(a)
The
purpose of this article is to:
(1)
Assist in the management of facilities placed in, on or over the
public rights-of-way in order to minimize the congestion, inconvenience,
visual impact and other adverse effects, and the costs to the citizens
resulting from the placement of facilities within the public rights-of-way;
(2)
Govern the use and occupancy of the public rights-of-way;
(3)
Assist the city in its efforts to protect the public health, safety
and welfare;
(4)
Conserve the limited physical capacity of the public rights-of-way
held in public trust by the city;
(5)
Preserve the physical integrity of the streets and highways;
(6)
Control the orderly flow of vehicles and pedestrians;
(7)
Keep track of the different entities using the rights-of-way to prevent
interference between them;
(8)
Assist on scheduling common trenching and street cuts; and
(9)
Protect the safety, security, appearance, and condition of the public
rights-of-way.
(b)
This
article may also be referred to as the “Construction in the
Public Rights-of-Way Ordinance.”
(Ordinance 569 adopted 10/17/11)
This article applies to all persons that place facilities in,
on or over public rights-of-way.
(Ordinance 569 adopted 10/17/11)
The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
The City of Jourdanton, Texas. As used throughout, the term “city”
also includes the designated agent of the city.
All ordinances, laws, rules, resolutions, and regulations
of the city that are not inconsistent with this article and that are
now in force or may hereafter be passed and adopted.
Any and all of the wires, cables, fibers, duct spaces, manholes,
poles, conduits, underground and overhead passageways and other equipment,
structures, plant and appurtenances and all associated physical equipment
placed in, on or under the public rights-of-way.
A natural person (an individual), corporation, company, association,
partnership, firm, limited liability company, joint venture, joint-stock
company or association, and other such entity.
The same as in the V.T.C.A., Local Government Code, section
283.002(6), the area on, below, or above a public roadway, highway,
street, public sidewalk, alley, waterway, or utility easement in which
the municipality has an interest. The term “public rights-of-way”
does not include the airwaves above a public right-of-way with regard
to wireless telecommunications.
(Ordinance 569 adopted 10/17/11)
(a)
Any
person seeking to place facilities on, in or over the public rights-of-way
shall first file an application for a construction/building permit
with the city and shall abide by the terms and provisions of this
article pertaining to use of the public rights-of-way.
(b)
Any
person, prior to placing, reconstructing, or altering facilities in,
on or over the public rights-of-way, must obtain separate municipal
authorization from the city.
(c)
Any
person with a current, unexpired consent, franchise agreement or other
authorization from the city (grant) to use the public rights-of-way
that is in effect at the time this article takes effect shall continue
to operate under and comply with that grant until the grant expires
or until it is terminated by mutual agreement of the city and the
person, or terminated as otherwise provided for in law.
(d)
Pursuant
to V.T.C.A., Local Government Code, section 283.051, the city may
not require a certified telecommunications provider to pay any compensation
other than the fee authorized by V.T.C.A., Local Government Code,
section 283.055, including application, permit, excavation, or inspection
fees, for the right to use a right-of-way to provide telecommunications
services in the municipality.
(Ordinance 569 adopted 10/17/11)
(a)
The
city manager shall administer and enforce compliance with this article.
(b)
A
person shall report information related to the use of the public rights-of-way
that the city manager requires in the form and manner reasonably prescribed
by the city manager.
(c)
The
city manager shall report to the city council upon the determination
that a person has failed to comply with this article.
(Ordinance 569 adopted 10/17/11)
A person is subject to reasonable police power regulation of
the city to manage its public rights-of-way in connection with the
construction, expansion, reconstruction, maintenance or repair of
facilities in the public rights-of-way, pursuant to the city’s
rights as a custodian of public property, based upon the city’s
historic rights under state and federal laws. Such regulations include,
but are not limited to, the following:
(1)
At
the city’s request, a person shall furnish the city accurate
and complete information and a construction/building permit application
relating to the construction, reconstruction, removal, maintenance,
operation and repair of facilities performed by the person in the
public rights-of-way.
(2)
A
person may be required to place certain facilities within the public
rights-of-way underground according to applicable city requirements
absent a compelling demonstration by the person that, in any specific
instance, this requirement is not reasonable or feasible nor is it
equally applicable to other similar users of the public rights-of-way.
(3)
A
person shall perform operations, excavations and other construction
in the public rights-of-way in accordance with all applicable city
requirements, including the obligation to use trenchless technology
whenever commercially economical and practical and consistent with
obligations on other similar users of the public right-of-way. The
city shall waive the requirement of trenchless technology if it determines
that the field conditions warrant the waiver, based upon information
provided to the city by the person. All excavations and other construction
in the public rights-of-way shall be conducted so as to minimize interference
with the use of public and private property. A person shall follow
all reasonable construction directions given by the city in order
to minimize any such interference. Road surfaces constructed or applied
in the past ten years will not be cut unless approval is granted by
the city.
(4)
A person must obtain a construction/building permit and any other permit, as reasonably required by applicable city ordinances, prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the person’s facilities. Once a permit is issued, the person shall give to the city a minimum of 48 hours’ notice (which could be at the time of the issuance of the permit) prior to undertaking any of the activities listed in subsections (1)–(3) of this section on its network in, on or under the public rights-of-way. The failure of the person to request and obtain a construction/building permit from the city prior to performing any of the activities listed in subsections (1)–(3) of this section in, on or over any public right-of-way, except in an emergency as provided for in subsection (11) of this section, will subject the person to a stop-work order from the city and enforcement action pursuant to the city’s ordinances. If the person fails to act upon any permit within 90 calendar days of issuance, the construction/building permit shall become invalid, and the person will be required to obtain another construction/building permit.
(5)
When
a person completes construction, expansion, reconstruction, removal,
excavation or other work, the person shall promptly restore the rights-of-way
in accordance with applicable city requirements. A person shall replace
and properly relay and repair the surface, base, irrigation system
and landscape treatment of any public rights-of-way that may be excavated
or damaged by reason of the erection, construction, maintenance, or
repair of the person’s facilities within 30 calendar days after
completion of the work in accordance with existing standards of the
city in effect at the time of the work.
(6)
Upon
failure of a person to perform any such repair or replacement work,
and five days after written notice has been given by the city to the
person, the city may repair such portion of the public rights-of-way
as may have been disturbed by the person, its contractors or agents.
Upon receipt of an invoice from the city, the person will reimburse
the city for the costs so incurred within 30 calendar days from the
date of the city invoice.
(7)
Should
the city reasonably determine, within two years from the date of the
completion of the repair work, irrigation system or landscape treatment
requires additional restoration work to meet existing standards of
the city, a person shall perform such additional restoration work
to the satisfaction of the city, subject to all city remedies as provided
herein. All repairs, for streets or right-of-way, its surface and
base, are guaranteed by the person making the repair, and the person
causing the repair to be made, for the life of the street. The term “life
of the street,” for these purposes, is defined to be until such
time as that certain street or right-of-way is repaved by the city
or another, in the same location as the excavation.
(8)
Notwithstanding
the foregoing, if the city determines that the failure of a person
to properly repair or restore the public rights-of-way constitutes
a safety hazard to the public, the city may undertake emergency repairs
and restoration efforts. A person shall promptly reimburse the city
for all costs incurred by the city within 30 calendar days from the
date of the city invoice.
(9)
A
person shall furnish the city with construction plans and maps showing
the location and proposed routing of new construction or reconstruction
at least 15 days before beginning construction or reconstruction that
involves an alteration to the surface or subsurface of the public
rights-of-way. A person may not begin construction until the location
of new facilities and proposed routing of the new construction or
reconstruction and all required plans and drawings have been approved
in writing by the city, which approval will not be unreasonably withheld,
taking due consideration of the surrounding area and alternative locations
for the facilities and routing.
(10)
If the mayor declares an emergency with regard to the health and
safety of the citizens and requests by written notice the removal
or abatement of facilities, a person shall remove or abate the person’s
facilities by the deadline provided in the mayor’s request.
The person and the city shall cooperate to the extent possible to
assure continuity of service. If the person, after notice, fails or
refuses to act, the city may remove or abate the facility, at the
sole cost and expense of the person, without paying compensation to
the person and without the city incurring liability for damages.
(11)
Except in the case of customer service interruptions and imminent
harm to property or person (emergency conditions), a person may not
excavate the pavement of a street or public rights-of-way without
first complying with city requirements. The mayor or his/her designee
shall be notified immediately regarding work performed under such
emergency conditions, and the person shall comply with the requirements
of city standards for the restoration of the public rights-of-way.
Except as specifically provided otherwise in this article, excavations
authorized by this subsection shall be subject to all requirements
of this article.
(12)
Within 60 days of completion of each new permitted section of a person’s
facilities, the person shall supply the city with a complete set of “as-built”
drawings for the segment in a format used in the ordinary course of
the person’s business and as reasonably prescribed by the city,
and as allowed by law.
(13)
Joint construction.
(A)
It is the city’s desire to minimize the amount of time its
public rights-of-way are under construction. Construction in the public
right-of-way causes traffic congestion, inconvenience to vehicle and
pedestrian citizen travelers, and eventual weakness of the infrastructure.
The city will therefore require all applicants for a construction/building
permit for placement of facilities in the public rights-of-way to
endeavor to coordinate and enter into joint construction agreements
of their facilities in the public rights-of-way. Once the city receives
a person’s application for a construction/building permit, the
city will provide the applicant with the names, addresses and phone
numbers of contact persons of other applicants for construction in
the public rights-of-way. It will be the responsibility of all the
applicants to coordinate with other persons in the excavation of the
public rights-of-way for the installation, reconstruction, removal,
relocation, maintenance, operation, or repair of their facilities.
The applicants are required to use their best efforts to coordinate
with each other and provide the city with a joint construction timeline.
If the city has current applications for a construction/building permit
pending with the city and an applicant refuses to cooperate with any
other applicants for joint construction, that applicant’s request
for a construction/building permit shall be denied for the requisite
time period.
(B)
Once a construction in the right-of-way permit has been granted and
the construction project completed, the city shall impose a four-month
moratorium on construction in the public rights-of-way in any location
that has previously been disturbed or excavated. No construction/building
permit shall be issued until the city manager is fully satisfied that
the applicant has contacted and attempted to coordinate a joint construction
agreement with other pending applicants. An applicant’s failure
to cooperate in the joint construction of facilities may result in
the denial of their construction/building permit application for the
requisite time period.
(Ordinance 569 adopted 10/17/11)
(a)
In
the exercise of governmental functions, the city has first priority
over all other uses of the public rights-of-way. The city reserves
the right to lay sewer, gas, water, electric and other pipelines or
cables and conduits, and to do underground and overhead work, and
attachments, restructuring or changes in aerial facilities in, across,
along, over or under a public street, alley or public rights-of-way
occupied by a person, and to change the curb, sidewalks or the grade
of streets.
(b)
The
city shall assign the location in or over the public rights-of-way
among competing users of the public rights-of-way with due consideration
to the public health and safety considerations of each user type,
and, to the extent the city can demonstrate that there is limited
space available for additional users, may limit new users, as allowed
under state or federal law.
(c)
If
the city authorizes abutting landowners to occupy space under the
surface of any public street, alley, or public rights-of-way, the
grant to an abutting landowner shall be subject to the rights of the
previously authorized user of the public rights-of-way. If the city
closes or abandons a public right-of-way that contains a portion of
a person’s facilities, the city shall close or abandon such
public right-of-way subject to the rights of the person.
(d)
If
the city gives written notice, a person shall, as its own expense,
temporarily or permanently remove, relocate, change or alter the position
of person’s facilities that are in the public rights-of-way
within 420 days, except in circumstances that require additional time
as reasonably determined by the city based upon information provided
by the person. For projects expected to take longer than 120 days
to remove, change or relocate, the city will confer with the person
before determining the alterations to be required and the timing thereof.
The city shall give notice whenever the city has determined that removal,
relocation, change or alteration is reasonably necessary for the construction,
operation, repair, maintenance or installation of a city or other
governmental public improvement in the public rights-of-way. This
section shall not be construed to prevent a person’s recovery
of the cost of relocation or removal from third parties who initiate
the request for relocation or removal, nor shall it be required if
improvements are solely for beautification purposes without prior
joint deliberation and agreement with the person.
(1)
If the person fails to relocate facilities in the time allowed by
the city in this section, the person may be subject to liability to
the city for such delay as set forth in this code, now or hereafter
enacted.
(e)
During
the term of its municipal consent, a person may trim trees in or over
the rights-of-way for the safe and reliable operation, use and maintenance
of its facilities. All tree trimming shall be performed in accordance
with standards promulgated by the city. Should the person, its contractor
or agent fail to remove such trimmings within 24 hours, the city may
remove the trimmings or have them removed, and upon receipt of a bill
from the city, the person shall promptly reimburse the city for all
costs incurred within 30 working days.
(f)
Persons
shall temporarily remove, raise or lower its aerial facilities to
permit the moving of houses or other bulky structures, if the city
gives written notice of no less than 48 hours. The expense of these
temporary rearrangements shall be paid by the party or parties requesting
and benefiting from the temporary rearrangements. A person may require
prepayment or prior posting of a bond from the party requesting the
temporary move.
(Ordinance 569 adopted 10/17/11)
(a)
Pursuant
to V.T.C.A., Local Government Code, section 283.057, certified telecommunications
providers shall indemnify and hold the municipality and its officers
and employees harmless against any and all claims, lawsuits, judgments,
costs, liens, losses, expenses, fees (including reasonable attorney’s
fees and costs of defense), proceedings, actions, demands, causes
of action, liability, and suits of any kind and nature, including
personal or bodily injury (including death), property damage, or other
harm for which recovery of damages is sought that is found by a court
of competent jurisdiction to be caused solely by the negligent act,
error, or omission of the certified telecommunications provider, any
agent, officer, director, representative, employee, affiliate, or
subcontractor of the certificated telecommunications provider, or
their respective officers, agents, employees, directors, or representatives
while installing, repairing or maintaining facilities in a public
right-of-way. The indemnity provided by this section does not apply
to any liability resulting from the negligence of the municipality,
its officers, employees, contractors, or subcontractors. If a certificated
telecommunications provider 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 law and without waiving any defenses of the parties under state
law. This section is solely for the benefit of the municipality and
certificated telecommunications provider and does not create or grant
any rights, contractual or otherwise, to any person or entity.
(b)
A
certificated telecommunications provider or the municipality related
to or arising out of the certificated telecommunications provider’s
activities in a public right-of-way.
(Ordinance 569 adopted 10/17/11)
(a)
Nothing
in this article shall be construed as granting permission for the
use of any public way within the city, without the express consent
of the city council.
(b)
Nothing
in this article shall be construed as an assumption by the city of
any responsibility of an owner or operator of facilities not owned
by the city, and no city officer, employee or agent shall have authority
to relieve an owner or operator of a facility from such owner’s
or operator’s responsibility under this article or any other
law.
(Ordinance 569 adopted 10/17/11)
The city may institute all appropriate legal action to prohibit
any person from knowingly using the public rights-of-way unless the
person has complied with the terms of this article.
(Ordinance 569 adopted 10/17/11)
