(a) 
Purpose.
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 cost 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 public rights-of-way to prevent interference between or among them;
(8) 
Assist in scheduling common trenching and street cuts;
(9) 
Protect the safety, security, appearance and condition of the public rights-of-way.
(b) 
Title.
This article may be referred to as the “construction in the public rights-of-way ordinance.”
(Ordinance 2000, sec. 1, adopted 2/–/00)
This article applies to all persons that place facilities in, on or over public rights-of-way.
(Ordinance 2000, sec. 2, adopted 2/–/00)
Affiliate.
A person who controls, is controlled by, or is under common control with a provider.
Certificated telecommunications provider.
Any entity that has been granted a certificate from the Texas Public Utility Commission under chapter 54 of the Texas Utility Code authorizing that entity to provide local exchange telephone service.
City.
The City of Valley View, Texas. As used throughout, the term city also includes the designated agent of the city.
Direction of the city.
All ordinances, law, 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.
Facilities.
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.
Person.
A natural person (an individual), corporation, company, association, partnership, firm, limited liability company, joint venture, joint stock company, or association, and other such entity.
Public right-of-way.
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 does not include the airwaves above a public right-of-way with regard to wireless telecommunications.
(Ordinance 2000, sec. 3, adopted 2/–/00)
(a) 
Any person seeking to place a facility on, in or over the public rights-of-way, shall first file an application for a 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, except a certificated telecommunications provider, 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 same 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 by law.
(Ordinance 2000, sec. 4, adopted 2/–/00)
(a) 
The city shall designate a person to 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’s designee requires in the form and manner reasonably prescribed by that designee.
(Ordinance 2000, sec. 5, adopted 2/–/00)
A person is subject to a 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 right 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 relating to the construction, reconstruction, removal, maintenance, operation and repair of facilities performed by the person in the public right-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 operation, 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 of other similar users of the public rights-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.
(4) 
A person must obtain a permit, as reasonably required by applicable city codes, 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 for forty-eight (48) hours’ notice (which could be at the time of issuance of the permit) prior to undertaking any of the above-listed activities on its network in, on or under the public rights-of-way. The failure of the person to request and obtain a permit from the city prior to performing any of the above-listed activities in, on or over any public rights-of-way, except in an emergency as provided for subsection (11) below, will subject the person to a stop-work order from the city and enforcement action pursuant to applicable law. If the person failed to act upon any permit within 90 calendar days of issuance, the permit shall become invalid, and the person will be required to obtain another 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 the 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 excavation, construction, maintenance or repair of the person’s facilities within thirty (30) calendar days after completion of the work in accordance with the 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 (5) 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 shall reimburse the city for the costs so incurred within thirty (30) calendar days from the date of the city invoice.
(7) 
Should the city reasonably determine, within two (2) years from the date of the completion of the repair work, that the surface, base, 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.
(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 thirty (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 fifteen (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 city’s designee 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 facilities by the deadline provided in the city designee’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 right-of-way without first complying with city requirements. The city’s 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.
(12) 
Within sixty (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) 
The city may require reasonable bonding requirements of a person, as are required of other entities that place facilities in the public rights-of-way.
(Ordinance 2000, sec. 6, adopted 2/–/00)
(a) 
In the exercise of governmental functions, the city has first priority over all other uses in the public rights-of-way. The city reserves the right to lay sewer, gas, water, and other pipe lines 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 right-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 authorized 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 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, at 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 120 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 private 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 person.
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 and as set forth in the city codes or ordinances, now or hereafter enacted.
Notwithstanding anything in this subsection (d), the city’s designee and a person may agree in writing to different timeframes than those provided above if circumstances reasonably warrant such a change.
(e) 
During the term of its municipal consent, a person may trim trees in or over the public 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 twenty-four (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 thirty (30) working days.
(f) 
A person 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. Person may require prepayment or prior posting of a bond from that party requesting temporary move.
(Ordinance 2000, sec. 7, adopted 2/–/00)
(a) 
A person shall obtain and maintain insurance in the amounts reasonably prescribed by the city with an insurance company licensed to do business in the state acceptable to the city throughout the term of a municipal consent conveyed under this article. A person shall furnish the city with proof of insurance at the time of the request for building permits. The city reserves the right to review the insurance requirements and to reasonably adjust insurance coverage and limits when the city’s designee determines that changes in statutory law, court decisions, or the claims history of the industry or the person require adjustments of the coverage. For purposes of this [section], the city will accept certificates of self-insurance issued by the state or letters written by the person in those instances where the state does not issue such letters, which provide the same coverage as required herein. However, for the city to accept such letters, the person must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the city, based on financial information requested by and furnished to the city. The person shall be subject to the city’s insurance requirements as set forth in the city codes or ordinances, now or hereafter enacted.
(b) 
A person shall furnish, at no cost to the city, copies of the certificates of insurance evidencing the coverage required by this section to the city. The city may request the deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, unless the policy provisions are established by a law or regulation binding the city, the person, or the underwriter. If the city requests a deletion, revision or modification, a person shall exercise reasonable efforts to pay for and to accomplish the change.
(c) 
An insurance certificate shall contain the following required provisions:
(1) 
Name the city and its officers, employees, board members and elected representatives as additional insureds for all applicable coverage;
(2) 
Provide for 30 days’ notice to the city for cancellation, non-renewal, or material change; and
(3) 
Provide that notice of claims shall be provided to the city by certified mail.
(d) 
A person shall file and maintain proof of insurance with the city. An insurance certificate obtained in compliance with this section is subject to city approval. The city may require that certificate to be changed to reflect changing liability limits. A person shall immediately advise the city attorney of actual or potential litigation that may develop which may affect an existing carrier’s obligation to defend and indemnify.
(e) 
An insurer has no right of recovery against the city. The required insurance policies shall protect the person and the city. The insurance shall be primary coverage for losses covered by the policy.
(f) 
The policy clause “other insurance” shall not apply to the city if the city is an insured under the policy.
(g) 
The person shall pay premiums and assessments. A company which issues an insurance policy has no recourse against the city for payment of a premium or assessment. Insurance policies obtained by a person must provide that the issuing company waives all right of recovery by way of subrogation against the city in connection with damage covered by the policy.
(Ordinance 2000, sec. 8, adopted 2/–/00)
(a) 
Except as to certified telecommunications utilities, each person placing facilities in the public rights-of-way shall agree to promptly defend, indemnify and hold the city harmless from and against all damages, costs, losses, or expenses (i) for the repair, replacement, or restoration of city’s property, equipment, materials, structures and facilities which are damaged, destroyed or found to be defective as a result of the person’s acts or omissions, (ii) from and against any and all claims, demands, suits, causes of action, and judgments for (a) damage to [or] loss of the property of any person (including, but not limited to the person, its agents, officers, employees and subcontractors, city’s agents, officers and employees, and third parties); and/or (b) death, bodily injury, illness, disease, loss of services, or loss of income or wages to any person (including, but not limited to the agents, officers and employees of the person, person’s subcontractors and city and third parties), arising out of, incident to, concerning or resulting from the negligent or willful act or omissions of the person, its agents, employees, and/or subcontractors, in the performance of activities pursuant to this article;
(b) 
This indemnity provision shall not apply to any liability resulting from the negligence of the city, its officers, employees, agents, contractors, or subcontractor;
(c) 
The provision of this indemnity is solely for the benefit of the city and is not intended to grant any rights, contractual or otherwise, to any other person or entity; and
(d) 
Certified telecommunication utilities shall be governed by the indemnity provision contained in section 283.057 of the Texas Local Government Code, as amended.
(Ordinance 2000, sec. 9, adopted 2/–/00)
This article shall be constructed in accordance with the city ordinances in effect on the date of passage of this article to the extent that such ordinances are not in conflict with or in violation of the constitution and law of the United States or the state, subject to the city’s ongoing authority to adopt reasonable regulations to manage its public rights-of-way, pursuant to sections 10.02.006 and 10.02.007 or as otherwise provided by law.
(Ordinance 2000, sec. 11, adopted 2/–/00)
Any person violating or failing to comply with any provision of this article, shall be fined, upon conviction, in an amount in accordance with the general penalty provided in section 1.01.009 of this code, and separate offenses shall be deemed committed each day during or on which a violation occurs or continues.
(Ordinance 2000, sec. 12, adopted 2/–/00; Ordinance adopting Code)