(a) 
Purpose.
The purpose of this article is to:
(1) 
Assist in the management of facilities placed in, on or over the public right-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 right-of-way;
(2) 
Govern the use and occupancy of the public right-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 right-of-way held in public trust by the city;
(5) 
Preserve the physical integrity of the streets and highways, control the orderly flow of vehicles and pedestrians, and keep track of the different entities using the right-of-way to prevent interference between them;
(6) 
Assist on scheduling common trenching and street cuts; and
(7) 
Protect the safety, security, appearance and condition of the public right-of-way.
(b) 
Title.
This article may be referred to as the construction in the public right-of-way ordinance.
(Ordinance 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(1))
This article applies to all persons that place facilities in, on or over a public right-of-way.
(Ordinance 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(2))
In this article:
Affiliate
means a person who controls, is controlled by, or is under common control with a provider.
Certificated telecommunications provider
means the same as in Local Government Code section 283.002(2).
City
means the City of Terrell Hills, Texas. As used throughout, the term "city" also includes the designated agent of the city.
City manager
means the city manager or the city manager's designee.
Direction of the city
means 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.
Facilities
means 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
means 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
means the same as in Texas 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 does not include the airwaves above a public right-of-way with regard to wireless telecommunications.)
Voice service
means voice communications services provided through wireline facilities located at least in part in the public right-of-way, without regard to the delivery technology, including Internet protocol technology. The term does not include voice service provided by a commercial mobile service provider as defined by 47 U.S.C. section 332(d).
(Ordinance 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(3); Ordinance adopting 2023 Code)
(a) 
Any person seeking to place facilities on, in or over the public right-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 right-of-way.
(b) 
Any person, except a certificated telecommunications provider, prior to placing, reconstructing, or altering facilities in, on or over the public right-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 right-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.
(Ordinance 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(4))
(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 right-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 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(5))
A person is subject to the police power regulation of the city to manage its public right-of-way in connection with the construction, expansion, reconstruction, maintenance or repair of facilities in the public right-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 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 right-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 right-of-way.
(3) 
A person shall perform operations, excavations and other construction in the public right-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 right-of-way shall be conducted so as to minimize interference with the use of public and private property. A person shall follow all construction directions given by the city in order to minimize any such interference.
(4) 
A person must obtain a permit, as 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 of forty-eight (48) hours' notice (which could be at the time of the issuance of the permit) prior to undertaking any of the above-listed activities on its network in, on, or under the public right-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 right-of-way, except in an emergency as provided for in subsection (11) below, will subject the person to a stop-work order from the city and enforcement action pursuant to the city's Code of Ordinances. If the person fails 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 right-of-way in accordance with applicable city requirements. A person shall replace and properly re-lay and repair the surface, base, irrigation system and landscape treatment of any public right-of-way that may be excavated or damaged by reason of the erection, construction, maintenance, or repair of the person's facilities within thirty (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 (5) days after written notice has been given by the city to the person, at the sole cost and expense of the person, the city may repair such portion of the public right-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 pay 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 right-of-way constitutes a safety hazard to the public, the city may undertake emergency repairs and restoration efforts, at the sole cost and expense of the person. The person shall promptly pay 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 right-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 manager 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 city manager'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 manager or 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 right-of-way.
(12) 
Within forty-five (45) 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 right-of-way.
(Ordinance 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(6))
(a) 
In the exercise of governmental functions, the city has first priority over all other uses of the public right-of-way. The city reserves the right to lay sewer, gas, water, 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 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 right-of-way among competing users of the public right-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 right-of-way, the grant to an abutting landowner shall be subject to the rights of the previously authorized user of the public right-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, at its own expense, temporarily or permanently, remove, relocate, change or alter the position of the person's facilities that are in the public right-of-way within 120 days, except in circumstances that require additional time as 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 right-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 the person. If the person fails to relocate facilities in the time allowed by the city in this section, the person can 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 manager and a person may agree in writing to different time frames 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 right-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, at the sole cost and expense of the person, remove the trimmings or have them removed, and upon receipt of a bill from the city the person shall promptly pay 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. A person may require prepayment or prior posting of a bond from the party requesting the temporary move.
(Ordinance 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(7))
(a) 
A person shall obtain and maintain insurance in the amounts prescribed by the city with an insurance company licensed to do business in the State of Texas 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 manager determines that changes in statutory law, court decisions, or the claims history of the industry or the person require adjustment of the coverage. For purposes of this section, the city will accept certificates of self-insurance issued by the State of Texas 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 city's current insurance requirements are described in exhibit "A" attached to Ordinance 1186.
(b) 
A person shall furnish, at no cost to the city, copies of 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 use reasonable efforts to accomplish the change, which change shall be made at the person's sole cost and expense.
(c) 
An insurance certificate shall contain the following required provisions:
(1) 
Name the City of Terrell Hills 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 before cancellation, nonrenewal, or material change; and
(3) 
Provide that notice of claims shall be provided to the city manager by certified mail.
(d) 
A person shall file and maintain proof of insurance with the city manager. An insurance certificate obtained in compliance with this section is subject to city approval. The city may require the 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 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 policies.
(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 all premiums and assessments for the insurance coverage required under this section 10.02.008. 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 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(8))
(a) 
Except as to certificated telecommunications utilities, each person placing facilities in the public right-of-way shall agree to promptly defend, indemnify and hold the city harmless from and against all damages, costs, losses or expenses:
(1) 
For the repair, replacement, or restoration of the 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;
(2) 
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, the 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, the person's subcontractors and the 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 subcontractors.
(c) 
The provisions of this indemnity are solely for the benefit of the city and is not intended to create or grant any rights, contractual or otherwise, to any other person or entity.
(Ordinance 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(9))
This article shall be construed in accordance with the city code(s) in effect on the date of passage of this ordinance to the extent that such code(s) are not in conflict with or in violation of the constitution and laws of the United States or the State of Texas, subject to the city's ongoing authority to adopt reasonable regulations to manage its public right-of-way, pursuant to sections 10.02.006 and 10.02.007 or as otherwise provided by law.
(Ordinance 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(11))
The city may institute all appropriate legal action to prohibit any person from knowingly using the public right-of-way unless the person has complied with the terms of this article.
(Ordinance 1186 adopted 8/8/2005; 1996 Code, sec. 13-19(12))