The purpose of this article is to:
(1)
Assist in the management of public rights-of-way in a nondiscriminatory
and competitively neutral manner.
(2)
Govern the use and occupancy of the rights-of-way by certificated
telecommunications providers, cable service providers, electric distribution
systems, gas distribution systems, and all other persons expressly
authorized by the village or state law to construct and maintain facilities
in the public rights-of-way.
(3)
Assure that the village can continue to fairly and responsibly protect
the public health, safety and welfare and effectively manage its rights-of-way
as a vital public resource.
(Ordinance 2001-16, sec. I(A), adopted 4/9/01)
Whenever used in this article, the following terms, as well
as their singular, plural, and possessive forms, shall have the following
definitions and meanings, unless the context of the sentence in which
they are used indicates otherwise:
means cable service as defined in the Cable Communications
Policy Act of 1984, as amended, 47 U.S.C.A. section 522 et seq.
means a person who has been issued a certificate of convenience
and necessity, certificate of operating authority, or service provider
certificate of operating authority by the public utility commission
to offer local exchange telephone service.
means any district or authority created by authority of either
Texas Constitution, article III, section 52(b)(1)–(2), or article
XVI, section 59.
means any and all of the duct spaces, manholes, lines, wires,
fibers, poles, conduits, underground and overhead passageways, and
other equipment, structures, plant and appurtenances, and all associated
transmission media placed in, on, over or under the public rights-of-way,
including wires, cables and pipelines.
means a person that the village has expressly granted the
authority to use, occupy and construct facilities within the village’s
public rights-of-way pursuant to a duly enacted franchise ordinance.
The term also includes certificated telecommunications providers,
districts, and water supply corporations.
means a natural person (an individual), corporation, company,
association, partnership, firm, limited liability company, joint venture,
joint stock company or association, cooperative, utility, public utility,
retail public utility, district, water supply corporation, political
subdivision and other such entity.
means the area on, below, above or adjacent to a public roadway,
highway, street, public sidewalk, alley, waterway, or utility easement,
in which the village has an interest. The term does not include the
airwaves above a right-of-way with regard to wireless telecommunications.
means a public utility as that term is used in the Public
Utility Regulatory Act of 1995, Texas Utilities Code, section 11.004,
including municipally owned and/or operated utilities.
means the rent, sale or lease of plant, equipment, facilities,
or other property for the transmission of voice, data, images, graphics
and other communications between or among points by wire, fiber optics,
or other similar facilities, but does not include the provision to
the public of any “wireless service,” as defined by law,
and does not include long-distance transmissions (inter-LATA and intra-LATA
toll transmissions).
means “telecommunications utility” as used in
the Public Utility Regulatory Act of 1995, Texas Utilities Code, section
51.002(11).
means installation, construction, reconstruction, maintenance,
or repair of any facilities in, over, under, along, through or across
the public rights-of-way for any purpose whatsoever.
means the governing body (i.e., the “city council”)
of the village.
means a nonprofit water supply or sewer service corporation
created or operating under Texas Water Code chapter 67.
(Ordinance 2001-16, sec. I(B), adopted 4/9/01; Ordinance adopting Code)
The village hereby recognizes that it has the legal duty to
ensure that it will not create physical or economic barriers to any
grantee attempting to enter the market, and to ensure that all village
regulations are imposed in a competitively neutral manner.
(Ordinance 2001-16, sec. I(C), adopted 4/9/01)
This article shall be construed in accordance with the other
village ordinances in effect on the date of passage of this article
and as may be amended from time to time to the extent that this article
is not in conflict with or in violation of the constitution and laws
of the United States or the State of Texas.
(Ordinance 2001-16, sec. I(D), adopted 4/9/01)
(a)
Generally.
No person shall use, occupy or construct
facilities in, upon, over or under the village’s public rights-of-way
without first having applied for and received a franchise or other
authorization unless otherwise provided by law.
(b)
Certificated telecommunications providers.
Pursuant
to Texas Local Government Code chapter 283, a CTP is not required
to obtain a franchise. A CTP is subject to all other provisions of
this article.
(Ordinance 2001-16, sec. II, adopted 4/9/01)
(a)
Registration required.
No person shall use, maintain,
operate, occupy or construct facilities in, upon, over, or under the
village’s public rights-of-way without having registered with
the village in accordance with the following provisions. In order
to protect the public health, safety and welfare, all persons using
or occupying the rights-of-way will register with the village. Registration
will be issued in the name of the person who will own the facilities.
Registration must be renewed every five (5) years. If a registration
is not renewed, subject to 60-day notification to the owner, the facilities
of the user will be deemed to have been abandoned.
(b)
Required information.
(1)
Registration shall be on a form prescribed by the village and shall
include:
(A)
The name of the user of the rights-of-way;
(B)
The name, address and telephone number of the people who will be
contact person(s) for the user;
(C)
The name, address and telephone number of any and all contractors
or subcontractors who will be working in the rights-of-way on behalf
of the user;
(D)
The name(s) and telephone number of an emergency contact who shall
be available twenty-four (24) hours a day;
(E)
Proof of insurance, as specified in section 10.02.008(b).
(2)
When any information provided in the registration changes, the user
shall inform the village of the change no more than thirty (30) days
after the date the change is made.
(Ordinance 2001-16, sec. III, adopted 4/9/01)
(a)
Right-of-way construction permit.
(1)
No person shall excavate, construct, install, repair or maintain
facilities in, upon, over or under the village’s public rights-of-way
or affect traffic flow without first having applied for and received
a non-exclusive rights-of-way construction permit from the village
in accordance with the following provisions. Persons, including grantees,
are required to obtain a rights-of-way construction permit prior to
conducting land disturbing activities for any reason in the public
rights-of-way.
(2)
A permit shall not be required for the installation of facilities
necessary to initiate service to a customer’s property, or repair
or maintenance of existing facilities unless such repair or maintenance
requires the breaking of pavement, the closure of a nonresidential
traffic lane, excavation or boring.
(3)
No permit shall be issued unless the grantee has a valid franchise, as provided by section 10.02.005, and the grantee is in full compliance with all terms of the franchise, including payment of any franchise fees.
(4)
No permit shall be issued unless the grantee has registered with the village, as provided by section 10.02.006.
(5)
The rights-of-way construction permits shall be available without
charge and shall not be unreasonably delayed or withheld by the village.
(6)
On a form prescribed by the village, the grantee shall provide the
following information in order to apply for a rights-of-way construction
permit:
(A)
The name of the grantee;
(B)
The name, address and telephone number of the contact person(s) for
the grantee;
(C)
The name, address and telephone number of any and all contractors
or subcontractors performing the work;
(D)
A detailed description of the project, duration of the project, location
of the desired work, erosion control plan, and proposal for lane closures,
if any; and
(E)
Proof of insurance and a surety bond, as specified in section 10.02.008(b) and (c).
(7)
A copy of the permit and engineering plans shall be maintained at
the construction site and made available for inspection by the village
at all times when construction or installation work is occurring.
(8)
If any of the provisions of this article are not followed, a permit
may be revoked by the mayor or the mayor’s designee. If a person
has not followed the terms and conditions of this article and work
done pursuant to a prior permit, new permits may be denied or additional
terms required.
(9)
Appeal from denial or revocation of permit or from the decision of
the mayor or the mayor’s designee shall be to the village council.
Appeal shall be filed with the village secretary within fifteen (15)
calendar days from the date of the decision being appealed.
(b)
Construction and maintenance of facilities.
(1)
Underground facilities installed by the grantee in areas of new development
in the village shall be under construction within sixty (60) days
of a developer’s request and assurance that the site is ready
for utility installation. The grantee shall maintain good faith efforts
toward completion of the installation of facilities. Surface equipment
may be installed at any time provided no excessive damage to infrastructure
occurs.
(2)
Final or record plats of approved subdivisions may be obtained from
the village. When any final or record plat has been signed by the
property owner and approved by the village, a grantee may begin construction
and installation of facilities in the utility easements as depicted
in the final or record plat.
(3)
Pursuant to the laws of the state and this article, the grantee has
the non-exclusive right and privilege to use and occupy the public
rights-of-way in the village for the purpose of maintaining and operating
its facilities subject to the terms, conditions, and stipulations
set forth in this article, the constitution and laws of the United
States and the State of Texas and the village’s ordinances to
the extent such ordinances are not in conflict herewith.
(4)
The grantee’s facilities and transmission media used in or
incident to the provision of services and to the maintenance of a
business by a grantee in the village shall remain as now constructed,
subject to such changes under the conditions prescribed in this article
as may be considered necessary to protect the public health and safety,
and such changes and extensions as may be considered necessary by
the grantee in the pursuit of its business. The grantee shall at all
times during the term of this article be subject to all lawful exercise
of the police power by the village in the operation and maintenance
of the public rights-of-way. The terms of this article shall apply
throughout the village and shall apply to all of the grantee’s
facilities.
(5)
The permitted working hours in the rights-of-way are 7:00 a.m. to
6:00 p.m., Monday through Friday. Work that needs to be performed
after 6:00 p.m. Monday through Friday must be approved by the village
in advance. Any work performed on Saturday must be approved twenty-four
(24) hours in advance by the village. Directional boring is permitted
only Monday through Friday, 7:00 a.m. to 6:00 p.m., unless approved
in advance. No work will be done, except for emergencies, on Sundays
or legal holidays, unless approved in advance.
(c)
Location of facilities.
All facilities shall be constructed,
installed and located in accordance with the following terms and conditions:
(1)
All telephone lines, cables, wires and pipelines in the village’s
public rights-of-way are required by this article to be placed underground.
Any and all of the grantee’s lines, cables, wires and pipes
installed after the effective date of this article shall be buried.
The grantee shall install its facilities within its existing underground
duct or conduit whenever excess capacity exists within such facility.
In areas of new construction and development within the village, the
grantee shall install and occupy underground conduit or ducts.
(2)
The grantee shall use best efforts to install its facilities within
its existing underground duct or conduit whenever excess capacity
exists within such facility.
(3)
In determining whether any requirement under this section is unreasonable
or unfeasible, the village mayor or the mayor’s designee shall
consider, among other things, whether the requirement would subject
the grantee to an unreasonably increased risk of service interruption,
to an unreasonably increased liability for accidents, to an unreasonable
delay in construction or in the availability of its services, or to
any other unreasonable technical or economic burden.
(d)
Damage to property.
The grantee, or any person acting
on the grantee’s behalf, shall not take any action or permit
any action to be done which may impair or damage any village property
or other property located in, on or adjacent to the public rights-of-way.
Nothing in this article relieves a grantee, municipality, or any other
person or entity from its obligations to obtain locates of underground
facilities before excavation as required by the Underground Facility
Damage Prevention and Safety Act, Texas Utilities Code, section 251.001
et seq. (Vernon. Supp. 1999).
(e)
Notice of repair and emergency work.
The grantee, or
any person acting on the grantee’s behalf, shall not commence
any work in or about village property or public rights-of-way without
providing seven (7) days’ advance notice to the village. If
an emergency exists which makes advance notification impossible, the
grantee may begin that response or repair work, or take any action
required under the circumstances, provided that notice to the village
is given as promptly as possible after beginning the work, and the
grantee acquires any approval required by village ordinances applicable
to emergency response work.
(f)
Maintenance of facilities.
The grantee shall maintain
its facilities in good and safe conditions and in a manner that complies
with all applicable law.
(g)
Relocation or removal of facilities.
(1)
The grantee may not locate or maintain its facilities so as to unreasonably
interfere with the use of village property or public rights-of-way
by the village or by other persons authorized to use or be present
in or upon village property or public rights-of-way. In the event
of unreasonable interference to village property or public rights-of-way,
such facilities shall be moved by the grantee, temporarily or permanently,
as determined by the village mayor or the mayor’s designee upon
reasonable notice. If the temporary removal of the grantee’s
aerial facilities is necessary to permit the moving of houses or other
bulky structures, the grantee shall be required to temporarily remove
the same upon not less than twenty (20) days’ advance notice
by a party permitted to move a building, house or other bulky structure.
Upon a showing that twenty (20) days does not afford a grantee adequate
time to arrange removal of facilities, the parties shall agree upon
a schedule which shall not unreasonably delay the moving of houses
or other bulky structures. The expenses of such temporary relocation
or removal of aerial facilities shall be paid in advance by the party
or parties requesting and benefiting from such temporary relocation
or removal.
(2)
Within ninety (90) days following written notice from the village,
or a mutually agreed-upon time frame, the grantee shall, without claim
for reimbursement or damages against the village, temporarily or permanently
remove, relocate, change or alter the position of any facilities on
village property or within the public rights-of-way whenever village
officials determine that such removal, relocation, change or alteration
is reasonably required for the widening or straightening of streets.
(3)
In any instance in which operation of subsection (g)(1) of this section is deemed by the grantee to impose a significant financial hardship, the grantee shall have the right to present alternative proposals to the village, and the village shall give due consideration to any such alternative proposals.
(4)
If, after proper notice, the grantee fails or refuses to remove or
abate the facilities in question, the village retains the rights and
privilege to remove or abate any such utility facilities, at the sole
cost and expense of the grantee. In performing or permitting such
work to be done, the village shall not be liable to any carrier or
any grantee for any damages to any utility facilities unless directly
and proximately caused by the willful, intentional or malicious act
by the village, and shall not be liable in any event for any consequential
damages relating to service interruptions.
(h)
Emergency removal or relocation of facilities.
The village
retains the right and privilege to cut or move any facilities located
on village property or within the public rights-of-way that the village
may determine to be necessary, appropriate or useful in response to
any public health or safety emergency. The village shall cooperate
to the extent possible with the grantee in such instances to assure
continuity of service, and to afford the grantee the opportunity to
make such relocation and/or removal itself where deemed reasonable,
at the village’s sole discretion. The village shall use all
reasonable means to minimize the disruption of service.
(i)
Restoration of public right-of-way and village property.
(1)
When the grantee, or any person acting on its behalf, does any work
in or affecting any public rights-of-way or village property, it shall,
at its own expense, promptly remove any obstructions and restore such
public rights-of-way or village property to as good a condition as
existed before the work was undertaken, including the compaction of
all trench fill material in accordance with applicable regional standards.
Soil testing shall be undertaken at all street crossings and as requested
by village inspectors, and as is required of all other users of the
public rights-of-way.
(2)
The grantee shall replace and properly re-lay and repair the surface,
base, irrigation system and landscape treatment of any public rights-of-way
that may be excavated or damaged by reason of the erection, construction,
maintenance, or repair of the grantee’s facilities within thirty
(30) calendar days after completion of the work in accordance with
existing standards of the village in effect at the time of the work.
(3)
If weather or other conditions do not permit the complete restoration
required by this section, the grantee shall temporarily restore the
affected rights-of-way or property. Such temporary restoration shall
be at the grantee’s sole expense and the grantee shall promptly
undertake and complete the required permanent restoration when the
weather or other conditions no longer prevent such permanent restoration.
(4)
The grantee shall contain all sediment within the work area using
erosion control measures and erosion-limiting construction techniques.
The grantee shall submit a construction erosion control plan with
all permit applications. All construction materials shall be cleared
from rights-of-way by the end of every business day. A waiver may
be granted for this requirement.
(5)
The grantee or other person acting on its behalf shall use suitable
barricades, flags, flagmen, lights, flares and other measures as required
for the safety of all members of the general public and to prevent
injury or damage to any person, vehicle or property by reason of such
work in or affecting such rights-of-way or property.
(j)
Plans of record.
(1)
Within sixty (60) days of completion of each new permitted section
of the grantee’s facilities, the grantee shall supply the village
with a complete set of “as built” plans of record for
the new permitted section in a format used in the ordinary course
of business of the grantee’s business, to the extent they are
prepared in the ordinary course of business, but excluding customer
specific, proprietary or confidential information and as reasonably
prescribed by the village, and as allowed by law. The village may,
at its discretion, accept any reasonable alternative to “as
built” plans of record which provides adequate information as
to the location of facilities in the public rights-of-way.
(2)
The grantee shall maintain maps of all of the grantee’s facilities
located on village property or within the public rights-of-way and
shall promptly locate its facilities at the village’s request.
(k)
Duty to provide information.
Within twenty (20) days
of a written request from the village mayor or the mayor’s representatives,
the grantee shall furnish the village with information directly related
to the grantee’s use, occupancy or construction within or upon
a public right-of-way and as otherwise required by state law to be
furnished to the village.
(Ordinance 2001-16, sec. IV, adopted 4/9/01)
(a)
Indemnity.
(1)
The grantee shall, at its sole cost and expense, indemnify, defend
and hold harmless the village, its officers, boards, commissions,
agents and employees against and from any and all claims, demands,
causes of actions, suits, proceedings, damages, liabilities and judgments
of every kind arising out of or due to the grantee’s construction,
maintenance, or operation of a system in the village, including but
not limited to damages for injury or death or damages to property,
real or personal, and against all liabilities to others and against
all loss, cost and expense, resulting or arising out of any of the
same.
(2)
The indemnity provided by this subsection does not apply to any liability
resulting from the negligence of the municipality, its officers, employees,
contractors, or subcontractors. If a grantee and the municipality
are found jointly liable by a court of competent jurisdiction, liability
shall be apportioned comparatively in accordance with the laws of
this state, without, however, waiving any governmental immunity available
to the municipality under state or federal law and without waiving
any defenses of the parties under state or federal law. This section
is solely for the benefit of the municipality and the grantee and
does not create or grant any rights, contractual or otherwise, to
any other person or entity.
(3)
The grantee or the village shall promptly advise the other in writing
of any known claim or demand against the grantee or the village related
to or arising out of the grantee’s activities in a public right-of-way.
(b)
Grantee insurance.
(1)
Each grantee shall secure and maintain the following liability insurance
policies:
(B)
Worker’s compensation for the grantee’s employees within
statutory limits.
The liability insurance policies required by this section shall
be maintained by the grantee throughout the term during which the
grantee is otherwise operating within public rights-of-way, or is
engaged in the removal of its facilities.
(2)
Such liability insurance shall be kept in full force and effect by
the grantee during the existence of this franchise and thereafter
for a period of not less than twelve (12) months.
(3)
Unless otherwise precluded by law, the grantee may satisfy one or
more of the insurance requirements specified in this section through
self-insurance. In no event shall a self-insurance proposal be approved
absent the village’s satisfaction that the grantee is in a sound
financial condition, which shall be evidenced by a letter of self-insurance
to be provided to the village.
(c)
Bonds.
(1)
The mayor or the mayor’s designee may waive the requirement
of a bond, if the grantee is able to demonstrate financial responsibility
by having assets in excess of an amount determined appropriate by
the village mayor. In the event the mayor determines a bond is required,
due to insufficient assets or a demonstration that the grantee is
not adequately or promptly fulfilling its responsibilities in the
public rights-of-way, it shall meet the requirements of this section.
(2)
To the extent not maintained by an affiliate, the grantee shall annually
obtain, maintain and file with the village secretary a corporate surety
bond with a surety company authorized to do business in the State
of Texas, and found acceptable by village attorney, in the amount
of seventy-five thousand dollars ($75,000.00), or of the estimated
amount of the value of work anticipated to be done in that year, whichever
is greater, to guarantee the restoration of the rights-of-way in the
event the grantee leaves a job site in the rights-of-way unfinished,
incomplete, or unsafe or unreasonably delays the completion of the
construction. The grantee shall provide this corporate surety bond
within thirty (30) days of the issuance of a permit under this article
but prior to commencement of construction. Should a grantee without
a bond in place leave a job site in the rights-of-way unfinished,
incomplete, or unsafe or unreasonably delay the completion of construction,
the grantee will pay the actual cost of restoring the rights-of-way,
plus an administrative fee to reimburse the village’s cost of
overseeing any such restoration.
(3)
The rights reserved to the village with respect to the bond are in
addition to all other rights of the village, whether reserved by this
article or authorized by law, and no action, proceeding or exercise
of a right with respect to such bond shall affect any other right
the village may have.
(4)
The bond shall contain the following endorsement: “It is hereby
understood and agreed that this bond may not be canceled by the surety
nor any intention not to renew be exercised by the surety until sixty
(60) days after the receipt by Village, by registered mail, of written
notice of such intent.”
(5)
Pursuant to Texas Water Code section 49.220, this subsection does
not apply to districts and water supply corporations.
(d)
Assignment or transfer of business.
The village requires
a grantee to maintain a current point of contact information and provide
notice of a transfer or assignment of business ownership or control.
(e)
Notices.
(1)
All notices to the village shall be in writing via certified mail,
return receipt requested, to:
|
Village Mayor
Village of the Hills
102 Trophy Drive
Austin, Texas 78738
|
(2)
All notices to the grantee shall be in writing via certified mail,
return receipt requested, to the contact person and address provided
by the grantee to the village upon execution of this article. Notice
shall be deemed effective when mailed to the most recent address provided
by the grantee to the village.
(3)
Any change in the address, telephone number or fax number of the
grantee or the village shall be furnished to the other within a reasonable
time.
(Ordinance 2001-16, sec. V, adopted 4/9/01)
(a)
The village may, at reasonable times but not more than once annually
unless there is good cause, make inquiries pertaining to compliance
with this article and the grantee shall respond to such inquiries
on a timely basis.
(b)
The village may establish, after reasonable notice, such rules and
regulations as may be appropriate for the administration of this article
in the construction of the grantee’s facilities on village property
to the extent permitted by law.
(c)
The village shall have the right to lay, and permit to be laid, cable,
electric, gas, water, wastewater, and other pipelines, cables, conduits
or facilities and to do and permit to be done underground and overhead
installation in, across, along, over or under any street, alley, highway,
public right-of-way or public property occupied by the grantee and
to change any curb or sidewalk or grade of any street.
(Ordinance 2001-16, sec. VI, adopted 4/9/01)
(a)
Generally.
The village shall have the power to administer
and enforce the provisions of this article as may be required by governing
law. Any person violating any provision of this article is subject
to suit for injunctive relief as well as prosecution for criminal
violations. Any violation of this article is hereby declared to be
a nuisance.
(b)
Criminal prosecution.
Any person violating any provision of this article shall, upon conviction, be fined a sum in accordance with the general penalty provided in section 1.01.009 of this code. Each day that a provision of this article is violated shall constitute a separate offense. An offense under this article is a misdemeanor.
(c)
Civil remedies.
Nothing in this article shall be construed
as a waiver of the village’s right to bring a civil action to
enforce the provisions of this article and to seek remedies as allowed
by law, including but not limited to the following:
(1)
Injunctive relief to prevent specific conduct that violates this
article or to require specific conduct that is necessary for compliance
with this article; and
(2)
A civil penalty up to $500.00 a day when it is shown that the defendant
was actually notified of the provisions of this article and after
receiving notice committed acts in violation of this article or failed
to take action necessary for compliance with this article; and
(3)
Other available relief.
(Ordinance 2001-16, sec. VII, adopted 4/9/01; Ordinance adopting Code)
(a)
Franchises.
Should all or part of this article be inconsistent
or conflict with a specific franchise ordinance adopted by the village,
the two shall be read together to the extent possible; otherwise,
specific provisions contained within the franchise ordinance shall
govern as to that particular grantee.
(b)
Amendments.
Grantees shall, at all times, be subject
to the lawful exercise of the village’s police power and regulatory
authority and such reasonable and authorized regulations as the village
shall hereafter by resolution or ordinance provide.
(c)
Newly annexed areas.
This article shall apply in newly
annexed areas upon the date of annexation.
(Ordinance 2001-16, sec. VIII(B)–(D),
adopted 4/9/01)
