(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 public rights-of-way
to prevent interference between them;
(8)
Assist in 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 be referred to as the "management of the public rights-of-way
ordinance."
[Ord. No. 876-00, § 1, 5-9-2000]
This article applies to all providers that place facilities
in, on, under or over public rights-of-way.
[Ord. No. 876-00, § 2, 5-9-2000]
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:
means the same as in V.T.C.A., Local Government Code § 283.002(2) (any entity that has been granted a certificate from the Texas Public Utility Commission under V.T.C.A., Utilities Code ch. 54 authorizing that entity to provide local exchange telephone service).
means the city of Richland Hills, Texas. As used throughout,
the term "city" also includes the designated agent of the city.
means the city manager of the city or the city manager's
designee.
means all ordinances, laws, rules 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.
means any and all of the wires, cables, fibers, duct spaces,
manholes, poles, conduits, underground and overhead passageways and
other equipment, structures, plants and appurtenances and all associated
physical equipment placed in, on, over or under the public rights-of-way.
means a natural person (an individual), corporation, company,
association, partnership, firm, limited liability company, joint venture,
joint stock company or association, and any other such entity.
means a certificated telecommunications provider and any
other person which now has facilities or which seeks to place facilities
in, on, over or under the public rights-of-way.
means the same as in V.T.C.A., Local Government Code §
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).
[Ord. No. 876-00, § 3, 5-9-2000]
(a)
Any
provider seeking to place facilities on, in, under or over the public
rights-of-way shall first file an application for a construction permit
with and obtain such permit from the city and shall abide by the terms
and provisions of this article pertaining to use of the public rights-of-way.
(b)
Any
provider, except a certificated telecommunications provider, prior
to placing, reconstructing, or altering facilities in, on, under or
over the public rights-of-way, must obtain separate municipal authorization
from the city.
(c)
Any
provider 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
provider, or is terminated as otherwise provided for in such grant
or by applicable law. So long as such grant is in effect, it shall
control and this article shall not be applicable in the event of a
conflict.
(d)
In
order for the city to know which providers own facilities in the public
rights-of-way within the city, each such provider that owns facilities
shall register with the city and provide the information required
by the city, on forms provided by or approved by the city. Each provider
shall update and keep current its registration with the city at all
times.
[Ord. No. 876-00, § 4, 5-9-2000]
(a)
The
city manager shall administer and enforce compliance with this article.
(b)
A provider
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 provider has failed to comply with this chapter.
[Ord. No. 876-00, § 5, 5-9-2000]
A provider 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 provider shall furnish the city accurate and
complete information relating to the construction, reconstruction,
removal, maintenance and repair of facilities performed by the provider
in the public rights-of-way.
(2)
A provider
may be required to place certain facilities within the public rights-of-way
overhead or underground according to applicable city requirements
absent a compelling demonstration by the provider that, in any specific
instance, this requirement is not reasonable, feasible or is not equally
applicable to other similar users of the public rights-of-way.
(3)
A provider
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 rights-of-way. The city may 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 provider. 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 provider shall follow
all reasonable construction directions given by the city in order
to minimize any such interference.
(4)
A provider must obtain a permit, as reasonably required by this article and any other applicable city codes, prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the provider's facilities. A construction permit is not required for routine maintenance that does not require excavation of the public rights-of-way or which does not block traffic lanes or sidewalks during peak traffic periods between 7:00 a.m. to 9:00 a.m. and 4:30 p.m. to 6:30 p.m. on weekdays, or for more than two hours during any nonpeak traffic period. Once a permit is issued, the provider 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 above-listed activities on its facilities in, on, over or under the public rights-of-way. The failure of the provider to request and obtain a permit from the city prior to performing any of the above-listed activities in, on, under or over any public right-of-way, except in an emergency as provided for in subsection (11) of this section, will subject the provider to a stop work order from the city and enforcement action pursuant to this Code. If the provider fails to act upon any permit within 90 calendar days of issuance, or within a specific period stated in such permit, the permit shall become invalid, and the provider will be required to obtain another permit.
(5)
When
a provider completes construction, expansion, reconstruction, removal,
excavation or other work, the provider shall promptly restore the
public rights-of-way in accordance with applicable city requirements.
A provider 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 provider'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, unless extended by
the city for good cause.
(6)
Upon
failure of a provider to perform any such repair or replacement work,
and five days after written notice has been given by the city to the
provider, and in the event repairs have not been initiated during
such five-day period, the city may repair such portion of the public
rights-of-way as may have been disturbed by the provider, its contractors
or agents. Upon receipt of an invoice from the city, the provider
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, that the surface, base, irrigation
system or landscape treatment requires additional restoration work
to meet existing standards of the city, a provider shall perform such
additional restoration work to the satisfaction of the city, subject
to all city remedies as provided in this article.
(8)
Notwithstanding the foregoing in subsection (7), if the city determines that the failure of a provider 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, after emergency notice has been provided, to the extent reasonable under the circumstances. A provider 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 provider
shall furnish the city with construction plans and maps showing the
location and proposed routing of new construction or reconstruction
at least five business days before beginning construction or reconstruction
that involves an alteration to the surface or subsurface of the public
rights-of-way. A provider 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 provider shall remove or abate the provider's
facilities by the deadline provided in the city manager's request.
The provider and the city shall cooperate to the extent possible to
assure continuity of service. If the provider, after notice, fails
or refuses to act, the city may remove or abate the facility, at the
sole cost and expense of the provider, without paying compensation
to the provider and without the city incurring liability for damages.
(11)
Except
in the case of customer service interruptions and imminent harm to
property or persons (emergency conditions), a provider may not excavate
the pavement of a street or public rights-of-way without first complying
with city requirements. The city manager or designee shall be notified
as promptly as possible regarding work performed under such emergency
conditions, and the provider shall comply with the requirements of
city standards for the restoration of the public rights-of-way.
(12)
Within
60 days of completion of each new permitted section of a provider's
facilities, the provider 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 provider'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 city and as allowed by law. The city may, at its discretion,
accept in lieu of as-built drawings, any reasonable alternative which
provides adequate information as to the location of facilities in
the public rights-of-way.
(13)
The
city may require reasonable bonding requirements of a provider, as
are required of other entities that place facilities in the public
rights-of-way.
(14)
In
determining whether any requirement under this section is unreasonable
or unfeasible, the city manager or his designee shall consider, among
other things, whether the requirement would subject the provider or
providers to an unreasonable increase in risk of service interruption,
or to an unreasonable increase in liability for accidents, or to an
unreasonable delay in construction or in availability of its services,
or to any other unreasonable technical or economic burden.
[Ord. No. 876-00, § 6, 5-9-2000]
(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, 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 rights-of-way occupied by
a provider, 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 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 provider's
facilities, the city shall close or abandon such public right-of-way
subject to the rights of the provider.
(d)
If
the city gives written notice, a provider shall, at its own expense,
temporarily or permanently remove, relocate, change or alter the position
of provider'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 provider. For projects expected to take longer than 120 days
to remove, change or relocate, the city will confer with the provider
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 governmental
public improvement in the public rights-of-way. This section shall
not be construed to prevent a provider'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 provider.
(e)
If
the provider fails to relocate facilities within the time allowed
by the city in this section, the provider may be subject to liability
to the city for such delay and as set forth in this Code, now or hereafter
enacted.
(f)
Notwithstanding anything in subsection (d) of this section, the city manager and a provider may agree in writing to different time frames than those provided above if circumstances reasonably warrant such a change.
(g)
A provider
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
trimmings shall be performed in accordance with standards promulgated
by the city. Should the provider, 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
provider shall promptly reimburse the city for all costs incurred
within 30 working days.
(h)
Providers
shall temporarily remove, raise or lower their aerial facilities to
permit the moving of houses or other bulky structures if the city
gives written notice of not less than 48 hours. The expense of these
temporary rearrangements shall be paid by the party or parties requesting
and benefitting from the temporary rearrangements. The provider may
require prepayment or prior posting of a bond from the party requesting
the temporary move.
[Ord. No. 876-00, § 7, 5-9-2000]
(a)
A provider
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. A provider shall furnish the city with
proof of insurance at the time of the request for construction 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 provider require adjustment 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 provider
in those instances where the state does not issue such certificates,
which provide the same coverage as required in this section. However,
for the city to accept such letters, the provider 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 printed
at the end of this article.
(b)
A provider
shall furnish to the city, at no cost to the city, copies of certificates
of insurance evidencing the coverage required by this section. 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 provider or the underwriter. If the city requests a deletion,
revision or modification, a provider shall exercise reasonable efforts
to pay for and to accomplish the change.
(c)
An
insurance certificate shall contain the following required provisions:
(1)
Name of the city and its officers, employees, board members and elected
representatives as additional insureds for all applicable coverage;
(2)
Provide for 30 days prior, written notice to the city for cancellation,
nonrenewal or material change; and
(3)
Provide that notice of claims shall be provided to the city manager
by certified mail.
(d)
A provider
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 provider 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 provider and the city. The insurance shall
be primary coverage for losses covered by the policies.
(f)
The
policy clause entitled "other insurance" shall not apply to the city
if the city is an insured under the policy.
(g)
The
provider 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 provider
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.
[Ord. No. 876-00, § 8, 5-9-2000]
(a)
Except
as to certificated telecommunications providers, each provider placing
facilities in the public rights-of-way shall, as a condition of permit
approval, 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 provider'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 provider, 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 provider, the provider'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 provider, its agents,
employees and/or subcontractors, in the performance of activities
pursuant to this article. Notwithstanding the foregoing, if the provider
has a franchise agreement effective within the city, and such franchise
agreement includes indemnity provisions in favor of the city, then
to the extent of any conflict between the foregoing and the indemnity
provisions in the franchise, the provisions in the franchise shall
be controlling.
(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 are not intended to create or grant any rights, contractual or
otherwise, to any other person or entity.
[Ord. No. 876-00, § 9, 5-9-2000]
If any of the provisions of this article or of a permit granted
under this article are violated or otherwise not followed, a permit
may be revoked by the city manager or his designee. If a provider
has not followed the terms of this article or of a prior permit issued
under this article in work done pursuant to a prior permit, new permits
may be denied or additional terms imposed. Failure to reimburse the
city as required in this article shall, in addition to all other remedies
available to the city, be grounds for recovery by the city upon the
surety bonds required in this article or by any permit issued under
this article for the amounts which should have been reimbursed, together
with all costs incurred by the city in recovering such sums, including
reasonable attorneys' fees. Any appeal from the denial or revocation
of a permit shall be to the city council, and shall be filed with
the city manager within 15 days of the action appealed from.
[Ord. No. 876-00, § 10, 5-9-2000]
This article shall be construed in accordance with the city codes in effect on the date of passage of this article to the extent that such codes 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 rights-of-way, pursuant to sections 70-256 and 70-257 or as otherwise provided by law.
[Ord. No. 876-00, § 11, 5-9-2000]
The city may institute all appropriate legal action to prohibit
any provider from knowingly using the public rights-of-way unless
the provider has complied with the terms of this article.
[Ord. No. 876-00, § 12, 5-9-2000]
