was sent to the facility owner by the city. Persons that are not certificated telecommunications providers providing access lines, as defined in chapter 283, Texas Local Government Code, are also required to obtain a franchise or license from the city in accordance with the city charter or ordinances in addition to registering under the provisions of this section prior to entering into the rights-of-way.
(b) 
Purpose.
The purpose of registration under this section is to:
(1) 
Provide the city with accurate and current information concerning the users and occupants of the rights-of-way;
(2) 
Assist the city in enforcement of this division; and
(3) 
Assist the city in monitoring compliance with applicable laws.
(c) 
Contents.
The registration shall include:
(1) 
The name of the user and occupant of the rights-of-way;
(2) 
The name, address and telephone number of people who will be contact person(s) for the user and occupant;
(3) 
Proof of insurance as required in section 3.08.078 hereof; and
(4) 
A description of the type of facilities in the rights-of-way, for example, electronic conduit, fiber-optic cables, wire cables, coaxial cables and the like. This description shall include a statement of whether the user and occupant is a certificated telecommunications provider as defined in section 283.002(2) Texas Local Government Code, and, if so, whether the user and occupant is providing access lines as defined in section 283.002(1) Texas Local Government Code.
(2003 Code, sec. 3.2003)
(a) 
Temporary rearrangement or removal of aerial facilities.
Upon written request, the registered user shall remove, raise or lower its aerial wires, fiber or cables temporarily to permit the moving of houses or other bulky structures. The expense of such temporary rearrangements shall be paid by the person requesting them, and the registered user may require payment in advance. The registered user shall make temporary arrangement or removal as soon as practicable, but in all events such rearrangement or removal shall be accomplished within forty-five (45) calendar days after notification by moving permit holder [sic].
(b) 
Trimming trees.
The registered user, its contractors and agents have the right, permission and license to trim trees upon and overhanging the rights-of-way to prevent trees from coming in contact with the registered user’s facilities. All trimming shall be done in consideration of the health of the trees and shall be limited to the minimum amount necessary to eliminate the interference with the facilities. When directed by the city, tree trimming shall be done under the supervision and direction of the public works department of the city or under the supervision of the city’s delegated representative. Under normal circumstances, registered users shall notify adjacent residents and occupants at least forty-eight (48) hours in advance of any trimming. Any tree trimmings generated by the registered user, its contractors or agents shall be removed within twenty-four (24) hours. Should the registered user, its contractors or agents fail to timely remove such trimmings, the city may remove same or have them removed and shall bill the registered user for all costs incurred, which costs shall be promptly paid by the registered user. Nothing herein shall be construed to grant a registered user the right to access to private property.
(c) 
City facilities.
The city shall have the right at all times to lay, and to permit to be laid, sewer, gas, water and other pipelines or cable and conduits, as well as drainage pipes and channels and [in the] streets and to do and permit to be done any underground and overhead installation or improvement that may be deemed necessary or proper by the governing body of the city in, across, along, over or under any rights-of-way occupied by a registered user, and to change any curb, sidewalk, or the grade of any street and to maintain all of the city’s facilities.
(d) 
Removal or relocation of facilities.
Whenever it shall be necessary to require a registered user to relocate its facilities to permit the widening or straightening of a street construction or any water, sewer or stormwater facilities by the city associated with widening or straightening of a street, the city shall give the registered user one hundred twenty (120) calendar days’ notice of such requirement. Such relocation shall be made by the registered user promptly with consideration given to the magnitude of such alterations or changes without claim for reimbursement or damages against the city. If any such requirements impose a financial hardship upon the registered user, the registered user shall have the right to promptly present alternative proposals to the city, and the city shall give due consideration to any such alternative proposals. If the city determines that the preservation and protection of the public health and safety require removal of facilities from the rights-of-way that are being abandoned, the city shall require the registered user to remove its facilities entirely from the abandoned rights-of-way at no cost to the city.
(e) 
Right of city to move facilities in case of emergency.
The city retains the right to move any facilities within the rights-of-way to cure or otherwise address a public health or safety emergency. The city shall cooperate to the extent possible with the registered user in such instances to assure continuity of service and to afford to the registered user the opportunity to make such relocation itself.
(f) 
Abandonment of facilities.
Whenever a registered user intends to abandon any of its facilities within the right-of-way, it shall submit to the director written notification of such intent, describing the facility to be abandoned and the date of the proposed abandonment. Such notification shall include a statement of waiver of claims against the city for subsequent damages to abandoned facilities. The city may require the registered user at the registered user’s expense:
(1) 
To remove the facility from the rights-of-way; or
(2) 
To modify the facility in order to protect the public health and safety or otherwise serve the public interest.
A registered user shall remove all abandoned above-ground facilities and equipment upon receipt of written notice from the city and shall restore any affected rights-of-way to their former state at the time such facilities and equipment were installed so as not to impair their usefulness. In removing its plant, structures and equipment a registered user shall refill, at his own expense, any excavation necessarily made by it and shall leave all rights-of-way in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles or attachments. The city shall have the right to inspect and approve the condition of the rights-of-way, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this division shall continue in full force and effect during the period of removal and until full compliance by the registered user with the terms and conditions of this division. Notwithstanding anything to the contrary set forth in this division, a registered user may abandon any underground facilities in [place so long as it does not materially interfere with the public right-of-way or the use] thereof by any public utility, cable operator or other registered users.
(g) 
Public nuisance abatement.
The city may require the removal or abatement of any facility determined by the city to cause a public nuisance. The city shall give the registered user written notice of the required removal or abatement. No later than thirty (30) calendar days after the registered user is unable to remove or abate such facility for specified reasons, the director may, but is not required to, grant additional time to the registered user or negotiate alternate arrangements with the registered user. If the registered user does not so notify the city and fails or refuses to act, the city may remove or abate the facility, at the sole cost and expense of the registered user, all without compensation or liability for damages to the registered user.
(2003 Code, sec. 3.2004)
(a) 
Required.
No person shall perform any construction, repairs, maintenance or installation of facilities in the rights-of-way without obtaining a construction permit from the city hereunder. The permit will be in the name of the person who will own the facilities to be constructed. The permit application must be completed and signed by a representative of the owner of the facilities to be constructed. During the term of the permit, the permittee shall be liable for the acts or omissions of any entity used by the permittee when such entity is involved directly or indirectly in the construction and installation of the permittee’s facilities to the same extent as if the acts or omissions of such entity were the acts or omissions of the permittee. The provisions of this section are solely for the benefit of the city and the registered user and are not intended to create, grant or affect any rights, contractual or otherwise, to or of any other person.
(b) 
Emergency exception.
Emergency responses related to existing facilities may be undertaken without first obtaining a permit; however, the department shall be notified within two (2) business days of any construction related to an emergency response including the provision of a reasonably detailed description of work performed in the rights-of-way. An updated map of any facilities that were relocated, if applicable, shall be provided within ninety (90) calendar days.
(c) 
Other exceptions.
The phrase “construction or installation of facilities” does not include the repair or maintenance of existing facilities or the installation of facilities necessary to initiate services to a customer’s property unless such repair, maintenance or installation requires the breaking of pavement, or boring, or the closure of nonresidential traffic lanes. If the closure of a nonresidential traffic lane does not require breaking of pavement, excavation or boring, then such closure is not included in the phrase “construction or installation of facilities” if such closure is for no longer than six (6) consecutive hours.
(d) 
Application requirements.
(1) 
A written application shall be filed with the city for a permit pursuant to this section. An applicant shall assert in its application that it is in compliance with all requirements of this division and with all applicable laws.
(2) 
To be acceptable for filing, a signed original of the application shall be submitted to the appropriate city official and contain all required information. The permit fee shall be submitted with the application. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
(3) 
All applications accepted for filing shall be made available by the city for public inspection. However, if plans of record submitted in an application include information expressly designated by the applicant as a trade secret or other confidential information protected from disclosure by state law, the director may not disclose that information to the public without the consent of the applicant, unless otherwise compelled by an opinion of the attorney general of the state pursuant to the Texas Open Records Act, as amended, or by a court having jurisdiction of the matter pursuant to applicable law. This subsection may not be construed to authorize an applicant to designate all matters in its application as confidential or as trade secrets. If the city receives a request pursuant to the Texas Open Records Act for information designated as a trade secret or confidential information by the applicant, the city will promptly notify the applicant of such request. If deemed appropriate and necessary by the city, the city will request an opinion from the attorney general as to whether the requested information may be withheld. The applicant shall be responsible for supporting its claim of confidentiality.
(e) 
Information in application.
An application for a construction permit shall contain the following information:
(1) 
The proposed approximate location and route of all facilities to be constructed or installed and the applicant’s plan for rights-of-way;
(2) 
Engineering plans on a scale of not to exceed one inch (1") equals one hundred feet (100') unless otherwise approved by the department. In all events plans shall be legible when reduced to one-half (1/2) scale of original sheet size on sheets measuring eleven inches (11") by seventeen inches (17");
(3) 
Detail of the location of all rights-of-way and utility easements that the applicant plans to use;
(4) 
Detail of all existing city utilities in relationship to the applicant’s proposed route;
(5) 
Detail of what the applicant proposes to install, such as pipe size, number of interducts, valves and similar information;
(6) 
Detail of plans to remove and replace asphalt or concrete in streets (include standard construction details);
(7) 
Drawings of any bores, trenches, hand-holes, manholes, switch gears, transformers, pedestals, etc, including depth;
(8) 
Hand-hole and/or manhole typical of the type of manholes and/or hand-holes the applicant plans to use or access;
(9) 
A description of trench safety measures to be utilized in all excavations over five feet (5') in depth;
(10) 
Complete legend of drawings submitted by the applicant, which may be provided by reference to previously submitted documents provided such documents are current and up-to-date;
(11) 
Three (3) sets of engineering plans must be submitted with the permit application;
(12) 
If known, the name, address and phone number of the contractor or 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 the construction;
(13) 
A description of the construction and installation methods to be employed for the protection of existing structures, fixtures and facilities within or adjacent to the rights-of-way and the estimated dates and times work will occur, all of which (methods, dates, times, etc.) are subject to the approval of the director; and
(14) 
A statement that the insurance and bonding requirements contained herein are met.
(f) 
Fee.
To be acceptable for filing, an application shall be accompanied by a permit fee in the following amount as appropriate:
(1) 
For certificated telecommunications providers providing access lines (as defined in chapter 283 Local Government Code);
(2) 
For persons occupying the rights-of-way of the city under a franchise ordinance or agreement; and
(3) 
For all other applicants.
(g) 
Processing of application.
Within five (5) working days after receipt of a complete application and permit fee, if applicable, the city shall issue a construction permit.
(h) 
Applicant in noncompliance.
The city may refuse to issue a permit to the applicant if the city determines that the applicant is presently in a state of noncompliance with this division or if the applicant has failed to adequately respond to any notice or request for action from the city under this division. The city may continue to refuse to issue a permit until the applicant has corrected its noncompliance or has otherwise adequately responded to such notice or request for action from the city.
(2003 Code, sec. 3.2005)
(a) 
Attachment to existing facilities.
Before initiating construction on rights-of-way, a permittee will make all reasonable efforts to attach its facilities to existing poles and to share existing conduit space as appropriate. Nothing contained in this section shall be construed to require or permit the attachment on or placement in a permittee’s facilities of any electric light or power wires or facilities or other systems not owned by the permittee. If the city desires to attach or place electric light or power wires, communications facilities or other similar systems or facilities in or on the permittee’s facilities, then a further separate, noncontingent agreement with the permittee shall be required. Nothing contained in this section shall obligate the permittee to exercise, or restrict the permittee from exercising, its right to enter voluntarily into pole attachment, pole usage, joint ownership or other wire space or facilities agreements with any person authorized to operate in the right-of-way of the city.
(b) 
Traffic disruptions.
The permittee shall endeavor to minimize disruptions to the efficient use of the rights-of-way by pedestrian and vehicular traffic and rights-of-way shall not be blocked for a longer period than shall be reasonably necessary to execute all construction, maintenance and/or repair work. All lane closures must comply with the Texas Manual on Uniform Traffic Control Devices.
(c) 
Pole placement.
All poles placed shall be of sound material and reasonably straight, and shall be set so that they will not interfere with the flow of water in any gutter or drain, and so that they will not unduly interfere with ordinary travel on the streets or sidewalks. The location and route of all poles, stubs, guys, anchors, conduits, fiber and cables placed and constructed by the permittee in the construction and maintenance of its facilities in the city shall be subject to the lawful, reasonable and proper control, direction and/or approval of the city.
(d) 
Work to be in accordance with permit.
All construction and installation in the rights-of-way shall be in accordance with the permit for the facilities. The director shall be provided access to the work and to such further information as he/she may reasonably require ensuring compliance with the permit. A copy of the construction permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the city at all times when construction or installation work is occurring.
(e) 
Time for completion.
All construction or installation 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 permittee may request in writing an extension from the director. So long as the written extension request is made before the permit has expired, work may continue pending a decision by the director on the extension request.
(f) 
Notification that construction is ready to proceed.
The department must be notified twenty-four (24) hours in advance that construction is ready to proceed by the permittee, its contractor or other representative. If not previously provided, such notice shall include information required in section 3.08.075. All construction shall be in conformance with all city codes and applicable local, state and federal laws.
(g) 
Signage.
Legible information signs stating the identity of the person doing the work, telephone number and the permittee’s identity and telephone number shall be placed at the location where construction is to occur at least 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. An information sign will be posted at both ends of the construction area unless other posting arrangements are approved or required by the director.
(h) 
Erosion and stormwater controls.
Erosion control measures (e.g., silt fence) and advance warning signs, markers, cones and barricades must be in place before work begins. The permittee shall be responsible for stormwater management erosion control that complies with city, state and federal guidelines. Upon request, the permittee may be required to furnish documentation submitted or received from federal or state governments.
(i) 
Lane closures.
Except in the event of emergency, lane closures on major thoroughfares will be limited to after 8:30 a.m. and before 4:00 p.m. unless the department grants prior approval. Arrow boards will be required on lane closures with all barricades, advance warnings signs and thirty-six-inch (36") reflector cones placed according to the specifications of the department. All barricading must comply with the Texas Manual on Uniform Traffic Control Devices.
(j) 
Responsibilities of permittee.
Permittees are responsible for the workmanship and any damages by contractors or subcontractors. A responsible representative of the permittee shall be available to the department at all times during construction. The provisions of this section are solely for the benefit of the city and the registered user and are not intended to create, grant or affect any rights, contractual or otherwise, to or of any other person.
(k) 
Damage to utilities.
The permittee, contractor or subcontractor shall notify the department immediately of any damage to other utilities, either city or privately owned.
(l) 
Cuts.
Except in the event of an emergency, when a street or sidewalk cut is required, prior approval must be obtained from the department and all requirements of the department [shall be followed]. Repair of all street and sidewalk removals shall be made promptly to avoid safety hazards to vehicle and pedestrian traffic.
(m) 
Interference with city utilities.
Installation of facilities must not interfere with city utilities, in particular gravity-dependent facilities.
(n) 
Installed depth.
New non-municipal facilities must be installed to a depth approved by the department.
(o) 
Boring.
All directional boring shall have a locator place bore marks and depths while the bore is in progress. The locator shall place a mark at each stem with a paint dot and shall mark the depth of at least every other stem.
(p) 
Working hours.
Except in emergencies, the working hours in the rights-of-way [are] between one (1) hour after sunrise and sunset, Monday through Friday. Nonemergency work that needs to be performed outside these hours must be approved in advance. The department must approve any nonemergency work performed on Saturday forty-eight (48) hours in advance. Directional boring is permitted only Monday through Friday from 7:00 a.m. to 6:00 p.m. unless approved in advance. No work will be done except for emergencies on Sundays or city holidays.
(q) 
Line locations.
Permittees working in the rights-of-way are responsible for obtaining line locates from all affected utilities or others with facilities in the rights-of-way prior to any excavation. Use of a geographic information system or the plan of record does not satisfy this requirement. The permittee shall be responsible for verifying the location, both horizontal and vertical, of all affected facilities prior to any excavation or boring with the exception of work involving lane closures as set forth above. The permittee shall provide location data of its facilities to all other utilities when requested to do so by other utilities preparing to work in the area of such facilities. Requests for location of city-owned utilities shall be made no later than forty-eight (48) hours in advance of construction. In an emergency situation no less than two (2) hours is required. The permittee shall properly mark the proposed location of its facilities in order that city locators can appropriately mark city-owned utilities.
(r) 
Manholes and hand-holes.
The department must approve placement of all manholes and/or hand-holes in advance. Hand-holes or manholes will not be located in sidewalks unless approved by the director.
(s) 
Pumping.
Construction that requires pumping of water or mud shall be contained in accordance with city ordinances, federal and state law, and the directives of the department.
(t) 
Restoration of right-of-way.
(1) 
Restoration of rights-of-way shall be to the reasonable satisfaction of the department. Restoration shall be made in a timely manner as specified by approved department schedules and to the satisfaction of the director.
(2) 
If restoration is not satisfactory or is not 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 as required herein is complete. If restoration work is not completed in a timely manner, the registered user is subject to the criminal penalties described in section 3.08.082 and the additional following procedures shall be followed:
(A) 
Notice of failure to act and request for restoration. The city shall provide the permittee with reasonable notice and time to complete restoration.
(B) 
If the permittee continues to delay, the director and the permittee will jointly review the restoration request in an expeditious manner to establish a mutually acceptable completion date for the restoration.
(C) 
If the permittee continues to delay or does not meet the revised completion date, the director shall provide not less than five (5) calendar days’ written notice to the permittee advising of the city’s intent to perform the restoration.
(D) 
If, after expiration of the written notice required by the preceding sentence, the permittee continues to delay, the city shall have the right to perform the restoration. The city shall not be liable to the permittee for any damage to any of its facilities and shall not be liable in any event for any consequential damages relating to service interruptions. If the restoration performed by the city involves the construction or improvement of base or pavement of rights-of-way, the permittee shall not thereafter disturb such rights-of-way for a period of three (3) years after completion of such improvements except when necessary in the event of an emergency.
(3) 
The permittee shall warrant all pavement repairs for a period of two (2) years after restoration has been completed. The restoration shall include but not be limited to:
(A) 
Replacing all ground cover with the type of ground cover damaged during work, or better, or by sodding as directed by the department;
(B) 
Installation of all manholes and hand-holes are [as] appropriate;
(C) 
All bore pits, potholes, trenches or any other holes shall be filled in or covered daily unless other safety procedures are approved by the department;
(D) 
Leveling of all trenches and backhoe lines (all trench backfill must comply with density requirements per the city standards and the city must be provided with a copy of all density reports); and
(E) 
Restoration of all landscaping, ground cover and sprinkler systems to the original condition.
(2003 Code, sec. 3.2006)
(a) 
General provisions.
(1) 
Registered users who are not certificated telecommunications providers as defined in chapter 283 of the Texas Local Government Code shall indemnify and hold the city, its officers and employees harmless from all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorneys’ fees and costs of defense), proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to personal or bodily injury (including death), property damage or other harm for which recovery of damages is sought, that may arise out of or be caused by the registered user’s negligent act, error or omission of the registered user, any agent, officer, director, representative, employee or subcontractor of the registered user, and their respective officers, agents, employees, directors and representatives while in the exercise of or performance of the rights or duties under this division. The indemnity provided for in this subsection shall not apply to any liability resulting from the negligence of the city, its officers or employees in instances where such negligence causes personal or bodily injury, death or property damage. In the event a court of competent jurisdiction finds the registered user and the city jointly liable, liability shall be apportioned comparatively in accordance with the laws of the state, without, however, waiving any governmental immunity available to the city under state law and without waiving any defenses of the parties under state law. The provisions of this subsection are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity.
(2) 
Registered users who are certificated telecommunications providers as defined in chapter 283 of the Texas Local Government Code, as amended, shall indemnify the city as provided in section 283.057, Texas Local Government Code, as amended.
(b) 
Notice of claim.
The city shall give the registered user written notice of any claim for which the city seeks indemnification. The registered user shall have the right to investigate, defend and compromise any such claim. The registered user shall promptly advise the city in writing of any claim or demand against the city or the registered user known to the registered user related to or arising out of the registered user’s activities under this division.
(c) 
Financial security requirements.
In the event the director determines, based upon reasonable grounds, that a bond is necessary to protect the public assets, or the health and safety of the public, then the director may require a registered user to post financial security in an amount not to exceed one hundred thousand dollars ($100,000.00). The director shall consult with the city’s finance director prior to imposing the financial security requirement on a registered user. Factors to be considered in determining reasonable grounds may include, but are not limited to, a conviction for violation of this division, a general pattern of substandard adherence to the provisions of this division, a failure to provide prompt resolution of claims, or the failure to comply with this division. If three (3) years pass from the date that the director requires financial security from a registered user and it has not been necessary for the city to seek performance under the financial security, then financial security will no longer be required pursuant to this division, unless the director makes an additional determination that such security is required. The form of financial security shall be, at the registered user’s option, one of the following:
(1) 
A surety bond company authorized to do business in the state with a registered agent for service in the county. All bonds shall be on city-approved forms;
(2) 
An unconditional and irrevocable letter of credit issued to the city by a bank with a location in the county; or
(3) 
A cash deposit.
(d) 
Security provided by cash deposit.
Security provided by a cash deposit shall be made to an interest-bearing account during the term of the deposit. At the end of the deposit period, all unused amounts, plus interest, shall be refunded to the registered user.
(e) 
Right of city to draw on financial security.
Failure of the registered user to comply with its obligations under this division or the permit as determined by the city shall entitle the city to draw against the financial security required by this section. The rights reserved to the city with respect to the financial security are in addition to all other rights of the city, whether reserved by this division or authorized by law, and no action, proceeding or exercise of a right with respect to such financial security shall affect any other rights the city may have.
(f) 
Alteration of bond; drawing on bond.
Financial security provided by a surety bond shall not expire or be materially altered without forty-five (45) calendar days’ written notice and without securing and delivering to the city a substitute, renewal and replacement bond in accordance with this section, consistent with the replacement and continuous coverage requirements for insurance found in section 3.08.078 hereof. In the event the city draws monies against the bond, the city [shall so notify the registered user. Within ten calendar days after such notification the registered user] shall pay such funds to the bonding company as necessary to bring the bond back to the original or adjusted principal amount where it shall continue to be maintained at all times. The bond shall contain the following endorsement: “It is hereby understood and agreed that this bond may not be reduced, altered or canceled by the Registered User or the bonding company without forty-five (45) calendar days’ written notice by certified mail to the City.”
(g) 
Drawing on letter of credit.
In the event the city draws monies against financial security provided by a letter of credit, the city shall so notify the registered user. Within ten (10) calendar days after such notification the registered user shall deposit funds in the bank under the letter of credit sufficient to bring the balance available under the letter of credit back to the original or adjusted principal amount, where it shall continue to be maintained at all times.
(h) 
Drawing on cash deposit.
If the city draws monies out of a cash deposit, the city shall so notify the registered user. Within ten (10) calendar days after such notification, the registered user shall deposit additional funds in such account sufficient to bring the balance available back to the original or adjusted principal amount.
(2003 Code, sec. 3.2007)
(a) 
Certificate of insurance.
In order to comply with the registration requirements of this division and prior to the issuance of a construction permit, the applicant shall furnish a completed certificate of insurance to the department which shall be completed by an agent authorized to bind the named underwriter(s) and the company to the coverage, limits and termination provisions shown thereon, and which shall furnish and contain all required information referenced or indicated thereon. Neither the registration nor the construction permit shall be issued until such certificates shall have been delivered to the department, and no officer or employee shall have the authority to waive this requirement.
(b) 
Coverage amounts.
A registered user and a permittee shall obtain and maintain in full force and effect for the duration of the use and occupancy of the rights-of-way or of the work to be performed under the permit, respectively, at the registered user’s or permittee’s sole expense, insurance coverage written on an occurrence basis by companies authorized and admitted to do business in the state and rated A or better by A.M. Best company and/or otherwise acceptable to the city in the following types and amounts as evidenced by a certificate of insurance filed with the city:
(1) 
Workers’ compensation/employer’s liability: Statutory/$500,000.00 per occurrence.
(2) 
Commercial general or excess liability on an occurrence or claims-made form with minimum limits of $5,000,000.00 per occurrence and $10,000,000.00 aggregate. This coverage shall include the following:
(A) 
Products/completed operations to be maintained for one year;
(B) 
Personal and advertising injury;
(C) 
Contractual liability; and
(D) 
Explosion, collapse, or underground (XCU) hazards.
(3) 
Automobile policy: combined single limit: $1,000,000.00.
(c) 
Required provisions.
All insurance contracts and certificates of insurance will contain the following required provisions:
(1) 
A cancellation provision in which the insurance company is unconditionally required to notify the city in writing not fewer than thirty (30) days before canceling, failing to renew or reducing policy limits.
(2) 
The certificate shall state the policy number, the name of the insurance company, the name and address of the agent or authorized representative of the insurance company, the name, address and telephone number of the insured, the policy expiration date and specific coverage amounts.
(3) 
The certificate shall name the city as an additional insured on general liability.
(4) 
A waiver of subrogation in favor of the city on both general liability and workers’ compensation.
(d) 
Self-insurance.
With respect to the registered user’s and permittee’s obligations to comply with the requirements for commercial general (public) liability insurance coverage, the city may allow the registered user or permittee to self-insure upon annual production of evidence that is satisfactory to the city. With respect to the registered user’s or permittee’s obligations to comply with the requirements for automobile liability insurance and for workers’ compensation insurance, the registered user or permittee may self-insure, provided the registered user or permittee tenders satisfactory evidence of self-insurance as contemplated by the state Motor Vehicle Financial Responsibility Law, Tex. Trans. Code section 601.124, and the Texas Workers’ Compensation Act, Tex. Labor Code, section 406.001 et seq.
(e) 
Users with franchise agreement.
Registered users with franchise agreements or licenses from the city may meet the above insurance and bonding requirements if their current franchise adequately provides for insurance or bonds, or provides an indemnity in favor of the city.
(2003 Code, sec. 3.2008)
(a) 
Requirements.
In addition to any requirements that may be contained in a franchise agreement, upon written request, the registered user shall provide the city information as to all matters in connection with or affecting the construction, reconstruction, removal, maintenance and repair of its facilities performed by the registered user in the rights-of-way within ten (10) calendar days of such request.
(b) 
Use by city.
The city will use the information provided by permittees and registered users pursuant to this division only for the purposes of protection and management of the public rights-of-way.
(2003 Code, sec. 3.2009)
(a) 
Within thirty (30) calendar days after the effective date of a transfer of ownership or control of the facilities in the rights-of-way, the transferee shall register with the city in accordance with the provisions of this division.
(b) 
The acceptance by the city of the registration of the transferee does not constitute a waiver or release of any of the rights of the city under this division whether arising before or after the date of the transfer.
(2003 Code, sec. 3.2010)
All notices required herein shall be in writing and shall be delivered in person to the respective parties or sent by certified mail at the addresses set forth in the registration or the permit application.
(2003 Code, sec. 3.2011)
(a) 
Each violation of this division shall be punishable by a fine not to exceed five hundred dollars ($500.00) for each violation. Each day upon which there exists a violation of this division or a failure to abide by or comply with any provision or requirement of this division shall constitute a separate occurrence, and may subject the offender to additional penalties.
(b) 
In addition to the criminal penalties set forth herein, the city may seek termination of the permit and a suit in court to compel compliance in accordance with the following procedures:
(1) 
If the city has reason to believe that [a violation has occurred, the city shall notify] the registered user/permittee in writing of the violation setting forth the nature of such violation. Within thirty (30) calendar days of receipt of such notice, the registered user/permittee shall respond in writing to provide explanation or documentation to support that the violation did not occur. The registered user/permittee shall be allowed thirty (30) calendar days to cure violations after written notice is received from the city by taking appropriate steps to comply with the terms of this division and any lawful regulations. If the nature of the violation is such that it cannot be fully cured within thirty (30) calendar days, the period of time in which the registered user/permittee must cure the violation shall be extended for such additional time necessary to complete the cure provided that:
(A) 
The registered user/permittee shall have promptly commenced to cure; and
(B) 
The registered user/permittee is diligently pursuing its efforts to cure.
(2) 
Upon evidence being received by the city that violations of this division, any city charter provisions or any ordinances lawfully regulating a registered user/permittee in the construction and operation of its facilities have occurred or continue to occur after the thirty (30) calendar day period and any additional time necessary to cure, the city may cause an investigation to be made. If the city finds that such a violation continues to exist or has occurred, then the city may take any action authorized by law, including termination of the permit and a suit in court to compel compliance.
(c) 
Failure by the city to enforce any rights under this division does not constitute a waiver of such rights.
(d) 
If a registered user is a franchisee of the city and such franchise expires or is otherwise terminated, if a registered user fails after receiving written notice from the city to renew its registration as required in section 3.08.073(a) or if for any other reason a registered user abandons its facilities in the rights-of-way, then to protect the public health and safety and to the extent authorized by law, the city may require the registered user to remove its facilities and equipment at the registered user’s expense upon fifteen (15) calendar days’ written notice. If the registered user fails to do so within a reasonable period of time, the city may have the removal done at the registered user’s expense.
(2003 Code, sec. 3.2012)
(a) 
The obligations and undertakings of the parties in this division shall be performed at the city. Venue of any suits arising hereunder shall be the county.
(b) 
The director, either directly or through a duly appointed designee, shall have the responsibility for overseeing the day-to-day administration of this division. The director shall be empowered to take all administrative actions on behalf of the city except for those actions specified in this division that are reserved to the city council. The director may recommend that the city council take certain actions with respect to the permit.
(c) 
A registered user/permittee shall have the right to appeal to the city council any decision of the director relating to such registration or permit. Such appeal must be made by written request within fifteen (15) calendar days of the director’s decision that the registered user/permittee seeks to appeal.
(2003 Code, sec. 3.2013)